Full credit must be given to BBC for their decision to air Storyville: India’s Daughter last night, ahead of schedule, in response to the lunacy displayed yesterday in India’s Parliament, and by the attempts to ban the screening of the film, not just in India, but absurdly beyond the country’s borders as well. The embarrassing display by India’s politicians, and indeed by a Delhi court which granted the ban within India, represents yet another missed opportunity for India to have a public discussion on equality. Yes, the film made deeply uncomfortable viewing. Yes, there might be questions as to the timing of the airing of the film, given that the appeal process is not yet complete. Yes, there might even be questions about how access to Tihar Jail was achieved. But it is not the BBC, or the director that shames India. It is India’s own inability to host an open discussion about how to achieve the equality granted to her women in the Constitution. As Leila Seth (former Chief Justice and one of the three authors of the Verma report following the horrific rape) eloquently puts it in the documentary, equality “hasn’t happened because the men don’t allow it to happen” and because of the traditions that allow an embedded patriarchy to govern both men and women. Justice and accountability demand that conversation to happen, and it is very long overdue.
Indian MPs, in their childish cries of defamation, fail to realise that this debate is about India, and how India moves forward. None of this is to suggest that rape and misogyny are exclusively Indian traits. Nor is it illegitimate to point out the rates of sexual violence in other countries. Of course, sexism and violence against women remains a global debate. Progress universally needs to take giant strides forward. But this particular debate is about India. This particularly gruesome crime took place in India’s capital city. And if India’s politicians don’t allow that debate to take place within India, therein lies the critical obstacle to progress. There is a “fantastically strong civil society” movement in India that rose up in huge protests after Jyoti Singh’s rape, which the documentary depicts. It equally depicts the ugliness of the police response to those protests. This is a country in transition. This, like the rest of the world, is a gender model in progress. But the debate in India needs to be contextualised within India’s own mores and norms. Some of those mores and norms are so deeply embedded within a tradition of silence, let’s talk sex ratios at birth just to take one example, that it is time to shout loudly.
There has been a lot of debate about whether this film swaggers with a “white saviour” complex. I reserved judgment until I had seen it. Perhaps those who seek to block the film should see what the rapists had to say for themselves. Perhaps they should ask whether the views expressed by those rapists, and by their defence lawyers, represent the views of anybody they know in India. Those remorseless views, provided with a straight shameless face, need exposure. These distorted, twisted views need to be exposed. And if it doesn’t happen in the context of the most extreme crimes, it is hard to imagine when it will. Nothing in this film will surprise those who have followed news in India since the rape happened. But it is the collection of viewpoints, gathered systematically from the key actors, in chronological order, that is particularly hard-hitting.
As a lawyer myself, I was stunned by the comments of the lawyers, even though I had heard the worst of them expressed before at the time of the verdict. That these men are permitted by their Bar Association to continue to practice in a profession which is bound to uphold the law and Constitution brings the Indian Bar into disrepute. That they continue to be permitted to practice speaks volumes about how common their views are amongst segments of society.
The quotes below are taken directly from the film. They need no embellishment.
The Convicted Rapists:
“A decent girl won’t roam around at night at 9pm.”
“A girl is more responsible for a rape than the boy.”
“Housework and homekeeping is for girls, not roaming in bars and nightclubs, doing wrong things, wearing wrong clothes.”
“20% of girls are good”.
(On the death penalty for rapists) “Now when they rape, they won’t leave the girl like we did. They will kill her.”
The defence lawyers: ML Sharma and AP Singh:
“A female is like a flower. It gives a good looking very softness performance, pleasant. But on the other hand a man is just like a thorn. Strong, tough enough. That flower always needs protection. If you put that flower in a gutter, it is spoilt. If you put that flower in a temple, it will be worshipped.”
“In our society we never allow our girls to come out of the house after 6.30 with unknown persons.”
“If very necessary, it if it very urgent, that she should go outside, she should go with family members like uncle, father, mother… She should not go in the night with the boyfriend.”
“They left our Indian culture.”
“She should not be out on the street just like food.”
“If you put your diamond on the street, certainly the dog will take it out. You can’t stop it.”
“You are talking about men and women as friends. Sorry, that doesn’t happen in our society.”
“A woman means immediately put the sex in his eyes.”
“We have the best culture. In our culture, there is no place for a woman”.
“If my daughter or sister engaged in pre-marital activities and disgraced herself and allowed herself to lose face and character by doing those things, I would most certainly take this sort of sister or daughter to my farmhouse, and in front of my entire family, I would put petrol on her and set her alight.” (A P Singh stood by that statement when asked by the filmmaker).
A friend of Jyoti Singh says in the documentary that Jyoti used to say a girl can do anything. She was robbed of that opportunity. The only light to come from that darkness is the opportunity to talk about this openly. To ask why the English word for “rape” is used instead of a Hindi word. To ask why lawyers are permitted to ‘uphold’ the law and Constitution whilst advocating a sick violence against women. To ask why a woman’s “honour” is questioned by her ability to leave the house unguarded. By her choice to live her life as she chooses. It’s not about Daughterhood. It’s not about Sisterhood. It’s about a woman’s right to live her life, and to be granted her human rights as a equal citizen under the Constitution of India. The performance of India’s politicians yesterday shows how afraid they are of what that question represents for the male hierarchy that continues to dominate Indian society. This film isn’t about shaming India. It tells a story. if it’s uncomfortable, that’s because it needs to be. At times, perhaps the dramatisation might be seen as exploitative.There might be a lack of contextualisation in the film, particularly in the global context of violence. It might be clunky in parts, and it fails to make apparent that the mindset being exposed does not represent all of Indian society. But the story is in the words, almost entirely, of all the key actors in this grotesque incident. This is not fiction. This is a reality. Of course it is not the reality of all Indian men. Nor does it represent all Indian society. India’s civil society movements are vibrant and the feminist voices loud and strong. This should not be a discussion about a film. It should be a discussion on how India can resolve her own traditions of violence against women, whether in the longstanding context of power, religion, caste or gross inequalities on multiple scales. But a discussion on rape should not shame India’s politicians. It’s the attempt to silence that brings shame.
It’s been forty years since the Sex Discrimination Act was passed in the United Kingdom, but this week it seems as though equality laws have passed by a swathe of the population. The weekend announcement from Rachel Reeves MP, Shadow Work and Pensions Secretary and a potential future leader of the Labour party, that she will take maternity leave for the early weeks and months of the next government has exposed the considerable prejudices that lie beneath – and govern – our unequal society. The next time someone asks why women feature so lightly in Parliament, judicial benches and on FTSE Boards, you can point them in the direction of the last 24 hours.
Swift on the heels of Conservative MP Andrew Rosindell’s response that people must be “put in positions they can handle” comes the accusation from Belinda Brown writing in the Daily Mail that Reeves is “treating motherhood as a part-time obligation, almost a hobby”.<a href=”http://www.dailymail.co.uk/news/article-2966117/Sorry-Rachel-taking-Cabinet-seat-going-maternity-leave-feminist-says-BELINDA-BROWN.html#ixzz3SeKI6vCt” target=”_hplink”>http://www.dailymail.co.uk/news/article-2966117/Sorry-Rachel-taking-Cabinet-seat-going-maternity-leave-feminist-says-BELINDA-BROWN.html#ixzz3SeKI6vCt</a> I did a quick tally of the men in Cabinet, or would-be Cabinet, who treat fatherhood as a part-time obligation, or hobby. Funnily enough, I don’t think I have heard that accusation about any of them. A working parent is a working parent. In the 21st century, men and women can choose how they exercise responsibility for their children. The government has recognised this by bringing in legal provisions that allow parents to share responsibility as they see fit in the early months following the birth of a child. Previous Labour and Conservative governments have recognised this by enshrining equality in the law of the workplace, as well as in most other areas of civic life. That equality, however, remains a considerable way off as long as women, but not men, are judged for their decisions on whether or when they have children and if so, how they choose to juggle child-rearing responsibilities.
Brown thinks that no-one who is “being woken throughout the night to feed an infant” should be in a position of power. Presumably she therefore considers that male MPs, or judges or businessmen, never participate in childcare at all. Brown considers it “highly unlikely that Reeves, is going to be able to apply her considerable intellect to political and social problems if she has major commitments elsewhere”. Presumably, then, she considers that male MPs or judges or others in powerful positions never have to prioritise their own commitments, perhaps that the male intellectual capacity is more rigorous than the female who can’t cope with more than one task or crisis. She claims that women “should be prepared to make sacrifices” so that “if we peak a little later in our careers surely that is a compromise we should be happy to make.” She plainly has a solution, then, to the considerable drop-off rate for women in their mid-30s from professional careers which then impedes their return to the workplace in which their male counterparts have years’ and streets’ more experience in which they negotiate, carve out and preserve their status and positions. Really, what she is saying that women with babies should not be allowed to have responsible jobs. Brown concludes that “if Ms Reeves wants to behave like a man, frankly I don’t think she is fit to represent women.” So, here we have a talented frontbench female MP, vowing to abolish the bedroom tax as her first act in government, who is apparently not fit to represent women or, according to Rosindell, unable to handle that position of power, all because of her decision to take a short period of maternity leave. I cannot remember a single male politician with young children, as many do, who have been subjected to such vitriolic challenges on the basis that they, too, have to juggle and prioritise family life with their political commitments. Frankly, we should have been far beyond this in twenty first century Britain. But it is probably no surprise to many of us that we are not.
The fundamental problem is that, in most professional environments, the workplace remains at least subtly – if not actually – determined by men. Men determine the long working hours and presentee culture; part-time or flexible work is often perceived negatively, leaving many women to become disenfranchised and disinvested in their workplaces. Politicians, in fact, do not even have the option to work part time. Men network ferociously in a way that women simply are unable or unwilling to do – try popping into a City restaurant on a weekday evening, for example. Men advance themselves and push themselves forward in a way that is often alien to women as a result of centuries of being told to ‘people please’ and look pretty. Many institutions were designed by men for men. The Houses of Parliament is a classic example, but so, too, much of the corporate and legal worlds in which decisions are made which affect the entire population. Old boys’ networks are just that and they continue to hold sway, especially in those traditional corridors of power. Double standards continue to be applied to women whatever their choices. They can be ambitious, but not ‘too ambitious’. They must compete with men, but can’t be seen to be overly ambitious. Indeed, over- ambitious is the word Brown herself chooses to describe those women who would support Reeves’ decision. She doesn’t suggest an adjective for those men who might equally support Reeves. And then there is maternity leave, and the multiple problems that arise out of the need for women to take some time away from their careers if they choose to have children. Case in point.
The barriers to women advancing in the workplace continue to arise from outdated societal and gender models. In my own profession, the Bar, women judges remain far and few between and although silk appointments are improving, there is still a very long way to go. The reaction from many friends and colleagues to Brown’s article this morning reveals the unspoken gender issues which continue to prevent the full participation of women in the workplace.
A colleague informed me that recently an employment judge said in open court, in the context of an pregnancy dismissal claim, that no new mother should go back to work 5 days a week. When she told him many did exactly that, his reply was, “well it’s not fair on the child though”. I have heard many stories of how senior men in the profession perceive the primary role of female barristers to be at home. Pressures mount when judges are unwilling to allow a barrister to leave court on time to collect children from childcare. There are other stories of how women who have not had children for various reasons themselves face obstacles and prejudice. Many women barristers have been given advice at some stage about the need to deepen their voices when speaking in court. The assumption is that women must transform themselves to get on in a man’s world. Meanwhile, I have been told that a colleague’s children were being taught at school to thank their mothers for staying at home to look after them, irrespective of the fact that she, and other mothers, were in fact at work. Everyday sexism isn’t an imagined problem, but a genuine barrier based on an outdated model that prevents gender equality from becoming reality.
For all those who think feminism should be shackled along with the burned bras of the 1970s, we are not there yet. Ask yourself why there are so few female politicians, so few female judges and decision-makers and so few women on boards when they comprise half of society. The answer might be a circular one. Long confined by history to their roles as mothers and wives, women have had to come out fighting for the same right to use and enjoy their intellect. When they do that, and show that they can, they are often criticised for every choice along the way.
Men and women should be cheering on Rachel Reeves’ decision to fight for her place in government. We need more than lip service. The equality laws have not proven to be enough. We need strong women in Parliament, on the bench and on boards to represent us, to be involved in decision-making and to improve the quality of that decision-making that affects us all. Men, too, need to be willing to speak out and ready to recognise, change and adjust those workplace models which have benefitted their sex until now. And yes, we need strong female role models so that our daughters will look up and believe that they, too, can be valued for more than their ability to look pretty and people-please. There is a life before and beyond maternity leave, and women are entitled to choose how they live it.
Why language matters on the path to accountability
Thirty years after the organized murder, rape and displacement of thousands of India’s Sikhs, both in Delhi and beyond, following the assassination of Indira Gandhi by her Sikh bodyguards in 1984, India’s Sikhs are still waiting for justice.
The country’s legal and political systems have failed to produce any convictions against those who orchestrated the campaign, nor a single conviction against the police officers whose central role in the violence has been well documented. The failure of accountability towards those whose lives were shattered by the violence has been both extreme and blatant. Across the world, in Latin America and South Africa, prosecutions are taking place and attempts at truth and reconciliation have been made to assuage the past. Yet, in the world’s largest democracy, one of the most brutal episodes in its modern history languishes almost unacknowledged, alongside its victims.
The impunity enjoyed by the perpetrators has been compounded by a silence which surrounds 1984, aided by the lack of social media and global rolling television cameras at the time, and a silence in which there has been widespread complicity by politicians, judges and the media. The Congress party, and many others, wonder why everyone cannot now just move on. Alongside the silence, itself partly borne of incomprehension by the victims that this happened at all, has emerged a naked distortion of language that seeks to redesign the facts, or blame the victims themselves.
“When a big tree falls, it’s only natural that the earth around it shakes”.
With those chilling words, Rajiv Gandhi initiated the twisting insidious use of language that would seek to build and create a social myth in India that the mass violence against Sikhs between 31st October and 5th November 1984 was the “involuntary”, spontaneous outpouring of grief in response to the murder of the Prime Minister. But whilst murder convictions were quickly meted out to her assassins, the architects and key perpetrators of 1984’s communal pogroms remain at large. How has this happened, and has language played a part?
Ten government commissions and committees later, India has perfected the British art of throwing a story to the wind by the creation of a Commission of Inquiry. Thousands of affidavits have been filed, although most seemingly discounted in favour of the presumption of innocence of the powerful. Both the Mishra and the Nanavati Commissions in particular, in 1987 and 2005 respectively, recorded evidential findings, including widespread lapses by the police, which should have engendered a powerful legal response.
Justice Nanavati found that from the morning of the 1st November 1984, the nature and intensity of the violence changed to a systematic carnage. It is worth setting out some of his conclusions in full:
“There is evidence to show that at some places the mobs indulging in violent attacks had come in DTC buses or vehicles. They either came armed with weapons and inflammable materials like kerosene, petrol and some white powder or were supplied with such materials soon after they were taken to the localities where the Sikhs were to be attacked. There is also evidence on record to show that on 31-10-84 either meetings were held or the persons who could organize attacks were contacted and were given instructions to kill Sikhs and loot their houses and shops. The attacks were made in a systematic manner and without much fear of the police; almost suggesting that they were assured that they would not be harmed while committing those acts and even hereafter. Male members of the Sikh community were taken out of their houses. They were beaten first and then burnt alive in a systematic manner. In some cases tyres were put around their necks and then they were set on fire by pouring kerosene or petrol over them. In some cases white inflammable powder was thrown on them which immediately caught fire thereafter. This was a common pattern which was followed by the big mobs which had played havoc in certain areas. The shops were identified, looted and then burnt. Thus what had initially started, as an angry outburst became an organized carnage.”
Those findings speak for themselves. But having prepared the groundwork, the Nanavati Commission, like those before it, simply refused to draw the obvious conclusions and conduct the next stage of investigation which could have provided answers to the questions that remain. The failure to ask those questions illustrates the scale of the official attempt to maintain an illusion about the true cause of the 1984 violence.
Here are just a few of those questions: Who organised those meetings on the 31st October? Who permitted and organised the use of official transportation? Who provided and distributed the use of government voter-lists in order to identify Sikh homes and businesses? Were there local gurdwara lists distributed that were registered to identify Sikh residents in particular (as recently emerged evidence suggests)? Who provided, distributed and devised the strategy that led to ‘necklacing’ Sikh men, and where did the white inflammable powder come from? What, too, of the women? Why the silence surrounding the mass rape of women in 1984 quite deliberately employed as a tool of terror? The list goes on, unanswered.
Some of the most pressing questions relate to the finding that there was no fear of the police. In order to determine why there was no fear of the police, it was incumbent on the Commissions to find out where the orders had come from? Both Commissions accepted that there was a delay in calling the army out to maintain law and order. Neither sought to establish the orders, personnel and causal chronology relating to that delay. They failed to investigate the chronology and orders relating to the well-established pattern in which Sikh men were prevented from defending themselves and so on. In circumstances where the evidence clearly demonstrated police complicity, the explanation that officers had retired by the time of the recommendations, for example, and thus were beyond reproach, is farcical. Moreover, given the testimony of thousands of witnesses as to the involvement of the police, which was accepted by Mishra and Nanavati in large part, it remains entirely implausible that all of the officers have been exonerated. Hopeless, embarrassing excuses have been piled up to exonerate the police officers involved. Genocide, crimes against humanity and murder are not subject to limitation constraints.
One explanation, which belies and suggests complicity at the highest level, may be provided by an analysis of the language used in both the Mishra and Nanavati reports. Justice Nanavati was a Supreme Court judge. Justice. Mishra subsequently went on to be promoted to the Supreme Court. There is no credible excuse for their laxity in legal analysis, language or terms of culpability. Ultimately, the choice of wording in Nanavati’s conclusions and recommendations provided a get-out clause to the government of the day, eager to bury the story.
Reverting to the findings of both Commissions that that there had been a delay in calling out the army to restore order. There is no proper explanation for his failure to investigate that critical finding further. The victims of unlawful killing have the right to an effective investigation. Since the police were plainly unable to investigate themselves, it was incumbent on the Commissions to carry out those necessary investigations. Who was responsible for that delay? Who had effective control of the situation on the ground? Were reasonable and necessary measures were taken to prevent crimes taking place? The evidence Nanavati heard clearly indicated that there had been omissions to act which ought to have led to criminal liability. Nanavati’s failure to use the legal language of command responsibility for these high level omissions is unsustainable.
Similarly, his conclusions on the involvement of Congress politicians in the execution of the violence are perverse. They do not stand up to scrutiny. Nanavati, the Supreme Court Justice, inexplicably reverts to vague language which bears no legal meaning. He found, for example, that found that there was “credible evidence against Shri Jagdish Tytler”, a Congress MP, “to the effect that very probably he had a hand in organizing attacks on Sikhs.” Any lawyer will know that such a statement makes no legal sense. The sloppiness of language cannot be accidental, particularly given the strength of the witness testimony against Tytler. The language appears designed to ensure that no direct consequences arise as a result of this Commission’s findings. In a similar vein, Nanavati disbelieved another MP indicted directly by witness testimony, Kamal Nath, but yet chose to conclude that “it would not be proper to come to the conclusion that Shri Kamal Nath had in any manner instigated the mob”. Today, Kamal Nath is the Pro-Tem Speaker of the Lok Sabha, India’s Parliament. Nanavati arrived at similarly unsustainable conclusions in respect of at least two other senior politicians, Sajjan Kumar and Bhagat.
It is unconvincing to attribute the language used to carelessness, given the level of Inquiry. Nanavati, for all his findings of a systematic, organised carnage, continued to refer to the violence as “riots”. In lore, 1984 has become known worldwide as the anti-Sikh riots. But if these were indeed riots on 31st October, Nanavati himself found that they had none of the spontaneous associations of riots by the 1st November. Many have labelled the violence ‘pogroms’, a term originally used to describe the organised massacres of Jews. Others have called for 1984 to be relabelled as “genocide”, now a politically loaded term which governments and civil society organisations are loathe to use.
The definition of genocide, according to the Geneva Convention which India has ratified, includes killing members of an ethnic or religious group, or causing serious bodily or mental harm (which includes rape and sexual violence) to members of an ethnic group with intent to destroy that group, in whole or in part. An individual criminal may be guilty of genocide even if he kills only one person, as long as he knew he was participating in a larger plan to destroy the group.
The evidence before Nanavati enabled him to draw conclusions, at least factually, that there had been conspiracy and/or attempts to commit genocide, direct and public incitement to the same as well as conspiracy. Indeed, he starts his conclusions with the observation that “there was a desire on the part of some persons to teach a lesson to the Sikhs.” At the very least, there ought to have been factual and legal conclusions on murder, and conspiracy to commit murder, in accordance with the Indian Penal Code, and Constitution. Language matters. It procures convictions. It prevents denial. It permits the lengthy process of memorialisation to begin by providing an aide to understanding.
Last month, Indian journalist Hartosh Singh Bal published a brilliant essay in which he asserts new indirect evidence suggesting the orders for the violence came from the Member of Parliament Arun Nehru, a cousin and confidante of Indira Gandhi’s son and successor Rajiv. This connection has long been the subject of suspicion and rumour. When Bal’s material is read alongside that published by the Mishra and Nanavati Commissions, it is clear that a fully effective and meaningful investigation could and would have revealed far more information relating to the architects of the violence. Everything lay, or lies, in the question of political will to seek justice.
The language of the law eventually filters down to society. The State, through government, parliament and the courts, is expected to set the standard by which society operates. The theory is that what is unacceptable in law will eventually become unacceptable in society. Where ‘having a hand in murder’ is tolerated casually by a Supreme Court Justice, instead of indicted formally as murder or conspiracy to murder, society knows that communal violence will be tolerated by the law. The perpetrators of violence against this decade’s unpopular minority are protected by the reality that the last lot wander free. India’s newspapers and politicians still refer to the violence as “riots”. Given the official findings of systematic and organised carnage, the terminology itself has become a tool of denial and oppression.
Today, India cannot say that she can secure justice for any minority, or indeed provide redress and solutions for communal violence. What happened in 1984 – a one-sided, provoked and premeditated attack on a particular community, with police and political complicity in the quite deliberate failures to investigate – has happened again, in Gujarat and Muzafarnagar and will likely happen again elsewhere in India, towards whoever happens to be the unpopular minority of the day, at least at some scale or capacity. India has failed to learn the lessons of 1984 which a proper inquiry, and genuine attempts at accountability would have brought. A previous Communal Violence Bill went nowhere. Cases have been closed by the police in a farcical manner. Prosecutions have failed as one witness after another has been allegedly intimidated or threatened. High-level individuals implicated by credible evidence have prospered or been promoted under successive Congress governments. Witnesses and perpetrators alike have died. The stain of communal violence lingers on. And still there is no justice for the victims of 1984. In fact, there is not even a memorial. Whole communities flounder, both inside and outside New Delhi. Mass graves have been found in Haryana. Still. The language of moving on is mouthed without any attempt at accountability.
Human Rights Watch this week have called for a new time-bound investigation and further legal measures in line with international standards, including specific measures aimed at preventing and redressing communal violence. Amnesty International has garnered massive domestic support for a new investigation. The current Prime Minister Modi, by way of political spat with Rahul Gandhi last year publicly asked why there have been no convictions relating to the Sikh genocide. Whether he now dares or is willing to require his government to take steps against Congress leaders and high level police officials when he himself stands accused by many of complicity in the 2002 Gujarat massacres remains rhetorical.
After thirty years of denial, one has to question India’s capability of resolving this alone? Surrounded by Bangladesh, whose own 1971 ghosts are being tried by a tribunal that is failing to meet the most basic fair trial standards, and a Sri Lankan government determined to keep the UN out in respect of its own genocidal atrocities, there seems little hope that international pressure will even find its way to New Delhi’s open-for-business door. Western nations are clamouring, even now, for lucrative trade contracts with India, and there can be no mistake that trade is raised high above human rights in the corridors of power. In order for that to change, there needs to be both domestic and external pressure. There may be scope for other international mechanisms or inquiries. Wholesale changes to the law and policing culture are required urgently.
But if the language surrounding 1984 is not changed, then India herself cannot change. When that big tree fell, someone chose to shake the earth, someone arranged to bus in mobs to trample on that earth and douse it with kerosene, white powder and blood. Someone chose not to call in the army to maintain law and order. Someone then chose not to investigate it, again, and again, and again.
Are we still calling it a riot now?
31st October 2014
NB This post was published by the Huffington Post on 3rd October 2014 http://www.huffingtonpost.co.uk/schona-jolly/human-rights-act_b_5925990.html
Britain is waking up this morning to the prospect that our future rights will be eroded under a Conservative government. There is jubilation, at least in some newspaper front pages about the return to British values, away from the “madness” of human rights, but the Conservative proposals need to be considered from a legal perspective, rather than from a point-scoring agenda. It is from that legal perspective that it becomes abundantly apparent that the proposals are neither workable, nor logical and in the words of the former Attorney General, Dominic Grieve, “almost puerile”.
Misleading on the powers of the European Court
There are problems in the Conservative plan at almost every level. In failing to properly set out the current legal position, they misrepresent and mislead the public as to the current powers of the European Court, whilst omitting any proper legal consideration as to what the consequences would be both domestically, and internationally. For example, the proposals trumpet the “end the ability of the European Court of Human Rights to force the UK to change the law”. But, as matters stand currently, the Strasbourg court cannot force the UK to change its law. The Human Rights Act recognises the sovereignty of Parliament inherently in section 4 of the Act. Parliament must consent to any change in law which is intended to take account of a European Court judgment. Indeed, Parliament has not been asked to do so in respect of the Strasbourg decision on prisoners’ right to vote, despite the vocal political unhappiness with the decision. Even if Parliamentary sovereignty is protected, there still exists in this country a right to judicially review decisions, despite significant attempts by this government to limit it.
Whilst Section 2 of the Human Rights Act requires UK courts to “take into account” Strasbourg case law, that is all they are required to do. Domestic judges have shown themselves adept at acting in accordance with that diktat. If the Act is repealed, the proposals fail to spell out the consequences for litigants. The Convention still applies to them. The proposals often sound radical, but are actually meaningless. For example, the stated intention to “make the Supreme Court the ultimate arbiter of human rights matters in the UK” is a legal nonsense. The Supreme Court already is the ultimate arbiter of human rights in the UK. However, if the Human Rights Act is repealed, the irony is that it may lead litigants straight back to Strasbourg. Unable to seek a remedy at home, Strasbourg once again becomes the ultimate arbiter on human rights matters for them, adding yet further caseload to the European Court’s burden. It is only if the European Convention is removed from our grasp, altogether, does that cease to be an option.
What, too, of the remaining international obligations that exist for the United Kingdom, in the form of various treaties and conventions which we have ratified? There are many, often cited before the domestic courts and used in the protection of the rights and lives of the most vulnerable in our society. The government has chosen to highlight the rights of “terrorists” or “illegal immigrants”, whilst failing to recognise the plethora of people, for example disabled individuals, who benefit from the protections inherent in both the European and international frameworks. It is a legal fiction that we can disentangle ourselves from one and not the other.
It is precisely that failure to grapple with the UK’s European and international obligations that leaves these proposals with gaping holes. There is a wholesale failure to recognise that English courts, with or without the Human Rights Act, nevertheless will and must take into consideration the various international treaties and conventions which the UK has ratified, and to which we are bound. That is what happened in respect of Strasbourg case law, pre-2000 when the Act came into force, and that is what will happen, again, unless the Conservative government do in fact plan to lead Britain out of the Council of Europe, and outwith the reaches of the Convention. Such may be the intended side-product of the proposed plan to make “some” European Court of Human Rights judgments “advisory”, subject to the agreement of Parliamentary committees. However, since David Cameron clearly wishes to remain part of Europe, these threats appear politically unrealistic, and simply unworkable.
A sliding scale of rights?
Looking then at the narrative on the substantive rights themselves, despite the recognition that the Convention would be placed into primary law, there appears to be an intention to substantially rewrite the fundamental rights and freedoms which most of the world has embraced universally, through a variety of interconnected treaties and conventions. This intention is deeply partisan and intends to impinge entirely improperly on the rights framework on which we are al entitled to rely. The proposals intend to “clarify the Convention rights, to reflect a proper balance between rights and responsibilities”. Lack of detail aside, that statement is deeply worrying.
The proposal amounts to a redefinition of rights and responsibilities that permits the State to set out new, and subjective, parameters of what constitutes responsible behaviour, of which it approves, which only then entitles the person concerned to a recognition of his or her human rights. In other words, a person’s human rights might be considered to be a “bonus” for model citizen behaviour. Take the proposals about redefining “degrading treatment”. That brings to mind the question marks being raised during and after the 2003 Iraq war as to what constitutes “torture”? Is it Mr Grayling who is to decide how that redefinition should result?
Moreover, nothing in the proposals properly reflects that many Convention rights are not absolute, such as freedom of expression or the right to a family life, already involve our own judges (as well as those in Strasbourg) in a balancing act that ensures that proportionality is a key concept. It is through this balancing act that judges ensure that the Convention remains a living instrument. The social norms of the 1950s are not reflected now by judges interpreting the Convention, and the continued retention of a system by which today’s norms will not bind judges in 2050 is to be applauded. This is not “mission creep”, but mission on the way to being achieved.
The proposals suggest that there will be new minimum standards, so that “only the most serious cases” will be permitted to proceed. “Trivial” cases, say the government, will be thrown out. But “trivial” according to whom? The purpose of a human rights framework is to ensure that the citizen is protected against the excesses of the State. The proposals suggest that it will be the government of the day that defines itself what those excesses will be. The proposals also suggest a sliding scale of rights, according to whether the government considers that the complainant merits such rights. Human rights exist for all human beings. It should not be in the gift of government to decide whether to apply them to person A or person B.
These proposals set Britain back on a path to the first half of the twentieth century in which the international frameworks of rights and State responsibilities had not yet been developed. Britain is now part of a globalised twenty-first century world which is defined, at least in part, by international commitments to the rule of law. Britain, in her dealings with the international community, publicly sets store by those commitments. Those states which have chosen not to endorse that framework have become pariah states. If the underlying premise of Conservative policy is to retreat from those obligations and to let Britain stand alone, then that position should be spelled out clearly. Since that step would be unthinkable to all but the most extreme of our politicians, the Conservative party need to ensure that their most able lawyers look again at these proposals. The public are entitled to an informed debate over constitutional issues. If there is a silent desire to remove us from the European Convention on Human Rights, we should be told that in terms. If that is not the intention of this government, but rather a play to the more extreme fringes of politics, these ill-considered proposals on the abolition of the Human Rights Act will lead us sleepwalking into disaster. Britons should be deeply proud of their involvement and influence over the international and European human rights framework, in which British lawyers played a key role. And Britain should be proud of, not undermine, the Human Rights Act.
October 3rd, 2014
This is a letter I sent to Mark Field MP this morning. Please write to your MPs. Feel free to use this letter as a draft for your own letters. Cut and paste as appropriate. There needs to be far more collective outrage over what is happening. There are stirrings from politicians now that the UK response has been inadequate. Your letter may force some action.
I write to you both as a constituent and as an experienced human rights lawyer.
I wish to express my indignation at the way in which the British government has responded to the crisis in Gaza. I hope that you will feel able to convey that indignation and concern to the Prime Minister and government, and that you will take steps to ensure that the government’s position, both in public and private, is rapidly re-assessed.
The British government hails respect for human rights and international law as one of the fundamental axis upon which its foreign policy lies. Such rhetoric must be matched now by a swift and considered appraisal of the legality of the Israeli operations in Gaza. Any such appraisal must be bound to conclude, as I do, that the Israeli government is in serious violation of international law.
That position has been reached by many lawyers, both in the UK and internationally. Indeed, Navi Pillay has expressed early concern that the Israeli action may amount to war crimes. UNWRA has labelled the strikes on its schools as a serious violation of international law. The UNHRC has ordered an independent inquiry. Many NGOs have conducted preliminary investigations on the ground which support the view that Israel has violated international law routinely over these last three weeks.
This morning, we have now witnessed the shelling of the seventh UNWRA school by Israel. There is no justification whatsoever for these actions. Not only are the actions lacking any proportionality, but there has been a complete failure by Israel to distinguish between combatants and a civilian population, in violation of the Geneva Conventions.
The UN has made clear that they have given their coordinates on multiple occasions to Israel. Their shelters have been hit without warning. The thousands of people sleeping in those shelters have been fleeing from areas which have been the subject of intense bombardment. Gazans are closed in all sides by an illegitimate occupation which has blockaded them for many years. They have nowhere to run.
The Israelis have struck well beyond the tunnels which they use to justify this bombardment. They have sabotaged the power plant and basic infrastructure of Gaza, demolishing thousands of homes, schools, hospitals, mosques and facilities. Many Gazans are now without water, power and food. Over 100,000 people are now displaced. They are neither safe at home, nor safe in the shelters. This is not about tunnels, or rockets or captured soldiers. The actions that we have witnessed in these last three weeks have sought to apply collective punishment to the people of Gaza. The target appears to have been the people of Gaza as a whole. Both morally and legally, that position cannot be defended.
In the fog of propaganda that has been spun out by the Israeli government, through Mark Regev, Daniel Taub and others, the Israelis retaliate consistently with the language of self-defence. They make constant unsupported claims about Hamas using its civilian population as shields. These assertions are repeated often enough until they become popular lore. That is not what reporters on the ground are saying. Respected British journalists of all persuasions who courageously have been reporting live from Gaza have been able to give a clear picture of the battering meted out to the mostly civilian population of Gaza.
The British government’s stance of equality and parity, that both sides must be equally criticised is based on a fallacy. There is no parity. The numbers speak for themselves. The number of dead now exceed 1600, with at least a fifth of those children. That number is largely civilian. By contrast, the Israeli dead (numbering about 60 today) are almost entirely soldiers killed in action.
There is no doubt that Hamas’ actions in firing rockets indiscriminately into civilian areas themselves are likely to constitute breaches of international law. Those rockets, however, are met by a sophisticated protection system which ensures that Israeli civilians, whilst no doubt living in some fear, are not presented with a real danger.
By contrast, Gaza and her people are being systematically destroyed.
By continuing to perpetuate the myth that both sides should be criticised equally, and that Israel should be permitted a wide discretion in how it chooses to defend itself, the British government is siding with Israeli action. It is making Britain complicit in the indefensible. We are not acting as an honest broker.
As a country, we have lost much international credibility in our quest for human rights and democracy through the ugliness of the Iraq and Afghanistan conflicts. We now have an opportunity to restore some credibility by supporting both the rights of Palestine to join the ICC, and to ensure that Israel is made accountable through a UN-led investigation, and indeed through the International Criminal Court.
In 2012, the UN designated Palestine a non-member observer state. The Palestinian Authority must be encouraged to ratify the ICC treaty so that the Prosecutor can investigate war crimes since 2012.
No doubt Hamas may also have found itself at the door of the Hague court, had Israel ratified the ICC. Israel has chosen quite deliberately not to do so. The Palestinian Authority has been actively discouraged from acceding to the ICC by the US, Britain and France. This state of affairs is, profoundly hypocritical. The UK was a founding member of the Court, as indeed it has been a founding and drafting member of almost all of the international human rights mechanisms. It was our government’s view that war crimes should be properly investigated, tried and sentenced by an international court in whom the world could have confidence. The ICC should not become a court to try dictators in countries with whom Britain has no significant trading relationship. Rather, wherever war crimes occur, which meet the standard by which the Prosecutor is permitted to intervene, our national position ought to be that we support that Court without reservation. Otherwise, our public pronouncements on human rights and international law are meaningless. In consequence, our opposition of Palestinian accession to the ICC is illogical and indefensible and should be reversed immediately.
The war in Gaza shows no prospect of immediate cessation without unequivocal condemnation from the international community. This weekend’s events in Rafah demonstrate how trenchant the Israeli position has become, at all costs. If those officers acting on the ground to decimate entire communities realise that they may be forced to face the consequences of their actions in a criminal court, they may consider a little harder what they actually are doing.
The British government now needs to speak out and demand an immediate ceasefire to which the condition is attached that the seven year blockade of Gaza is dismantled with immediate effect. Whilst it is entirely right that Hamas be criticised ( and indeed made accountable in the ICC is Israel ratified the treaty) for many of its positions, tactics and rockets, it must publicly be recognised that Israel is not only the aggressor in this situation, but persists in flagrant and naked violations of international law, for which it must be held accountable. The Foreign Secretary’s constant refrain of proportionality appears to be wholly misunderstood by him. It will never be proportionate, within international law, to kill hundreds of civilians and children in a densely crowded residential area because of some sense of military advantage. It is certainly never morally supportable.
We have a long history with Israel, and much leverage with the Israeli government through trade. It is time that we use that leverage to bring an immediate end to the atrocities in Gaza. Further, and as a matter of urgency, we must immediately ensure the cessation of an arms trade with Israel. For ultimately, it is our weapons engaged in the murder of innocent civilians.
Britain and her people must not be complicit in the destruction of a people in Gaza. The British government does not do this in my name. I entrust you as my Member of Parliament to ensure that our government takes the right and proper steps, in both a legal and moral sense, immediately.
After yesterday’s bombing in Beirut, again, I remembered this old post which just sums up the fragility all over again.
It was a dangerous love from the second I set eyes on you. Everyone knew it could never last.
You had been fascinating me from afar for years, like the intoxicating whisper of a stranger who knows he can thrill. I knew you were daring me to touch you, to come close to you and to feel the heat of your breathe on my exposed neck. And when I finally landed in your arms, my cheeks flushed with excitement, you enveloped me with the passion of a man who I knew could never keep a single promise. But still, I came towards you, heady with the adventure of an eastern land, knowing that you were what my mother would call an “unsuitable man”: The kind of man who blames the telephone lines for failing to call, a man who has so many versions of the truth that he can never…
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Jaspreet Singh’s Helium (published by Bloomsbury in November 2013) is a brave, literary account of the darker side of ‘India Shining’. Falling somewhere between fiction, documentary and travelogue, Helium is a courageous novel that seeks unflinchingly to tell the story of the pogroms in which thousands of Sikhs in North India were murdered in just four days following the assassination of India’s then Prime Minister, Indira Gandhi, by her Sikh bodyguards on October 31st 1984.
The protagonist, Raj, was a nineteen year old student on his way back from a class trip with Professor Singh, his mentor, an expert on chemical elements and the man who introduced him to Primo Levi’s The Periodic Table. But the unfortunate timing of the group’s arrival back at New Delhi train station is the 1st November 1984 and mobs have descended across Delhi to seek vengeance for the Prime Minister’s assassination. The chilling shouts across national radio and in the streets are for blood revenge. Professor Singh, with his distinctive Sikh appearance, is targeted by the mob who surround him, throw a tyre over him, douse him in petrol and set him alight. And so the story starts in the shadow of the now notorious statement by the new Prime Minister, Rajiv Gandhi, that “when a mighty tree falls, it is only natural that the earth around it does shake a little.’
Forever scarred by his paralysis and what he later castigates as his own youthful cowardice in running away at the very moment that his mentor needed his help, the story takes place many years later when Raj, now an eminent rheologist at Cornell University, returns to India seeking answers to questions that have been brutally dismembered by an unspoken conspiracy of silence emanating not just from his parents, but from an entire nation.
“The state has tried to wipe away this dark memory…” says one of the characters late in the novel. “…When the parliament reconvened, the government never once mentioned the horrific carnage directly. When schools and colleges reopened, the headmasters and principals completely forgot to mention those four days the city had just witnessed. The state, like a true criminal, took further advantage of the carnage. The astonishing Congress Party spent millions on an ad campaign, which vilified the minorities. The subliminal message of that PR campaign was that the pogroms were ‘natural’, spontaneous, ‘legitimate’, ‘outbursts of anger’, ‘inevitable’, ‘logical’. An entire community with a deep sense of belonging to India and Indianness was constructed by the state as the ‘other’.”
Singh’s novel is angry, bruised with an unfurling sense of injustice brought about not only by the epic failures of the Indian justice system, through which not one member of the political, bureaucratic or judicial class has been convicted despite several judicial commissions and a plethora of evidence against key Cabinet Ministers who have retained power and status today, but also by the “ominous silences’ of “distinguished public intellectuals, liberal-secular writers and established academicians” as well as media complicity in the cover-up. “The National Archives in Delhi…and the Police archives had destroyed many files connected to the violence…The Doordarshan TV archives either destroyed the tapes connected to October/November ’84 or put them away in boxes that would do Stalin’s Russia proud.” Helium devastates any notion that the Congress Party were innocent bystanders in an unfortunate moment in Indian recent history. Make no mistake, this book represents a muscular challenge to the complacency of India’s ruling elite that continues to deny what took place in New Delhi in 1984 amounted to a state-sponsored genocide, or an attempted genocide of its minority Sikh population.
Strongly littered with references to Primo Levi and his Periodic Table, Singh asks the reader:“Why think of one genocide in terms of another? Why use a prism? It is impossible to compare and quantify suffering, I know. Why then? Because one story is better known and the other one completely unknown, completely distorted or filled with ominous silences”. The comparison with aspects of the Jewish Holocaust are sometimes laboured, occasionally clumsy, but the tone of the novel is set by Singh’s apparent conclusion that confrontation is now the only way to seek accountability.
When Raj returns to India, uncertain about his relationship with his father, he goes in search of Nelly, the beautiful wife of Professor Singh (and his one-time lover) whom he has not seen for 25 years. Much of the story is set in the swirling mists of the northern hill station of Shimla, to where had Nelly moved after the pogroms, as she tried to find a life that allowed her to reconcile her multiple losses. Here, in these pages, Singh’s lyrical sense of longing contrasts starkly with the bitter pill of memory that has annihilated the fondness which, one suspects, both he and his protagonist wants to feel towards their homeland. In Nelly’s Shimla, Singh describes the Chir pines, the “Himalayan oaks with serrated leaves and portions of the ageing seven hills around Shimla still covered with trees”. A sense of travelogue unfolds more gently, giving space to the reader from what is, in places, the sheer fury of history.
In places, the book seems to be written expressly for the familiar reader, for the emigrant who pines for the idiosynchrosies of the Punjabi language rather than explicitly aimed at the foreigner who wants to ‘exoticise’ India. Helium is as far from the India of Exotic Marigold Hotels as can be. This narrative is most sharply seen in the exploration of Raj’s marital breakdown with his estranged wife Claire, who clings to a romantic vision of India that she personifies in her husband and seeks to present to their children. For all Claire’s colourful images of Diwali candles and happy Gods, Raj remains silently swamped by memories of burning fires across Delhi. “For many in ’84, death began with rubber tyres…Sikhs were mere objects (of hatred) bonded to rubber tyres, offered to the gods…Agni, the god of fire, has two heads, three legs and seven tongues…”. Clara, Raj tells the reader, is the sort of person who would have told their children (had she been born in Nazi Germany) that the Jewish neighbours were really headed to some land of toys and candles.
Taken from Primo Levi’s poem, Buna, the question ‘With what kind of face would we confront each other?’ becomes one of the most haunting themes of the novel. How would Nelly confront those men who devastated her family, and how would Raj cope when he knew who those men were?
“’A father and son walk on corpses, burning carcasses. Stumble upon piles of hair, burnt rubber tyres, amputated limbs and ash. The son asks his father about those men, who returned home after setting bodies on fire, men who returned after rape. What did they tell their children and wives? Did the wives go to bed with them that night?’”
The most intensely moving section of the novel is told through the device of an interview with Nelly, which takes on the tone of a documentary. The scenes Nelly recalls the day after Indira Gandhi’s assassination, are spent with her close friend, Maribel, the wife of the Mexican High Commissioner, and they unfold with a ghoulish horror. As the women prepare their children for a fancy-dress celebration of Mexican Day of the Dead, the senseless destruction and devastation of the mobs that strike at the core of Nelly’s existence are hard to digest and incomprehensible to any rational human being. Herein lies the absurdity of any attempt to wipe out an ethnicity or a religious group. Every notion of being human is shattered in the depravity. Singh explores this with a gripping emotional force that rips away any preconception that such violence could have been spontaneous.
At times, perhaps, the story collapses under the weight of the historical burden it bears. Singh is determined to ensure that an alternative history of India is presented, replete with references to Bhopal, the caste system and colonialism. Sometimes, this results in the reader being swamped by too much information and India’s narrative, likely autobiographical, might be almost too much for the reader to absorb.
Helium’s literary influences are diverse with strands of Primo Levi running through the prose, and of course W G Sebald’s Vertigo, which presents the epigraph and essential tenor of the novel: How I wished during those sleepless house that I belonged to a different nation, or, better still, to none at all.”
A random character in the novel asks: “Why don’t you Sikhs forget what happened a long time ago?” The elderly man paused for a while and said: “For the same reason we Indians don’t forget British colonialism, the Amritsar massacre or Mahatma Gandhi’s Dandi, Diwali and Dussehra. And you want me to forget something that happened as recently as 1984?”
“As long as you are alive, your story is alive”, Nelly’s supervisor tells her shortly after she has escaped 1984 with her life. Jaspreet Singh’s Helium is a powerful, poignant attempt to bring that story to life, and perhaps, in some way, to right the wrongs of a shameful historical amnesia.
Published by Bloomsbury
Hardback, 7 November 2013, £16.99
eBook, 6 August 2013, £14.99