Archive for Asia and the Pacific

Social Media Platforms: A Theater for Exercising Free Speech

Guest contributor Maanya Vaidyanathan is the Policy and Engagement Manager at The Dialogue, a tech policy think-tank in India. She specialises in International Law, Gender Policies, Intermediary Liabilities and Foreign Policy. 

Guest contributor Kazim Rizvi is a Public-Policy Policy Entrepreneur and Founder of The Dialogue, a tech policy think-tank in India. Kazim is one of the leading voices in India’s tech policy discourse.

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

― John Milton, Areopagitica

Freedom of speech and expression gives individuals the right to freely express themselves without the fear of being reprimanded. This right, however, is neither absolute nor devoid of responsibility. It is a complex right that comes with reasonable restrictions, as given in Article 19(2) of the Indian Constitution

Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the International Convention for Civil and Political Rights provide for freedom of speech and expression in any medium, including online media. In 2020, the Supreme Court of India guaranteed this right in the online world in a landmark judgment on the internet shutdowns in Kashmir. 

The court ruled that freedom of speech and expression and the right to carry on any trade or business using the internet, is constitutionally protected and the restrictions on this freedom must be imposed under the terms stated under Article 19(2) of the Constitution.

Online platforms act as vital communication tools which dominate our everyday lives and act as a medium for spreading and gathering news. Over the last few years, the online world has allowed people to create their own communities and find the support, encouragement and courage that they may not find elsewhere. Additionally, the virtual space has given a lot of underrepresented sections of society an identity and a platform to express themselves freely, without the fear of judgment. The internet and its intermediaries play a pivotal role in allowing people from all over the world to connect, gather information and create a sense of belonging.

Every commodity has the potential for misuse, and the internet is no exception. Along with the safe spaces that have been created online, the online world has become a breeding ground for hate speech and fake news. 

In order to tackle the growing menace in the online space, the Government of India introduced the draft amendment to the 2018 guidelines under the Information Technology Act. The changes in the amended guidelines prescribe certain conditions for content hosting platforms to seek protection for third-party content. The aim of the guidelines is to reduce the flow of unwanted and controversial content on social media platforms by mandating ‘automated filters’ to mechanically take content off the platforms and trace the original author to hold them accountable. This step, however, is not conducive with the spirit of free speech. The amended guidelines fail to define subjective phrases that warrant removal of content – such as “decency” and “morality”- which gives way to a take-down process that is arbitrary and inconsistent.

The amended rules also risk misinterpretation as the drafters have not identified any proposed metrics to determine how such online content may harm public safety and critical information infrastructure. This shows how the guidelines are contrary to the landmark ruling The Supreme Court gave in the Shreya Singhal judgment in 2015.

Additionally, the revised guidelines compromise the practice of end-to-end encryption, which will give way to widespread government censorship and surveillance.  End-to-end encryption is a system of communication where the only people who can read the messages are the people communicating. Through this system, for intermediaries to monitor content, they would have to know what the content is, which may threaten users’ privacy along with their right to free speech.

The amended guidelines lead to the violation of an individual’s right to privacy, right to equality (allowed under Article 14 of the Indian Constitution) and most importantly, the right to free speech. These three rights are fundamental human rights, awarded to each individual through national and international legislation. The internet has the power to reach the masses and allows everyone the opportunity to have a voice and call out instances of injustice and mistreatment that they may witness. Through social media platforms, citizens across the world can unite despite territorial limitations. Hate speech makes the internet a toxic environment to navigate, while fake news makes it an unreliable environment. However, censoring and controlling the speech of every user will not curb these nuisances. 

Policies are required to take into consideration the interests of all people, either individually or collectively. What is therefore desirable is regulation of social media, not its censorship. Social media platforms need to continue to remain theaters for safely exercising the right to free speech.

Fait Accompli: Singapore Again Upholds Section 377A Criminalising Homosexuality

Co-authored by guest contributors Paras Ahuja and Rahul Garg. 

Paras Ahuja is an undergraduate student pursuing law at the National Law University, Jodhpur. Her research interests include human rights, constitutional law and feminism. 

Rahul Garg is an undergraduate student pursuing law at the National Law University, Jodhpur. His research interests include gender studies, human rights and international humanitarian law.

On 30th March, 2020, the Supreme Court of the Republic of Singapore in Ong Ming Johnson v. Attorney-General upheld the constitutional validity of Section 377A of the Singapore Penal Code, 1871. Section 377A punishes any male person who commits an act of “gross indecency” with another male person, whether in public or in private. The judgement marks itself as a regressive touchpoint in Singapore’s progression towards inclusiveness and equality. 

Article 14(1) (a) of the Constitution of Singapore guarantees every citizen the right to freedom of speech and expression. The petitioners in this case contended that Section 377A derogated this right by failing to recognize one’s sexual orientation to be a part of the term “expression” within Article 14. While interpreting the term “expression,” the court applied the rule of “ejusdem-generis”. The rule postulates that wherever there is an enumeration of a list of specific things followed by a generic term, the genus term (here, “expression”) should be interpreted in context of the specie term(s) (here, “speech”) and not in its widest possible construction. The court, upon application of this rule, observed that “expression” is therefore restricted only to verbal “speech” and excludes sexual identity of a person. It, therefore, held that the right to freedom of expression is encompassed within the right to freedom of speech, reducing the term “and expression” to redundancy and surplusage. 

We argue that that is an erroneous application of ejusdem-generis. It is settled law that ejusdem-generis should not be applied in a way that makes the usage of the genus term redundant in a provision. This is a fundamental principle of statutory interpretation pointed out in case laws citing Sutherland. The Singaporean court’s interpretation, on the other hand, renders the term “expression” otiose and goes against the principle that legislature doesn’t use words in vain. 

Additionally, the court relied on the marginal note of Article 14 [i.e. “Freedom of speech”, assembly and association] to ascertain the scope of the provision in order to buttress its holding that “expression” is subsumed within “speech”, since the marginal note mentioned only “speech”. This reliance conflicts with the Singapore Supreme Court’s former observation in the case of Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd, where marginal notes were held to be non-exhaustive and imprecise and therefore, not determinative enough of the true contents of a provision. 

The court, furthermore, conveniently maneuvered its way to protect Section 377A from the violation of right to life and personal liberty, enshrined under Article 9(1) of the Constitution. In refusing to include the protection of “homosexual-identity” within the scope of personal liberty, the court aligns its reasoning by saying that the right to personal liberty was not an absolute one, but was qualified. It stated that “unenumerated rights were not capable of specific protection.” However, this seems particularly faulty, as “personal liberty” by itself is an abstract right; it is a collection of rights involving several aspects of a person’s life and doesn’t guarantee any specific individual right singularly. In this context, the exclusion of “unenumerated rights” from the scope of personal liberty will leave it hollow and subject to arbitrary discretion as to its scope. 

In its reasoning, the court also observed that Section 377A does not criminalise a male homosexual for his “homosexual orientation”, but only for the actus reus consisting of performance of a homosexual activity with another man. The court additionally stated that a heterosexual man would be equally liable if he were to commit a homosexual act. This distinction between criminalising the “state of homosexuality” and the conduct, that is, the “homosexual act” is farcical and theoretical. This distinction fails as it renders the manifestation of the sexual identity impractical by punishing the conduct. Identifying the flaw in such an argument, the US Supreme Court in the case of Lawrence v. Texas noted that when the act that is criminalised is so closely correlated with the “state-of-being-homosexual”, it resultantly has the effect of defining the very identity as criminal. 

The court, in its subtlety, eschewed from answering the question of whether or not the sexual orientation of a person is an immutable factor. The question of immutability was deemed central by the court since the granting of the right to life and personal liberty in this case was considered to be contingent on the recognition of sexual orientation as immutable. However, frustrated with overwhelming scientific evidence from both sides in this regard, the court eventually declared this question outside the realm of legal discussion, belonging rather to the area of scientific controversy. We argue that there is no relevance of a conclusive determination on the aspect of immutability to the question of recognition of the fundamental rights. Either way, there is vacuity in the reasoning of the court as to why a chosen sexual orientation should not be entitled to the same constitutional protection in as much as an immutable sexual orientation would be, along the “born-with-it”/“it-is-my-choice” spectrum. Therefore, regardless of homosexuality falling anywhere between this immutability/choice spectrum, the larger human rights violation relates to the resultant stigma associated with criminalization. The judgment ultimately legitimises an assumed sense of normalcy which according to the court, is only heterosexuality. At the same time, it portrays homosexuality as an anomaly not protected by fundamental rights. 

The judgement, therefore, observes a false understanding of various provisions and judicial tools of interpretation, seemingly to achieve a predestined holding. The bench microcosmically imposes its own ideas of heteronormativity on the Singaporean society, which is not only upsetting, but also mistaken.

The Tibetan Model of Resistance: Human Rights in Tibet

Guest Contributor Divya Malhotra is pursuing her Ph.D. from the School of International Studies, Jawaharlal Nehru University (JNU) and is a non-resident fellow at the Middle East Institute, New Delhi where she monitors and documents Pakistan-Middle East relations. Her areas of interest include human rights studies. Her writing has appeared in the Times of Israel blog. 

The world today is riddled with violence and conflict. Countries across Asia and Africa are engaged in a perpetual struggle for political and religious autonomy and self-determination. Be it West Asia’s Arab Spring, Israeli-Palestinian conflict over land, the Baloch and Pashtun separatist movements in Pakistan, or the turmoil in Kashmir, violence has become accepted as a status-quo in these areas. However, one community’s struggle for separation has had an intriguingly peaceful and spiritual dimension: the Tibetan resistance movement.     

Historical Background

The Tibetan independence movement is a political movement for the independence of Tibet and the political separation of Tibet from China. It has been principally been led by the Tibetan Diaspora across the globe. In 1950, China’s People’s Liberation Army invaded Tibet, marking the beginning of their struggle for self-determination. In May 1951, the agreement of the Central People’s Government and the Local Government of Tibet on Measures for the Peaceful Liberation of Tibet was signed in Beijing, giving Tenzin Gyatso, the 14th Dalai Lama, control over Tibet’s internal affairs. The tensions between both sides continued and in July 1956, Qimai Gongbo, headman of Tibet’s Gyamda County, led a rebellion against the Chinese government. In 1956, the Dalai Lama reached New Delhi via Sikkim where his elder brother Norbo joined him after his trip from the US. As per Chen’s account, Norbo advised the Dalai Lama to either lead the Tibetan struggle from India or the US. The Lama, however, returned to Lhasa to lead his people. 

In March 1959, China brutally suppressed mass uprisings in Tibet, leaving 545 Tibetan rebels dead and over 4,800 wounded. “We only lived to kill the Chinese”, recalls one Tibetan veteran, hinting at the essentially violent character of the freedom movement. At the outset of the brutal uprising in 1959, fearing for his life, the Dalai Lama and his entourage fled Tibet with the help of the CIA, crossing into India in March and reaching Tezpur in Assam on 18 April. Eventually he set up the Government of Tibet in Exile in Dharamshala, India, popularly known as “Little Lhasa“. 

The Central Tibetan Administration (CTA), headquartered in McLeod Ganj, Dharamshala, was established in 1960 as the “sole and legitimate government” of Tibetans. The CTA was authorised to look after the immediate and long-term needs of Tibetan people with special focus on seven major areas, namely, religion and culture, home affairs, finance, security, education, health, and International Relations. Under this charter and structure, the series of institutions run by the Dalai Lama have been creative, constructive and productive in nature.  

The Tibetan flag, adopted by the 13th Dalai Lama in 1916 and used in official capacity through 1951. Since then, it is used only by the Government in Exile and is symbolic of an ongoing freedom movement.

After the founding of the government in exile, he re-established the approximately 80,000 Tibetan refugees who followed him into exile in agricultural settlements. The Tibetan struggle has not been at rest since then, as has also been well documented by famous authors including Qingying Chen, Brazinsky and Melvyn Goldstein

Two external players have been important to the Tibetan struggle during its infancy; India – which offered an alternate home to the Tibetan community in exile and the US, as elaborated by Qingying Chen in his detailed treatise “Tibetan History”. With the principal intention of containing Communist China, the intelligence agency is believed to have channelled annual amount of USD 1.7 million for anti-China operations, including USD 180,000 annual subsidy for the Dalai Lama. As per Gregg Brazinsky, Kennedy and Johnson administration offered continued support to Tibetan rebels, and two “Tibet houses” were established in New York and Geneva to coordinate with Tibetan leadership. Washington and Delhi’s support to Tibet was perhaps motivated by anti-Beijing sentiments and respective geopolitical interests. The US support was helpful till the 1990s, but after the fall of communism in 1989, the American policy toward China changed and “they stopped their help”. Nevertheless, their support came handy for the fragile Tibetan movement. 

Characteristics of the Movement

While most of the other global secessionist movements have focused on training militia and perpetuating violence, this movement has essentially had a spiritual dimension to it. The Dalai Lama guided and led his people in a profound and positive manner. For any political movement, the personality of the leader is instrumental to shaping the struggle. By that logic, the Dalai Lama’s positive personal spiritual aura has also spilled over into the Tibetan resistance movement. Although he holds immense influence for Tibetans and their politics, the Dalai Lama still sees himself as a “simple Buddhist monk” and not a political leader. His day starts at 3 in the morning and ends at 7 in the evening: a reflection of his simplistic and pristine lifestyle. Yet, he continues to mentor a seven decades old freedom struggle and his political views revolve around the notion of democracy. In his own words, “No system of government is perfect, but democracy is closest to our essential human nature. So it is in all our interests that those of us who already enjoy democracy should actively support everybody’s right to do so.”

Labelled as a “brilliant master of this elusive modern equilibrium”, the Dalai Lama is an enigma. In his book The Open road: The Global Journey of the Fourteenth Dalai Lama, Pico Iyer beautifully articulates how the Dalai Lama spends his day “meditating on the roots of compassion and what he can do for his people, the Chinese brothers and sisters who are holding his people hostage” and at the same time, continues his spiritual journey. 

Instead of defining his people’s struggle in terms of “Good Tibetans, bad Chinese”, the Dalai Lama, with an essentially positive prism, sees the issue as a struggle between “Potentially good Tibetans, potentially good Chinese”. In 1989, the Dalai Lama was awarded the Nobel peace prize for his approach to Tibetan liberation. It won’t be wrong to state that the Dalai Lama always emphasized on non-violence and practises of meditation, yoga and spirituality for protecting human rights.

Introspection, meditation, spirituality and peaceful mediation have been at the core of the movement. Even though the Dalai Lama retired from his position of the political head of Tibetan people in 2011, his ideas and ideals continue to define the movement. Human rights violations have been documented in Tibet, where Chinese authorities continue to restrict and refrain the people from expressing their support for freedom. There have been cases of arrest and self-immolations. Yet the struggle in itself has been devoid of the massive bloodshed and violence which dominates and depicts the struggle of other communities in the rest of the Asian subcontinent. Tough, resilient and persistent, the community has not given up on its demands in accordance with the Dalai Lama’s peaceful ethics.  

Despite the armed uprisings in the beginning and continued violent suppression by Chinese authorities, the resistance movement in Tibet has been relatively peaceful in nature, following the Dalai Lama’s peace oriented approach. However one may wonder whether this approach to secession has yielded any tangible gains? A basic overview clearly indicates that the Tibetan struggle has not reaped any concrete benefits. The number of casualties varies from a few thousands to millions, based on different data sources. However at a comparative level, what have the Palestinians, the Balochs, the Pashtuns and the Kashmiris gained by adopting violence? All these communities, allegedly suppressed by the powerful regimes, have not made much notable territorial or political gains either way.     

Amidst perpetual conflict and bloodshed, the peaceful nature of the Tibetan struggle, because of the Dalai Lama’s influence, is an inspiration to a new generation. Perhaps if the world were to follow a Tibetan model of struggle, logic and peace will prevail while giving everyone a chance to express their dissent without harming the others.   

A State’s Responsibility in an Epidemic: Human Rights and the Coronavirus Outbreak

Guest Contributors Bodhisattwa Majumder and Devashish Giri are penultimate year students at Maharashtra Law University Mumbai. Their interests include Constitutional Law, Public International law and Maritime law. Any discussion related to the paper can be made via mail at bodhisattwa@mnlumumbai.edu.in or Giridevashish15@gmail.com

The outbreak of Coronavirus or COVID-19 (“Coronavirus”) from Wuhan, China (“People’s Republic of China “) has engulfed as many as twenty four countries across the globe with a medical emergency and has claimed more than 3,800 lives as of now. 

This strain of the virus is graver than the other types of Coronaviruses as it has never been identified in humans before. Coronavirus belongs to the zoonotic group of viruses which can affect a human being with a range of health ailments ranging from the common cold to serious problems such as Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV). The World Health Organization and other countries including the US have declared it as a “Global Public Health Emergency”.  In order to restrict the transmission of the virus, however, China has taken various restrictive measures which have caused serious human rights violations including but not limited to arbitrary censorships, lockdowns, quarantines, police suppression, and mass detentions.

In outbreaks of viruses with communicable properties, response time in communicating information and alerting the public and world about the dangers of the virus is of the essence. Even a delay of a month can have a huge impact; in the absence of proper information, crowded public places act as the hub for transmission. 

Early on in the outbreak of Coronavirus, citizens of China were deprived of their freedom of expression and free speech. The Wuhan province was under strict observation by the Chinese government, and any information related to the outbreak was termed as mere “rumours” and prohibited from being shared across any social media platform. There were numerous reported instances of police suppression when doctors, nurses and other associated personnel working in the frontlines faced strict penal measures by the police on grounds of spreading the information related to the virus.

 It was only due to a brave whistleblower, Chinese Dr. Li Wenliang, who risked his own safety and livelihood to spread news of the outbreak in Wuhan to his alumni peers via WeChat, that the world was able to learn about this dangerous phenomenon that China had tried to keep under wraps. He sent his message on December 30, and China alerted the World Health Organization (WHO) about its outbreak on December 31. Since January 1, researchers have learned that China has been censoring WeChat accounts for words related to the Cornonavirus, blocking certain combinations or anything negative towards President Xi Jinping.  Furthermore, China placed the entire affected province under lockdown without any prior notice, which deprived the residents any chance to ensure the availability of basic amenities of life such as food and medicine. Such a measure has affected vulnerable populations of society, including those with disabilities, illness, and the elderly and deprived them of their essential needs. These are direct violations to their right to health. There has been a mass-quarantine process of millions of people for the cause of limiting the spread from the city of Wuhan. Any offering measure by any section of society be it, Lawyers, Activists or Artists, has been prohibited, censored, threatened and harassed by the organs of the government. Despite having strict regulations against discrimination regarding communicable diseases, the machinery has apparently failed.

Coronavirus has not limited itself to Chinese province and other South-East Asian states have been affected, although not every state has adopted measures which violate human rights. Amidst the Chaos, the approach of Singapore has been a silver lining, which has won praises for its benevolence and informative approach rather than an authoritarian one. Singapore’s approach has been direct and effective to reduce panic, rumours and conspiracy theories, aligning itself correctly with the statement of the Prime Minister which was posted on social media in three languages, “Fear can do more harm than the virus itself. The speech alone was proven effective as the following weekend witnessed a reduction in crowds in the city-state. The Singaporean approach included prevention, contact tracing, quarantine and access to information. Singapore’s official website of the Ministry of Communications and Information provided useful and practical advisories on topics such as ‘When to See a Doctor’, ‘What happens to suspect cases’ and ‘How to practice good personal hygiene’. The approach of Singapore prioritized the welfare and safety of citizens over political stability and economic costs, which won praise across the world. Singapore was among the most affected regions of Asia (Orange alert). Still, it chose to inform its citizens rather than bury the situation. The constant live news coverage, transparency about developments, and inclusion of health workers in planning has proved to be effective in controlling the situation and reducing  panic among citizens. 

Public International Law dictates that regardless of a health emergency or an epidemic, the measures taken to affect human rights should be legal, necessary, reasonable and proportional. Every measure must be recorded in evidence and there should be strict adherence to the procedure prescribed. An undemocratic regime leaves no scope for a consequence to the state for failures in terms of epidemic response and as a result, there is no accountability from the state. The people residing in affected areas are shunned out without any scope for the expression of dissent or discontent or even a cry for help from the international community. Human rights cannot be allowed to be violated under the garb of a health emergency and every nation should take a lesson from the incident of the Coronavirus outbreak. The priority of taking measures to restrict the outbreak lies in equal pedestal with the significance of following due process without depriving the people of their human rights. The international community needs to take a stand, and every response from a government during the outbreak of an epidemic or a pandemic must be within the four corners of human rights.

Non-Violence in Communal War in Central Nigeria

By James Courtright, Staff Writer for RightsViews

On January 30th Dr. Jana Krause came to speak with students and faculty at Columbia’s School for International and Public Affairs about her new book, “Resilient Communities: Non-Violence and Civilian Agency in Communal War.” Her work centers on communal conflict – non-state armed conflict between identity groups – in Plateau state in Nigeria and Maluku province in Indonesia. In both places the violence tended to be simplistically referred to as Christian against Muslim, but upon further investigation she found it was deeply rooted in local political and economic dynamics and narratives. After explaining how communal violence was organized, she then delved into neighborhoods in Nigeria and Indonesia where violence did not occur, analyzing how the choices of civilians and their collective efforts to prevent fighting saved the lives of hundreds of people.

Conflict in Jos

When she first visited Jos, Nigeria in 2010, Dr. Krause had to pass through multiple checkpoints along the road from the capital Abuja before entering a city where half-destroyed houses lined the streets and every major traffic junction was accompanied by a heavy military presence. As she started comparing her interviews with journalistic accounts, data sets, and human rights reports she realized that conflict in the city of Jos and rural Plateau State claimed more than 7,000 lives between 2001 and 2010. This violence, she concluded, was not sporadic clashes – it was war.

Dr. Jana Krause. Photo from her website.

Dr. Krause builds on the work of political scientist Stathis Kalyvas, whose work has advanced the idea that what civilians do in conflict matters. Unlike the journalistic shorthand of “neighbors killing neighbors,” she explained, violence is usually perpetrated by militias formed in surrounding neighborhoods. These militias would mobilize after hearing rumors that their perceived enemies were arming themselves, and then travel to where they believed clashes were occurring or where they had planned to attack. When they arrived in other communities, some residents there would collaborate with militias to identify “the enemy” based on their identity or hyper local grievances. Thus, communal violence results from rumor, threat assessment, mobilization and information sharing, grievances linked to previous violence, and local conflicts.

After delving into these dynamics, she began asking if residents knew an area that was vulnerable and religiously and socio-economically mixed, but where violence did not occur. She was pointed to Dadin Kowa, a community that sits in the southern suburbs of Jos. As she spent more time with residents of Dadin Kowa, she came to better understand how they managed to maintain an uneasy and tense peace while thousands of people were being killed or forced to flee their homes in surrounding neighborhoods.

How to avoid or forestall violence?

While many community leaders across Jos strove to avoid violence during this painful decade, Dadin Kowa’s leaders were arguably the most successful. One of the main reasons for this, Dr. Krause argued, was that both Christian and Muslim community leaders and everyday residents painstakingly created a broader identity as ‘being a resident of Dadin Kowa’, overcoming the fractious Berom Christian and Muslim Jasawa political agendas. From early on there was a tacit agreement, and later a more formal one, between religious leaders that they would preach to their respective congregations to avoid violence. People were still politically polarized, but when it came to violence, leaders constantly stressed a deeper fealty to their shared humanity and their neighborhood of Dadin Kowa.

Women’s groups also played a key role. At one point, tensions at the market became so serious that women began to travel out of the neighborhood to buy their vegetables and staples from their own religious group, dividing the community further. As tension at the market became a serious hindrance in their lives, women across the religious divide began meeting and sharing their stories, fears, and aspirations. As Dr. Krause writes in her book these meetings “fostered determination that their neighborhood would not be devastated by clashes.”

However, creating a unifying identity was not enough in and of itself. Dr Krause pointed out how civilians consolidated social control of the neighborhood. Women’s groups and other informants would pass information about suspicious activities or rumors to community leaders, who at times used open threats and even violence against people in the community to maintain order.

Young men in the community were told that under no circumstances were they allowed to go and fight with groups outside the community, and at the first sign of trouble they should return home. A clear communications network was built by community leaders so whenever trouble appeared on the horizon leaders on both sides of the religious divide could call and coordinate their actions to calm tensions. Mixed youth patrol groups were even created to guard the neighborhood and coordinate with the military and police.

In addition to dense networks built within Dadin Kowa, to deter attacks leaders in the community engaged in extensive negotiations and coordination with leaders in neighboring communities as well as the police and military. They even paid thinly veiled bribes to facilitate good relations and regular police patrols. For example, some of the women’s groups cooked lunch for the soldiers in order to maintain good relations. Both Christian and Muslim community leaders from Dadin Kowa went to mosques and churches in neighboring suburbs of Jos and publicly presented their agreement not to fight in Dadin Kowa.

In at least one case violence was averted by the actions of a single individual. In January 2010 when two external Christian militias threatened Dadin Kowa a community leader identified as Timothy in Dr. Krause’s book went out and single handedly negotiated with the militias, telling them that they would not be allowed into the neighborhood and no one would collaborate with them. He slowed their advance until they could hear the gunshots of the military nearby, and the militia turned around without harming anyone in Dadin Kowa. Timothy had lived through the Nigerian civil war in the 1960s and understood the dynamics of how violence happened and how and when to intervene.

In some cases, peace was only maintained with the credible threat of violence. One of Dr.  Krause’s interviewees, a Christian resident of a nearby neighborhood identified as Abraham, revealed that not only was the agreement not to fight in Dadin Kowa well known outside the neighborhood, it was also understood that the agreement would be enforced with violence. “If the boys from outside want to overcome them, then the Dadin Kowa boys will fight them,” Dr. Krause quotes Abraham saying in her book. “If you go there to fight, they will kill you. That’s the agreement.”

However, Dr. Krause stressed that Dadin Kowa was not an oasis of harmony during these episodes of violence. The community was tense as people fleeing violence sought refuge and leaders struggled to exert control over rebellious youth. Tensions within women’s groups over rumors and unfair burdens of labor also created problems. In some cases, as in the January 2010 episode mentioned previously, people in Dadin Kowa agreed it was the fateful intervention of a single person which averted catastrophe.

What can Dadin Kowa teach the world?

After her presentation Dr. Krause was asked about the implications of her work for practitioners. She responded by saying that we need to complicate the “islands of peace” idea that non-violence is isolated from outside forces. Instead, she pointed out, Dadin Kowa was deeply enmeshed in the conflict environment and political dynamics. The leaders of Dadin Kowa who were most effective at averting violence were those who understood exactly how the violence was organized because they had seen it before. Before foreign organizations rush in to “sensitize” people about conflict dynamics, she continued, it is important to recognize that foreigners arriving and starting programs has its own political and economic implications for the community and its neighbors.

While her findings from Nigeria and Indonesia shared some basic similarities, Dr. Krause stressed that knowledge of local contexts should be foremost in the minds of outsiders seeking to work on these issues. She concluded her talk by pointing out that in both Dadin Kowa and Indonesia non-violence is less connected to pacifist attitudes but a desire to survive and partly results from direct threats of violence and coercion against those most likely to engage in killings. Acknowledging this uncomfortable reality is essential in designing local and international peace building efforts.

Is Tolerance of Human Rights Abuses out of Fashion? A Cautionary Tale for Retail Giants

By Kelly Dudine, staff writer at RightsViews

In a Bangladeshi garment factory, a woman works seven days a week, morning to night, and still cannot afford to feed and clothe her children at home. In India, young women working in cotton mills face appalling work conditions, low pay, violence and exploitation.

This is the cost of fast fashion, poorly regulated labor markets, and ultimately, the tolerance of human rights abuses by the business community. 

However, shifts in public opinion, consumer behavior, and investment strategies are testing business-as-usual more than ever before. The bare minimum is no longer enough – the rules are changing and the business community will need to make drastic, meaningful changes in order to adapt.

The recent filing of bankruptcy by Forever 21 is a strong cautionary tale to all retail giants. The company has been in troubled waters for years. It expanded too quickly and carelessly, and faced lawsuits and accusations of worker exploitation. Despite the adaptation of a social responsibility policy, which outlined sustainability goals including worker health and safety, the company made no improvement in human rights standings over the years. In the annual Ethical Fashion Report, which looks at criteria including living wages, forced labor, child labor, and worker empowerment initiatives, Forever 21’s overall score continued to decline, dropping from a D+ in 2017 to a D- in 2019. For a company whose consumers are largely young women, these allegations are particularly damaging, contributing to a loss of consumer interest and falling foot traffic.

Forever 21 is not alone in these challenges, and the entire fashion industry should take note. Millennials are increasingly buying with their values and Generation Z views consumption as a matter of ethical concern. According to eMarketer, 74 percent of millennial respondents expect brands to take public stands on important social values. To increase consumer markets and customer loyalty, brands should be implementing social initiatives that support and empower their workers in all sectors. 

Money managers, too, are increasingly investing based on ethics and sustainability, using the Environmental, Social and Governance (ESG) criteria to screen potential investments. These criteria look at issues that were not traditionally included in financial analysis, like a corporation’s treatment of workers, but are now understood to have significant financial relevance. According to Forbes, the use of ESG criteria and efforts to achieve corporate sustainability are associated with better financial results.

According to the latest report from the US SIF Foundation, investors used ESG criteria in portfolio selection equaling $11.6 trillion in US-domiciled assets in early 2018, which is a 44 percent increase from just two years earlier. The report also shows that assets managed with human rights criteria were one of the leading priorities at $2.2 trillion. With more money managers moving their investments to socially responsible businesses, corporations with human rights abuse allegations could have a problem securing capital in the near future.

 The business community can also expect increased pressure from international human rights bodies. In June 2019, the International Labor Organization adopted a new Convention to combat violence and harassment in the workplace. The Convention sets new international labor standards and “reminds member States that they have a responsibility to promote a general environment of zero tolerance” for workplace violence. The Convention is legally binding for member States, which will no doubt increase scrutiny of the fashion industry, which is plagued with accusations of gender-based violence against female workers. Retailers can expect increased responsibilities of due diligence and prevention, as well as aggressive action and redress when abuses occur.

The simple fact is that there is nothing superficial or whimsical about the fashion industry – it is a massive empire, built in large part due to an intentional race to the bottom, and at great expense to the workers that it so desperately depends on. The industry was estimated to be worth $2.4 trillion in 2017, and growing, making it the world’s seventh-largest economy when ranked alongside the gross domestic products (GDP) of individual countries, according to a report by McKinsey and Company. However, the Asian Wage Floor organization estimates that for an item of clothing, only between 0.5-3 percent of the cost goes to the worker who made it. The industry thrives by dealing in poverty wages. This is especially alarming when considering the fashion industry employs millions of people, many of which are women and young girls located in countries where human rights abuses are not uncommon, and where women are particularly socially and economically vulnerable. 

How can an industry worth trillions still be paying poverty wages to the workers that make it all possible? Whether intentionally or not, international corporations are part of a complex system that keeps millions, especially women and young girls, trapped in a cycle of poverty. 

With its financial capital, reach into underserved labor markets, and direct consumer interaction, the global fashion industry could be an incredible driver of social good and equality, able to spur great economic growth through employment opportunities and vocational trainings in communities that need it most. There are, of course, corporations that are doing just that, and they are thriving among millennial consumers. Brands like H&M and Lululemon Athletica, which have scores of B+ and A-, respectively, in the 2019 Ethical Fashion Report, remain fashion favorites. Currently, however, the bare minimum is the norm in this industry. 

Statements and codes of conduct kept neatly on website pages are not enough. To make real change, corporations must collaborate and work together to disrupt the status quo and drastically overhaul the way global supply chains function. 

The first place to start: increase wages of all workers. No one should be earning less than a living wage in such a massive industry. Invest in worker empowerment programs, skill building, and education for employees. Invest time and resources in ensuring that companies comply with The UN Guiding Principles on Business and Human Rights

Human rights abuses are predictable and preventable; businesses ought to do the work now to avoid future risk. What may feel like a short-term financial hit allows investment in a healthier, more productive market that corporations will benefit from in the years ahead. As McKinsey and Company states, “brands must find the courage to self-disrupt their own identity and the sources of their old success.” To satisfy changes in public and investor behavior, and win new generations of consumers, brands must enact real, human rights driven changes from the executive suite all the way to the factory floor.

An Unending Crisis: India’s Amendment to the Citizenship Act

Guest Contributor Anant Sangal is currently an undergraduate student of B.A., LL.B. (Hons.) at the National Law University, Delhi, India. He is deeply interested in the issues of constitutional law and human rights law

The sledgehammer of the Indian State is powerful and surreptitious. It is powerful because its impact is realized and is then hard to undo and is surreptitious, because it often acts in the ambit of the Indian Constitution. Most recently, it was cracked hard on the illegal Muslim immigrants from Afghanistan, Bangladesh, and Pakistan. In the first-half of December 2019, the Parliament of India passed a legislation, which sought to amend (“Amendment”, hereinafter), the Indian Citizenship Act, 1955 to provide for the citizenship to the people belonging to certain specified communities from India’s three neighboring countries, that is from Bangladesh, Afghanistan, and Pakistan. 

The new proviso to Section 2 (1) (b) of the 1955 Act reads, “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;.

A plain reading of the proviso to the Section will establish this wide and clear that the sole community excluded from the realm of protection of the newly amended statute is the Muslim community. As per the Statement of Objects and Reasons appended to the Citizenship (Amendment) Bill, 2019 and in his speech while tabling the Amendment in the lower-house of the Parliament, the Union Minister of Home Affairs suggested that the Amendment seeks to provide a home to the religious persecuted minorities in either of these three theocratic nations, where Islam is the State religion. Therefore, the primary assumption is that people belonging to only these six communities are persecuted on the basis of their religion and hence, India must act as their homely abode.

The ostensible exclusion of the Muslim community is based on the assumption that they are not persecuted at all in those nation-states, where Islam is the state religion. However, this is far from being true. The Ahmediya and the Shia sects of the Muslim community have faced severe persecution at the hands of the Sunni Muslims in Pakistan and the Rohingyas of Myanmar continue to be widely persecuted by the Buddhists in Myanmar. The 2013 United Nations report states that the Rohingya Muslims are the most persecuted in the world. Therefore, the assumption and the justification the legislation provides for excluding the Muslim community is false and does not have a very strong foundation either. Rather, the new basis of granting citizenship to the illegal immigrants is based on a majoritarian conception. 

The Amendment projects that the true civilizational abode of the Hindus is only India. Therefore, it appears to be yet another step towards solidifying the argument that we hear for long about how the English have England, the Americans have America, but the Hindus do not have Hindustan (India). The Amendment finally seeks to legitimize a majoritarian and an exclusionary idea of citizenship, where a deliberate attempt is made to exclude only the immigrants belonging to the Muslim community from acquiring the Indian citizenship. The real dangers of legalizing something of this kind is while we do not have an established theocratic state but the selective targeting of a selected community helps us inch closer to an undeclared theocratic state, where rights for minorities remain at the whims of the majority.

That said, the founding fathers of the Indian Constitution were torn between choosing the just mode for granting citizenship to the people. The country was reeling under the aftermath of a bloody and a gruesome partition, where the Indian subcontinent was divided into two halves on the communal lines. In that setting, the drafters of the Indian Constitution, the great visionaries they were, decided to side with jus soli as the basis for the grant of citizenship rather than jus sanguinis. Jus soli provides for citizenship on the basis of the place of birth of an individual i.e. the soil, on which such person is born. Jus sanguinis is a much more elite and a racist conception of citizenship, where the citizenship is determined by an individual’s descent or ethnicity of one or both parents.

Operating under the scar of partition, it was surely very progressive to choose jus soli as the basis of citizenship and include the same in Part II of the Indian Constitution. The Indian Citizenship Act, 1955 was in furtherance of this conception itself. However, the successive Amendments to the Act dragged the basis of citizenship from jus soli to jus sanguinis, with religion acquiring a substantive stake in this shift. In 2004, the Act was amended to provide that even if a person was born on the Indian soil but had even one parent as an illegal migrant at the time of her birth, such person will not qualify for the grant of Indian citizenship. I mention that the Amendment was religiously motivated and targeted a specific community because it was introduced to neutralize the heavy efflux of people from Bangladesh, majority of whom are Muslims and happened to give birth to their children in India. The present Amendment is just another step furthering that very idea.

After the legislation was assented to by the President of India, the final stamping authority required for converting any bill into a legislation after the same has been passed by both the houses of the Indian Parliament, there has been a massive public uproar in the entire country. The entire political opposition has been on the streets rallying against the passage of the Amendment and a slew of petitions have already been filed in the Supreme Court of India (the apex Indian court), challenging the constitutional validity of the legislation. The petitions do, and rightly so, question the Amendment to be arbitrary as the classifications drawn by the Amendment are based on the inherent qualities of a human being, which the Indian Constitution prohibits. 

Under Article 15 of the Constitution, while the same is applicable only to the citizens of India, the presence of certain listed categories mandates that discrimination on the basis of the inherent qualities of a person is prohibited by the Indian Constitution, two of which are religion and place of birth. In that sense, the classifications drawn by the new Amendment itself are based on religion and the country of that person and hence, will fall fowl of the equality code of the Constitution. While it is being extensively argued how the limitation of applicability of Article 15 operates against the Muslim illegal migrants itself, it has to be recognized that Article 14, which is applicable to all persons and not just to citizens, will operate on the same principle which forms the basis of Article 15 as well.

As I conclude this article, the Chief Minister of West Bengal, another Indian state bordering Bangladesh, has given a clarion call to conduct a plebiscite on the Citizenship (Amendment) Act, 2019 under the vigil of the United Nations so as to reach the conclusion whether the people of the country support something like the Amendment Act. While I do not believe how valid is the demand for conducting a plebiscite will be, given that the Indian Constitution contains a well-defined and structured procedure for creation of a legislation, however, the repercussions of categorically exiling a community into invalidity will not be feeble, to begin with.

Erosion of the Right to Freedom in Kashmir: How India Violated Established Principles of Constitutional and International Law

Guest Contributor Bhaskar Kumar is a 3rd year student at National Law School of India University, Bangalore. His areas of interest include criminal justice, human rights, constitutionalism and international law. He writes for a number of platforms including law review blogs and media platforms like The Hindu, Live law JILS-NUJS etc.

In anticipation of unrest after altering the special constitutional status of the state of Jammu and Kashmir, the Indian government detained several political leaders and imposed a broad restriction on freedom of movement and press in August 2019.  

These restrictions were imposed in the aftermath of abolishing article 370 of Indian Constitution. This article was part of the Constitution of India which provided special status to the state of Jammu and Kashmir. By virtue of this article, the people of Jammu and Kashmir used to enjoy some privileges including exclusive property rights. 

The government justified this amendment by considering it a step that ensures the complete integration of the state into the Union of India and to have better control over the territory in order to curb terrorist activities allegedly taking place there.

By imposing section 144 of Criminal Procedure code (1973), the government banned public meetings and shut down the internet and phone services completely which consequently disrupted news and information services. With this step, the government of India has violated the right of freedom guaranteed under article 19 of Indian constitution which protects citizens’ right to freedom of movement, assemble peacefully without arms and press until and unless security of state, sovereignty or interests of the general public is at stake. When such concerns are at stake the government might impose reasonable restrictions over enjoyment of these rights.

In the present case, however, the measures taken by the government of India cannot be said to put reasonable restrictions on the enjoyment of these rights in light of numerous judgments delivered by the apex court. In Indian Express Newspapers v Union of India(1985) 1 SCC 641, the Supreme Court held that freedom of press is crucial to communicate facts and opinions which educate people about political establishments and hence, there cannot be any interference with that freedom in the name of public interest. In the present scenario, due to imposition of restrictions, newspapers are not able to operate or circulate their services. This amounts to an infringement of the right to freedom of expression.

While stressing the importance of the freedom of the press, the Apex court in Dinesh Trivedi v Union of India held that citizens have the right to know about government decisions and actions. But citizens can only know government’s decisions and restrictions when they have access to media sources. In Sakal papers pvt. ltd. v Union of India the Supreme Court observed that the right to freedom of speech entails the right to circulate one’s views to all whom one can reach and care to reach and courts must be vigilant of any kind of restriction over such circulation of views in order to preserve the democratic ethos. 

Due to the imposition of a curfew in Kashmir and the presence of a large number of military personnel, it is impossible for a journalist to cover the news about the prevailing conditions due to imposition of section 144 CrPC. According to its managing editor, the Kashmir Times, a leading newspaper of state, has only been able to publish a minute version of its editions because of restrictions. The imposition of section 144 has made it almost impossible for journalists to carry on their duties.


In Babulal Parate v. State of Maharashtra the apex court ruled that section 144 of CrPC can only be imposed when there is an actual prominent threat endangering public order and tranquility which has not been ensured by government before imposing the curfew. The Internet has also been shut down and the circulation of information has been impossible because of this. The Government of India has ruthlessly interfered with the freedom of press and information. The mandate of article 19 doesn’t give the unbridled power to governments to impose restriction merely on the grounds of speculation and anticipation. The reasonable restrictions on fundamental rights cannot be of such disproportionate nature that they extinguish the right itself. The Indian government has failed to justify the nexus between potential terrorist threats and internet and media shut down for an unreasonably long period of time, as there is no indication of any kind of threat to public tranquility in the  present case.

Looking at the situation from the perspective of international humanitarian law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) ,which has been signed and ratified by India, requires that the government protect the right to freedom of expression and Information. According to a resolution passed in 2012, the UNHRC affirmed that right to information applied online as well. Article 19(2) of the ICCPR mandates that everyone “shall  have right to freedom of expression and this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice”. As per article 19(3) of ICCPR, the right to freedom of expression and information can only be restricted on the conditions that they are done so by law and are necessary for respecting the rights of others and to protect the national security or public order.

In the present case, the aspect of necessity has severely been overlooked. As discussed earlier, there was no substance to show that there was in fact a threat to national security and public order. The respect of modern communication channels–particularly the internet–is very important for a democratic country. As an interactive medium, the Internet opens up new possibilities for communication and is accordingly relevant for the theory of democracy. It ensures participation by forming audiences and opposing audiences and enhances the possibilities for political information, deliberation and participation. No other medium facilitates the communication between state and citizen to the extent that the internet does.  Research on the importance of the internet for civil society groups shows that net-based communication is  key for the organization of transnational protests and solidarity in particular. Even though some studies have pointed out that online content is relatively conventional and little use is being made of the interactive potential inherent to the technology, this form of communication remains. In Ahmed Yildirim v. Turkey the European Court of Human Rights held that the access to media platforms is an indispensable tool for exercising the right to freedom.

The recent steps taken by Indian government in Kashmir constitute serious violations of principles enshrined in the constitution of India and international covenants signed and ratified by India. However, the government has not responded to the questions raised by media and civil society in this regard. Last month a delegation from European Union visited Srinagar, (the capital of Jammu and Kashmir) to have a first-hand understanding of situation. The visit was diplomatically important as the government’s move was criticized internationally by lawmakers. However, the visit was unofficial and there was no intention on the part of delegates to submit the report to European Union.

The Indian government should not have unbridled power to curtail the fundamental rights of its citizens. Constraints imposed on media and the internet must therefore be removed as soon as possible and citizens should continue to enjoy their freedom of speech.

The Ayodhya Ruling and the Rule of Law

Guest Contributors Prannv Dhawan and Parth Maniktalaare are law students at NLSIU Bengaluru and Campus Law Centre, Delhi respectively. Prannv is the founding editor of the Law School Policy Review and Parth is an editor of the online journal, Polemics and Pedantics.

A five-judge bench of the Supreme Court in India has unanimously held that the possession of the most-contested piece of land in Indian political history—the 2.77 acres where the Babri Masjid Mosque once stood—should in fact be exclusively given to the Hindu claimants of the case. At the same time, the Court invoked its special power to do ‘complete justice’ under Article 142 to restitute the damage caused by ‘egregiously illegal’ idol installation (1949) and Masjid demolition (1992). Hence, it ordered the government to allot an alternate plot of 5 acres to the Sunni Muslim Waqf Board at a ‘prominent place’ in Ayodhya for the construction of a new mosque. 

A few words have become an indispensable part of the vocabulary describing this judgment. Politicians and legal commentators alike are calling it a “win-win situation,” BJP spokesperson Nalin Kohli calls it an “inclusive judgment,” and Prime Minister Modi calls it “a golden chapter in the history of the Indian judiciary.” On the other hand, even as the judicial outcome has come to represent a vindication of the ideological Hindutva, many have stated that the Hindu majoritarian context and atmosphere has cast its shadow on the Court’s narrow and technical reasoning to hold that on the balance of probabilities, Hindu parties have a better claim to adverse possession of the site. Be that as it may, across the board there seems to be a concealed satisfaction, as if by upholding the claims of the Hindu-majority, the court has averted a crisis. However, the finer aspects of the rule of law seem to have been compromised or diluted in order to satiate the faith and belief of a community. 

Rule of law requires that people be governed in a manner that is equal, just, and non-arbitrary. Considering the highly religious nature of the property dispute, the court corrected emphasized the importance of equality amongst religions. It cites  SR Bommai v UOI to emphasize that secularism and fraternity are basic features of the Indian Constitution (see paragraphs 82 and 83). The Court goes on to strongly affirm both the constitutional value and significance of the Places of Worship Act, 1991. The Act, legislated in the context of deep communal divisions in the country by a legislature concerned about national integrity, provides for criminal punishment for converting the places of worship of any religious denomination. The court emphasizes the principle of non-retrogression of pre-constitution era disputes to further the legislative intent behind the Act, states: “The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.” Hence, the Court raises this statute to the pedestal of a constitutional statute whose importance has been highlighted by various secular and progressive activists considering the likelihood of similar communal disputes being raised in other places of worship in Mathura and Varanasi. This is an important signaling from the Court that any derogation from judicious application of the Act would certainly violate the Court’s reasoning.

The court remarks in the Ayodhya Judgment: “[land] title cannot be established on the basis of faith and belief alone (para 788).” And yet, the court proceeds to say “Once the witnesses have been deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief”; “Whether a belief is justified lies beyond the ken of judicial inquiry (para 555).” Analyzing this language,  Professor of law, Faizan Mustafa notes, “The court while pronouncing the judgment did try its best to strike a balance between law and faith. But clearly faith has the last laugh here.”

While it is undisputed that a significant section of the Hindu population believes Ayodhya to be the birthplace of the Hindu deity Lord Rama, it is unclear whether such belief can be grounds for legal adjudication in what is essentially a title dispute. Furthermore, such deference to religious beliefs also stands in opposition to the Supreme Court’s ruling in the  Indian Young Lawyers Association vs. State of Kerala) case, wherein the court explicitly favoured constitutional morality over any personal/religious beliefs. “In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail.” (para 189). It remains to be seen what the Ayodhya ruling’s jurisprudence bears for the review petition in the Sabarimala case, in which an order is expected next week.  

Another instance of the court deferring in favour of the beliefs of Hindu devotees in the judgment is where it disregards the longstanding bifurcation of the disputed site between an inner and outer courtyard. The ruling states, “Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the “Garbh-Grih” being the birth-place of Lord Ram (para 773).” 

The court uses this logic to treat the entire disputed land as one unified territory—which it then proceeds to grant to the Hindu claimants. Again, this is a problematic deference to the belief of one community in disregard of the factual matrix (wherein Hindu devotees had initially only staked claims to the Ram chabutra, located in the outer courtyard). The suit that Mahant Raghubar Das had filed on January 19, 1885, sought permission to build a temple on the chabutra. The District Judge, in his judgment dated March 26, 1886, said: “This chabutra is said to indicate the birthplace of Ramchander.”

The consequences that follow from the court ignoring such distinction between inner and outer courtyards (and treating them as a composite whole) are of paramount importance. The court made two important conclusions that underpin its final orders: 

 

  1. “The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship.”

 

  1. “The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims.” (para 788, clause XVIII)

 

Therefore, as opposed to granting the Hindu representatives possession to the outer-courtyard, and then proceeding with a balancing act with respect to the possessory title for the inner courtyard, the court eventually concluded that “on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims… (para 800).” Hence, the court ordered that the “possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted.” The trustees, including the parties representing Lord Rama, shall have the powers for the construction of a temple and all necessary incidental and supplemental matters. 

It is also important to note that in reaching the conclusion that Muslims were not in exclusive possession of the inner courtyard, the court heavily relies on evidence of attempts by Hindus to disrupt the possession of the Muslims: “Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard (para 788, clause VII).”

In his essay ‘A Historical Overview’ published in the book ‘Anatomy of a Confrontation’ (1992), K.N. Panikkar records one such assertion by Hindus, “On 30th November 1858, Maulvi Muhammad Asghar, khatib and muezzin of the Babri Masjid, submitted a petition to the magistrate complaining that the Bairagis had built a chabutra close to the mosque and that they had written ‘Rama, Rama’ on the walls of the mosque.”

In a far more problematic way, the court uses the illegal acts of violence on part of Hindus to justify its conclusions about Muslims lacking exclusive possession: “The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard (para 781).” 

It seems manifestly unfair for the court to allow the Hindu claimants to benefit from brazenly unruly acts which sought to interfere with the possession of the Muslims. In retrospect, Muslims amicably respecting the rights of Hindus to worship in Ram chabutra and Sita ki rasoi has in fact turned out to be counterproductive. Perhaps had they too sought to violently disrupt the religious proceedings of Hindus, the court would’ve applied the same “conflicting claims” yardstick to the outer courtyard too—and found against the exclusive possession of the Hindus. 

Nevertheless, it is important to not lose sight of a greater crisis that has been averted in Indian jurisprudence. In a context where large scale mass-mobilization for temple construction was threatened and it was declared that Ram Mandir was an issue of faith and the Supreme Court must not delay its adjudication, the Court has successfully engendered unanimous support for legal process. The court takes due notice of the unruly demolition of the Babri Masjid. “The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law (para 788, clause XVIII).”  And yet the court refrains from restituting the Muslim community by restoring the mosque. The judgment seeks to establish a judicial precedent wherein minorities are simply compensated for violations of rule of law, as opposed to restituting them to their original positions with due respect for their rights and dignity. It is also worrisome because the same perpetrators continue to enjoy to impunity and gave self-congratulatory statements on the verdict.  AG Noorani’s critique of the Allahabad High Court’s judgement is equally applicable to that of the Supreme Court: “The Allahabad High Court had, in effect, sanctified the criminal conversion of the historic Babri Masjid, built in 1528, into a Hindu temple in 1949.”

The political ramifications of this judgment will not be immediately discernible. As far back as 2001, historian Mukul Kesavan had written in his book Secular Common Sense, “The construction of the Ram Mandir where the Sangh Parivar wants it built won’t lead to apocalypse. The world will look the same the morning after, but the common sense of the Republic will have shifted. It will begin to seem reasonable to us and our children that those counted in the majority have a right to have their sensibilities respected, to have their beliefs deferred to by others. Invisibly we shall have become some other country.”

The Supreme Court has averted an immediate crisis, insofar as there has been no outbreak of violence, nor any reports of bloodshed in the aftermath of the verdict. But perhaps the greater crisis that the court has involuntarily invited is that of minorities losing their faith in the institution of the judiciary. In an environment where the legislature and executive are turning unashamedly majoritarian, vulnerable minorities have nowhere to go than repose their faith in the courts. Even as the parties representing the Muslims have decided to file a review of this judgement to contest its conceptual flaws and inconsistencies, one can only hope the judiciary would give them a fair hearing and foster institutional faith in the efficacy of justice delivery. Moreover, as argued elsewhere the court should seriously consider passing directions to ensure an expeditious day to day trial in the languishing Babri Masjid demolition cases. This could be a concrete first step in the long way for the legal system to bridge the scales of justice.

The Kashmir Issue: How “Miller (2)” Must Inspire the Indian Supreme Court

By guest contributors Anmol Jain and Prannv Dhawan. Jain is  a penultimate-year law student at National Law University, Jodhpur, India. He takes an active interest in the study of constitutional law and judicial approaches to human rights. Dhawan is a third-year law student at National Law School of India University, Bangalore, India. He is interested in policy and legal research in the domains of public law, human rights and climate justice. 

India’s constitutional democracy is backsliding. Speaking at a rally during the ‘National Register of Citizens (NRC) Seminar’ recently, the Home Minister advocated for the re-introduction of the much contentious Citizenship Amendment Bill, which unconstitutionally aims to provide easier citizenship requirements for non-Muslim refugees. Noted scholars have argued that previously, the National Register of Citizens exercised in Assam and now, the dilution of Article 370 of the Constitution that provides special status to the state of Jammu and Kashmir, are arguably unconstitutional attempts to further the political vendetta of the ruling party which has the capability to downgrade the credentials of Indian federal and democratic ideals. Amid global critique of the functioning of the executive branch in India, the latest coming from the Bar Council and Bar Human Rights Committee of England and Wales, United Nations and the United States Senate Committee on Foreign Relations, the attitude of the Supreme Court towards the Executive excesses has also come under the radar (see here, here, here and here). We attempt to analyse it hereunder by specifically focusing on the Jammu and Kashmir issue pertaining to dilution of Article 370.  

To briefly comment on this provision, Article 370 prescribed a special status to the state of Jammu and Kashmir by limiting direct application of the Indian Constitution to the State. Provisions of the Indian Constitution could be applied only through Presidential Orders issued upon the concurrence of the State Government. It further provided that the President may cease or modify the operation of Article 370 after taking recommendations from the Constituent Assembly of the State. On August 5, 2019 a Presidential Order was passed which inserted an additional clause in Article 367, a provision that guides the interpretation of the Constitution, to indirectly amend Article 370. It stated that the expression ‘Constituent Assembly of the State’ used in Article 370, must be read as ‘Legislative Assembly of the State’. Given the fact that the state was functioning under President’s rule through the Centre-appointed Governor at the relevant time, indicating the absence of a legislative body, it became a butterwalk for the Central Government then to modify Article 370 to such an extent that it virtually dilutes it. 

Many petitions have been filed in the Supreme Court challenging this dilution. This issue involves the determination of limits on the Executive functions in India, which is presently functioning in an ultra-strong manner with a combined strength of the whip. It involves the question of constitutional federalism and the survival of India’s democracy as envisaged by our founding fathers. Understandably, nothing could be more important in the existing backlog of the Supreme Court than securing the identity of our Constitution, which promises to India citizens and the state governments a Government limited by the Rule of Law and ideals of federalism, respectively. However, while hearing the matter on September 30th, the Supreme Court hearing was delayed, with representatives noting: ‘We do not have time to hear so many matters. We have a Constitution bench case (Ayodhya dispute) to hear.’ 

The issue of backlog in the Supreme Court of India isn’t new – it has been continuing for many years (for a more detailed discussion, see here). Given that the Court today is suffering from a high backlog of cases, an agenda of judicial reforms, as Justice Chandrachud recently articulated, must include the proposal to reduce the high number of appeals of civil or criminal suits and to streamline special leave jurisdiction. Another option for reducing the caseload burden could also be, as is continuously being emphasized by the Vice President, the establishment of multiple benches of the Supreme Court in different regions in India. However, despite the way in which this manifests, under no circumstances can the Supreme Court continue to be excused from efficaciously fulfilling its constitutional responsibility to hear all cases that come before it.

When the Kashmir petitions were placed before a Constitution bench on October 1, the Court again failed to adequately fulfil its role as the protector of liberty by further delaying the hearing. In addition to this, if the bizarre habeas corpus orders, as critically analyzed elsewhere, in September is anything to go by, the Supreme Court has uncritically accepted the Government’s disproportionate claims about national security that seem to have taken precedence over the ideals of civil liberties. The idea of a nation represented by a focus point – dilution of Article 370 to achieve greater unity, as claimed by the Central Government – has overpowered the individual dignity and identity of its constituents, which marks a move from a democratic government set-up towards right-wing populism. Such judicial evasion in the guise of national security in these crucial cases of rights abuses has been criticized by constitutional commentators by juxtaposing it with the United Kingdom Supreme Court’s swift adjudication in R (on the application of Miller) v. The Prime Minister [“Miller (2)”], a case involving breach of constitutional procedures and principles in the prorogation of the Parliament.

The Indian Supreme Court’s core constitutional role is to protect the fundamental rights of  citizens. The efficacious hearing and adjudication of the petitions against civil rights restrictions, house arrests, and communications blackouts as well as the constitutionality of the Parliament’s legislation are critical in the current times of constitutional backsliding. Rights’ adjudication ought to be placed on  a higher pedestal than smaller, less crucial issues such as a recent case the Court chose to hear: the determination of legal title in a religiously charged land dispute matter. This is especially relevant at a stage in the Indian constitutional process where safeguarding the rights to dignity and life has been understood to be at the pinnacle of public duties. As has been enunciated in multiple golden triangle cases, these rights are interpreted broadly and for the betterment of Indian citizens. Further, just recently, the Kerala High Court held that even the access to internet is a fundamental right to be protected. 

Although the Supreme Court’s wide jurisdiction and liberal interpretation of its powers creates significant  institutional constraints, this cannot be an alibi for not fulfilling the fundamental constitutional role of the court. If the Court is indeed the most powerful apex judicial body in the world, then it must tirelessly commit itself to secure the civil-political-socio-economic rights in a timely fashion. While the stellar institutional contributions of the Supreme Court to the cause of human rights and citizen’s entitlements cannot be denied, we contend that it is this very expansion of its constitutional role (perhaps self-assumed), that obligates the Court to seriously and appropriately adjudicate on constitutional challenges and petitions that seek its rescue to restore fundamental rights. It is important to acknowledge that delay in justice delivery is an absolute denial of those exact rights. The court’s present cavalier approach to collective punishment of millions of citizens without judicious and comprehensive ascertainment of existence of reasonable grounds based on the doctrine of proportionality is unfortunate and needs to be critiqued, rather than defended. Otherwise, it shall surely create an ironical situation where the ‘most powerful court’ is continuously failing to fulfil its constitutional duties, perhaps under executive influence. 

Earlier this year, the UK Supreme Court upheld the ideals of parliamentary deliberation and accountability of the executive to the Parliament by declaring Boris Johnson’s 5-week prorogation of parliament null. This is similar to the current Indian situation. It would not be wrong to argue that diluting Article 370 at a time when the State of Jammu and Kashmir is functioning under the President’s rule and substituting the views of the Governor with the views of the State Assembly is equally ‘unlawful and thus null and of no effect.’ Any further delay in action by the Supreme Court comes with a high possibility of material alteration in the functioning of Jammu and Kashmir under the amended scheme of the Constitution, the reversal of which, if the Court decides so, might bear heavy costs.  

Demonstration of the Court’s independent strength is not only lacking in the realm of highly staked political matters, but it also extends to judicial appointments as well, as witnessed in the recent controversies involving Justice Akil Kureshi and Justice Tahilramani. Commenting on the manner in which the Supreme Court has handled the petitions arising out of the recent controversy involving Article 370 of the Constitution, the state of Jammu and Kashmir and its special status, constitutional commentator Gautam Bhatia has argued that an emergency-era weak judiciary has reappeared, though in a different form this time, which has failed the fundamental principles of Indian constitutional democracy. 

In a recent judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court highlighted the virtues of judicial independence and held that it is a part of the basic structure of the Indian Constitution,  again highlighted at another time soon after. Concerns regarding isolating the judicial body from the other organs of the Government have been institutionally studied by the International Commission of Jurists and under multiple international documents. However, the Supreme Court of India seems to have taken a blind eye towards itself even while it advocates internationally for  recognized jurisprudence of courts elsewhere.  

In the times when the Executive’s imposition of an information blackout and civil rights restrictions in Kashmir have continued for over 60 days and  blatantly unconstitutional legislations like the Citizenship (Amendment) Bill are sought to be passed,  the judiciary must rise to the desired standards and stand as an independent protector of the Constitution. We believe that the wide jurisdiction and the high number of cases that the Court handles weakens it. It is not impossible to achieve more balance; it has been done in the past. Justice H.R. Khanna, for example, is a judge who stood undaunted and ruled against executive excesses to uphold constitutional promise in their cases. The time has come that the present Court proves it is indeed the Constitution’s sentinel on the qui vive.