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FROM THE DIRECTOR'S DESK
SEEMA MUSTAFA | NEW DELHI | 22 June, 2017

Army Chief's Comments on Kashmir Indicate A Decisive Shift in Military Strategy

NEW DELHI:The Indian Army Chief General Bipin Rawat has, in his recent comments to Press Trust of India, spelt out the strategy for Kashmir clearing all doubts, if there were any.

It marks a decisive pull back from the ‘healing touch’ introduced by his predecessors and Army Corps commanders like Lt General Ata Hasnain insofar as the functioning of the Army in the sensitive border state was concerned. And takes away completely from the effort of former Prime Minister Atal Bihari Vajpayee to resolve the issue of security and alienation through an internal dialogue mechanism between New Delhi and all stakeholders in Srinagar.

The first response to the cynical use of a Kashmiri Farooq Ahmad Dar as a ‘human shield’ by a Major from the Army itself was one of regret, reflected in the almost immediate decision to order a probe into the incident. This shifted almost overnight, at the instance of the government, to a justification of the act and an award given to the Major for resorting to what most armies in the world would see as an inhuman act. As did several retired officers who wrote of this at the time. And now General Rawat has taken this 3 distinct steps further with his recent remarks.

The most revealing comment by the Army chief was, "In fact, I wish these people, instead of throwing stones at us, were firing weapons at us. Then I would have been happy. Then I could do what I (want to do)," in an indication that he wished the Kashmiris were using weapons. This in itself denotes a major shift in policy, as with these deliberate comments General Rawat makes it clear that in his view Kashmiris with weapons will be easier to handle as then he “could do what I want to do.”

The effort till date has always been by both the political and the military establishment to prevent this from taking place, and somehow ensure that the rebellion within the Valley does not turn into an armed response. General Rawat earns the distinction thus, of being the first Army chief to state this ‘desire’ that will open all roads to a direct armed confrontation between the military and the citizens, a possibility that constitutes a nightmare for most governments.

This statement from the Army chief that has shocked several of his retired colleagues, is reflective of an aggression that the military nurtures for an “enemy”nation, but certainly not for those who are seen as Indian citizens and an ‘integral part of India’.

As further edification the General said, “This is a proxy war and proxy war is a dirty war. It is played in a dirty way. The rules of engagements are there when the adversary comes face-to-face and fights with you. It is a dirty war.... That is where innovation comes in. You fight a dirty war with innovations.” Innovation of course being a positive word for dirty tactics, that go against the grain of military and civil ethics when dealing with citizens from one’s own country. General Rawat thus voiced what is a political argument that insists that the war is being fought by Pakistan, even though fact finding teams of eminent Indian citizens have pointed out repeatedly that the masses are now active part of the protest, and the alienation has spread through the political mishandling of the Valley. The same has been stated by the so called mainstream elected representatives repeatedly but as a senior legislator said, “no one is listening to us.”

And again, "People are throwing stones at us, people are throwing petrol bombs at us. If my men ask me what do we do, should I say, just wait and die? I will come with a nice coffin with a national flag and I will send your bodies home with honour. Is it what I am supposed to tell them as chief? I have to maintain the morale of my troops who are operating there.” The Army is called in to handle situations of such violence, otherwise there would be no need for military presence in a state that is considered part of India. And is called in when the violence reaches levels that the police cannot control. This is a given. And while the Indian Army is expected to follow political directives as it must, it needs to differentiate between the people of India and enemy nations when it prepares its response and its strategy, as do all armies of democracies in the world.

A third comment that was indicative of the new declared policy is that probes are not really of any consequence. As General Rawat has overturned the enquiry with the award and these subsequent remarks to the media. And virtually confirmed the Kashmiri belief that such courts of inquiry are not neutral when he said that as the agency put it, a general idea about what is going on in the Court of Inquiry and that is why he went ahead with awarding the Major. "I know what is happening in the COI. It is being finalised. What do we punish him for," the Army chief said. The Major claimed that Dar was perceived by him as a ringleader and hence the action, Dar had said he was a voter and had nothing to do with the ongoing agitation but was caught between.

Stone pelting seems to be frustrating plans for an all out offensive against the people, as it will be seen as an unacceptable over reaction to the young people, including schoolgirls shouting slogans and throwing stones. The Army chief’s trigger happy comments thus, come as a surprise as the effort even in the worst of times in Kashmir has always been to quell the violence somehow, and prevent the youth from picking up arms.

The Indian Army has a major input into strategy for Kashmir, being a virtual stakeholder in the border areas. Successive governments have acted according to military advice insofar as Kashmir is concerned with now retired Army Corps commanders having made the following points to this reporter earlier:

1. It is imperative for the political parties to move into the areas we ‘sanitise’ and often the delay proves to be very costly. We do not want to stay on in civilian areas when peace is restored, as this brings us into direct conflict with the civilian population that leads to violations at different levels;

2. The worst possible thing that can happen is if the Kashmiris pick up arms. It is a nightmare, even more for us in the Army than for the political rulers;

3. It is important for the governments to diffuse unrest and anger politically as well through talks and dialogue; the Army cannot be a permanent solution.

OPINION
WAJAHAT HABIBULLAH | 22 June, 2017

The Taj That is India

On a recent visit to Darbhanga the Hon’ble Chief Minister of India’s largest state and considered by many-and certainly by its own prodigious population-to be the crucible of India’s culture, has declared that the Taj Mahal had no connection with Bharat’s culture. Yet as we celebrate the 70th year of our freedom accompanied as it tragically was by the most bloody partition in all human history, we would do well to remember what today’s Bharat is.

India represents an unprecedented experiment in nation building after centuries of being part of empires that have laid the foundations of its economic, social and geographic boundaries. This experiment is unprecedented because it differs radically from the idea of the nation state stemming from the European experience which based national boundaries on the strength of ethnic, linguistic and religious commonalities.

The concept of ‘nation’ was no doubt disseminated across the world in an age of colonialism, when subject people looked with envy upon the European concept that had fuelled such domination. And so small states, emerging from colonial rule, often ethnically diverse, with these diversities sometimes hostile, were sought to be molded into nation states, with, as we can now see, lasting resentments or, in breaking the yoke of colonial power, seeking themselves to build nations.

Yet South Asia with its sustained engagement with the world has built a unique identity both for itself and for India’s Islam which carries significance for a world moving into an era of globalization. In this region, an unhappy consequence of colonial rule was the birth of Pakistan, seeking to build a nation on grounds of religion.

Malaysia sought to build a secular State, with a bias towards the ‘bhoomiputra’ (indigenous Malays, overwhelmingly Muslim) in a nation with two dominant ethnic communities. The Philippines and Indonesia, ethnically more homogeneous but with differences in religion have also sought, with varying degrees of success, to build their nations by recourse alternating between democratic and dictatorial means.

India on the other hand, has been a cultural and economic multi-ethnic entity for centuries, in a convergence of which the Taj Mahal can be described as apotheosis. A mausoleum is a concept not in keeping with orthodox Islam. Witness today the chagrin of much of the world’s Muslim community at the demolition of centuries old mausoleums by the Wahabi government of Saudi Arabia. The Islamic concept of burial is similar to the rite of cremation, simply a return of human remains to nature.

The Taj was indeed built by a Muslim Emperor, but Shah Jehan was son of Jagat Gosain, Rathore princess of Marwar, with a paternal grandmother who was from the Kuchwaha house of Jaipur, married to the Mughal Emperor Akbar with the title of Mariam Zamani. And the Rajput influences in the design and ornamentation of the Taj will be obvious to any amateur observer of the traditional architecture of the great cities of Rajasthan, leading some to claim that the Taj is in itself a Rajput palace. If it requires to be labeled then of course the Taj Mahal, given the ancestry described, so is.

To add to this diversity is the fact that this was a monument built to celebrate the Sunni Emperor’s Shia Empress. And if the building of mausoleums to Emperors is frowned upon by Muslim orthodoxy, a mausoleum for queens is almost unique to India. Here you have the tomb of Noor Jehan in Lahore, the Bibi ka Maqbara in Aurangabad built by then prince Mohammed Muazzam for his mother Dilras Bano Begum and a mausoleum to Qudsia Begum, wife of Mohammed Shah in Delhi’s present day Jor Bagh.

There is also in Delhi the tomb of the great Hindi poet Abdul Rahim Khan Khanan, which is in fact a tomb built by him for his wife Mah Banu, wherein he was interred, located in the present Nizamuddin neighborhood.

But without doubt the most magnificent of these tombs in India or anywhere is the Taj Mahal built as a temple to the Empress Mumtaz Mahal using the tradition of India’s temple architecture. Hence it is located on an elevated plinth as are the temples of Khajuraho, and is built of marble from the Sind-Rajasthan region, decorated with semi-precious stones from the farthest reaches of a vast Empire, already embracing the area of the Solasa Mahajanapad, the sixteen great states extending from the Kabul Valley in the north to the Godavari in the South that constituted Bharat in the 6th century BC, yet to reach its zenith. These were patterned into mosaic on its walls and ceiling and sculpted into its façade by artisans drawn from India’s rich crafts tradition in gems, stonework and sculpture, silver and gold smithy, mostly Hindu, bordered by Islamic calligraphy of majestic proportion, all coalescing into what is the highest achievement of Indian artistry.

The dome, an architectural innovation initiated by the Pantheon of ancient Rome, and a contribution of the Turks to India’s architectural array, is crowned with a gold plated finial; rising from an inverted lotus-the lotus is the party symbol of the Hon’ble CM’s own party-on its summit, surmounted by an Islamic crescent topping a pinnacle reminiscent of the Hindu Shiva trident kalash.

This is surely among the world’s most perfect domes. British Viceroys anxious to establish British superiority over the Indians vanquished by the defeat in the war of 1857 conceived the Victoria Memorial of Kolkata, in 1905; although modeled on the Taj it is today not even talked of as a comparison. And so, just as every class of Indian society was over the centuries assigned a place in its professional economic hierarchy, which was both a social security and a guarantee of continuity, each class, the ruler, the priest, the skilled, the artisan, the laborer finds expression in the Taj, a supreme expression of India’s architectural achievement, described movingly by India’s poet laureate Rabindranath Tagore and composer of our national anthem as ‘a teardrop on the cheek of time.’

But where did this convergence start and where did it break? Why indeed did a separate state of Pakistan based on what were perceived as exclusive national rights of a vital element of Indian society emerge as detritus of the British Indian Empire?

In framing its Constitution, India, describing itself as a ‘Union of States’ gave to itself a Federal Constitution with a strong unitary bias. Emerging from a bloody Partition amidst doubts, most famously voiced by former British Prime Minister Sir Winston Churchill that India was even a nation, India sought to weave itself together, while acknowledging diversities, particularly of religion, education, culture and language, into a cultural fabric with political autonomy to ethnic diversities. The Taj Mahal is an expression of that tapestry, which is India.

(Wajahat Habibullah was the chairperson of the National Commission for Minorities. Prior to this, he held the position of the first Chief Information Commissioner of India as part of a long innings in government).

ARTICLE
CHIRAG BALYAN&LALIT KUMAR DEB | 26 April, 2017

River in a ‘Court of Law’ – Legal issues pertaining to its personality

I. Introduction

Humans, in the early stages of existence on this planet, lived incredible in harmony with nature. Ancient civilizations and cultures treated rivers as being alive or as Gods. Heraclitus, a Greek philosopher used the river in an allegory to say that nothing in the material cosmos is static, and everything keeps on changing. His words are: “No man ever steps in the same river twice, for its not the same river and he is not the same man”. Worship of rivers can also be linked to Pantheism, which views everything in existence as God. Thomas Hobbes, in his most famous work, Leviathan, opens with the word “Nature” and then parenthetically defines it as “the art whereby God hath made and governs the world”.

For Hindus, the Ganga is the most sacred river and is also the lifeline for millions of Indians living along its course and depending on it for their sustenance. It has kindled man’s thought and imagination for centuries.PanditJawaharla Nehru, stressing on the importance of the river said: “The Ganga, especially, is the river of India, beloved of her people, round which are intertwined her memories, her hopes and fears, her songs of triumph, her victories and her defeats. She has been a symbol of India's age-long culture and civilization, ever changing, ever flowing, and yet ever the same Ganga.”

Over time, with the population growth and the advancement of science and technology, theman-nature relationship has been one of overuse, misuse and imbalance leading to environmental degradation. The philosopher Jean Jacques Rousseau, in the eighteenth century, accepting that nature is the ideal and source of morals, enlightenment and the pursuit of happiness gave the clarion call “Back to Nature.” His aim was to correct urban society’s alienation from nature.

The disharmony of the existential relationship between men and nature has also been felt in India. The holy river Ganga has come to beconsidered to be one of the most polluted rivers needing state intervention. The Government of India in July 2014 announced an Integrated Ganga Development Project titled ‘Namami Ganga’ and allocated 2,037 for the project.

In New Zealand, in a first in the world, river Whanganui (also named as Te Awa Tupua) has been accorded legal personality and has been conferred same rights as that of human beings. However, this was done by enacting a Bill by the Parliament and not by judicial legislation. ‘Rights of Nature’ are specifically provided in the Ecuador Constitution. In local parlance, the river used to be think as having spiritual connection with the Maori Tribe ‘iwi’. They describe it as, “I am the river and the river is me.”

Recently, in case of Mohd. Salim v. State of Uttarakhand&Ors. [Judgment dated 20.03.2017 in W.P. (PIL) No. 126 of 2014] – Alok Singh &Rajiv Sharma JJ., in an unprecedented judgment declared the river Ganga, Yamuna and all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers to be living entity. Court bestowed upon them all the fundamental rights available to a person under the Indian Constitution by equating them to ‘legal person’ or ‘juristic person’. The said rivers, it has been held by Court, are capable of enjoying all the rights, duties and liabilities of a living person. Court reasoned that these rivers provide ‘physical and spiritual sustenance’ to half the Indian population. Therefore, to protect the recognition and faith of the society such extraordinary measure was deemed expedient.

Court adopting the principle of Parenspatriaedeclared Director of NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand as loco parentis.

II. Jurisprudential analysis of concept of ‘person’

Legal person refers to a non-human entity that is treated as a person for limited legal purposes, for example, corporations. Courts have also held deities and idols to be legal persons. Legal persons can sue and be sued, own property, and enter into contracts. Of late jurisprudence hasalso developed that legal person like corporations may also commit a crime. There are two facets of being a legal person,first, capability to possess certain rights and second, of having obligations.

Wesley Newcomb Hohfeld in his analysis of jural relations said that jural correlative of right is duty. Every right, therefore, involves a relationship between two or more legal persons, and only legal persons can be bound by duties or be the holders of legal rights. Rights and duties are correlative.We cannot have a right without a corresponding duty or a duty without a corresponding right.To say that X has a legal claim-right means that he is legally protected from interference by Y or against Y's withholding of assistance with respect to X's project Z. Conversely, Y, who is to abstain from interference, or is required to provide assistance in connection with X’s project Z, is under a correlative duty to do so. The correlativity stipulation commands that if X has a claim-right against Y, this entails Y owing a duty to X.

Analysing from Hohfeldian perspective, if river Ganga is legal person capable of possessing ‘legal right’ then it shall have certain ‘duties’ (fact also recognised by the high Court). It means for breach of ‘legal duty’ river Ganga or Yamuna can also be sued. This makes us ponder that, what ‘legal duty’ can we attribute to river? Will this ‘legal duty’ of river be same as that of other ‘legal persons’.

III. Legal implications of declaring river as person

In an article published in the Hindu (Shibani Ghosh, The river as being), author has emphasised on the ‘rights of river’ by raising questions like, “In the eyes of the law, living persons... the rivers can sue persons acting against their interests… If yes, who will sue whom? … Do other riparian State governments now have less of a role in the protection of the rivers as they are not the identified ‘custodians’?...” However, the question of ‘duties of river’ have been left open ended. If we encumber river with duties then the necessary legal implications would be as follows:

1. Whether, Ganga or its tributaries has a duty to provide us water and whether can they be sued for non-supply of water Example – 1. If a farmer has adjoining agricultural fields to river or its tributaries, can farmer sue the river ganga, if the water is not available for his fields because of drought situation or for some other circumstance and consequently farmer suffers loss of crops.Example – 2 There is a village which is relying on the water from one of the tributaries of ganga and in a particular season due to climate change or change in direction, the water in the tributary has dried up.In any case the consequence is that the village have to be without water.Few people died thirsty due to non-availability of water. Whether, in such situation can a tortuous or criminal liability may arise?

2. Act of God is an exception to tortuous liability. In torts, it has been constantly held that liabilityfor destruction of crops due to flood or draught will not arise as it is a case of ‘Act of God’. However, recognising ‘flood’ or ‘draught’ as Act of God and parallely recognising river as a natural person is nothing but, paradox. It seems difficult to reconcile the concept of ‘act of god’ and ‘legal person’.

3. Can river which has been declared as legal person is capable of committing a crime as it has now been recognised that companies can be made criminally liable. For example, due to sudden rise of water, a person who is swimming orsailing in a boat,drowns in the water. Whether, in such case can we held ‘culpability of river’ for homicide of a person or destruction of property?

Though the arguments may sound far-fetched they are not improbable because of the ensuing consequences in declaring the river as legal person. The rights cannot be divorced from duties. Thus, a judgment which intends to protect the sacred rivers may give rise to unanticipated and unwarranted consequences. It is humbly submitted that judgment is jurisprudentially flawed and legally untenable.

IV. Conclusion

Hohfeld’s description of relations between various forms of legal entitlements reflects truths on features of legal rights. Hohfeld argued that the tendency to express all legal interest in terms of “rights” and “duties” resulted in confusion in the analysis of complex legal relations like trust, options, escrows, future interest, and corporate interest etc. in Hohfeld’s ownwords: “One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems, frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties” and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, “future” interests, corporate interests, etc.”

The prime reason for this confusion in his view was the inaccuracy of the terminology. Hohfeldobserved that important legal terms, including “right” and “duty,” had no agreed meaning and thereby caused muddled analysis. He notes that the term right was often used to denote several other distinct legal interests such as powers, privileges or immunities. The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction with the idea that all the Jural relations can be reduced to rights and duties. These concepts are duty, claim, liberty, no claim, power, liability,disability, and immunity.

Therefore, in light of what Hohfield argued we need to invent some other jural relation by which the real intention behind the judgment may be fulfilled. Ganga is considered to be a sacred place where people take a dip to wash their sins. Certainly, we don’t want Ganga to stand in court of law for doing a sin or we don’t want them to be imprisoned or hanged. Ganga and Yamuna are beyond legal personality. In Hindu mythology they are reason for ‘person’ of a being and therefore, can’t be treated as a person. We human race is so cruel that by attributing our holy rivers as ‘person’, we will make them accomplice to our wrongs and crimes.

Other argument against the judgment is that legal person shall be creation of a statute and discretion of legislature. Recently, Justice DY Chandrachud in Union of India v. Rajasthan High Court, (2017) 2 SCC 599, 606 recentlyemphasised on the judicial restraint in unchartered territories in following words:

“The powers under Article 226 are wide—wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision-maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, Judges walk the path on a road well-travelled. When judicial creativity leads Judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of Government.”

Legal person is for a specific purpose, however, the judgment without embarking upon the specific purpose opened up the flood gate for the perpetual legal problems for the river. If required, as the case in New Zealand, this should be done through a parliamentary legislation.

 

 

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