Tuesday, September 27, 2016

Anil Nauriya - Sectarian Politics and the Partition of India: The Targeting of Nehru and the Congress

The rise of Hindutva-related organisations in India, especially since the late 1980s, has witnessed frequent attacks by them on the pre-freedom Congress in relation to the partition of India in 1947. These attacks increased since 2013 in the run-up to the General Elections of 2014. Some Hindutva organisations have become less covert than before in their glorification of the assassins of Mahatma Gandhi. Simultaneously, other sections of Hindutva forces have sought to disclaim responsibility for Gandhi’s assassination and to shift the focus of their attack on Jawaharlal Nehru.

In this essay, (Download PDF [364 KB]Supreme Court advocate and writer Anil Nauriya, explores some aspects of these phenomena. He underlines also a connection between these tendencies and a development on another plane. This is that certain somewhat dubious and one-sided critiques of the pre-freedom Congress in relation to partition fostered by late 20th century colonialist historiography have been feeding into the Hindutva narrative.

Decades after the assassination of Mahatma Gandhi, the Hindu Mahasabha workers have in recent years become emboldened publicly to glorify his assassins. On January 30, 2016, precisely 68 years after the assassination, some of them reportedly distributed sweets to mark the killing as they continue to hold Gandhi responsible for the Partition of India in 1947.

On the same day an intellectual associated with the Rashtriya Swayamsevak Sangh (RSS) sought, on the electronic media, nominally to dissociate the RSS from the prime assassin. However, the RSS and its various offshoots, including the Bharatiya Janata Party (BJP), have seldom dissociated themselves from holding the Indian National Congress (Congress) responsible for Partition. On the contrary, this has been a major plank in its propaganda offensive against the Congress. Many BJP leaders have resorted to such rhetoric, especially at election time.

For instance, these attacks became especially marked since the latter months of 2013 in the run-up to the General Elections of 2014 1 . Some of the Hindutva organizations have also become less covert than before in their glorification of the assassins of Mahatma Gandhi. Simultaneously, other sections of Hindutva forces have sought to disclaim responsibility for Gandhi’s assassination and to shift the focus of their attack on Jawaharlal Nehru 2 .
There have also been some gradual changes in the rhetoric of the BJP compared, on the one hand, with that of the Jan Sangh, its pre-1977 predecessor, and on the other, with that of its natural allies such as the Hindu Mahasabha, the Shiv Sena and similar parties. The Hindu law reform conducted in the 1950s during Jawaharlal Nehru’s tenure as Prime Minister had not gone down well with the sections of society prone to support the Jan Sangh, and the momentous churning of a near-stagnant social milieu provided a further point for conservative Hindu bitterness towards the country’s first Premier. It was some two decades later, with the Jan Sangh’s involvement in the political movement led by Jayaprakash Narayan (JP) in the mid-1970s, that the Sangh found itself having to engage Gandhians, Sarvodaya workers, socialists and others.

The targeting of Nehru
Thus, when the Jan Sangh re-emerged in 1980 as the BJP, its traditional doctrinal positions gave way to some modified formulations; alongside it became necessary to reshuffle the punching bags that the new party would target in its political practice. It is in this phase that its fire came to focus more exclusively on Nehru and his family. This did not mean that the BJP quite discarded its previous antagonism toward Gandhi.

By the 1990s, the BJP under Lal Krishna Advani had internalised Hindutva, the ideological position of Vinayak Damodar Savarkar, the Hindu Mahasabha leader. In 2003 the BJP-led National Democratic Alliance (NDA) government even installed, in the Central Hall of Parliament, a portrait of Savarkar who had directly inspired Gandhi’s assassin. JP was long dead and, in any case, for the BJP, he had served his purpose. The BJP (and the Shiv Sena) felt enabled to disclose some more affinities with the Hindu Mahasabha without directly attacking Gandhi himself.

The BJP strategy of not directly attacking Gandhi coupled with a selective utilisation of his name continues. Given the great respect in which Gandhi is widely held, it would have perhaps been inexpedient for the BJP, both domestically and internationally, to adopt a course that a party with no immediate prospect of wielding – or continuing to wield – power might have felt free to do. For that reason, despite the celebration and sweets-distribution organised by Hindu Mahasabha workers on the anniversary of Gandhi’s assassination in 2016, the main focus of the Hindutva-BJP attacks in the immediate future is likely to be not on Gandhi as such but on the Congress, in particular on Nehru and his family.

The functioning of the post-1969 Congress too facilitated this concentrated fire on Nehru’s family by the BJP. As the Congress began increasingly to be identified personally with Nehru’s daughter, Indira Gandhi, power within the party came to be centralised in her and her younger son during the emergency (1975-77). After her return to power in 1980, and the death later in the year of the younger son, power within the party came to be wielded also by her elder son who would, after her assassination in 1984, succeed her as Prime Minister and remain in office till 1989. Finally, after the death of all three, the Congress came gradually to be identified at its apex with Sonia Gandhi and also, in due course, her children. In this scenario, attacks on Nehru and his dynasty have received new traction. A very substantive part of the Hindutva attack involves popularising the thesis that the Congress in general, and Nehru in particular, were responsible for Partition.

There have been two tactical features of the Hindutva attack on the Congress in relation to Partition. First, Hindutva forces consciously eschewed any reflective analysis of the pre-independence politics of the Hindu Mahasabha and, second, with respect to British imperial objectives, they either passed them over sub silentio or treated them as not being of adequate importance in determining the ultimate outcome of Partition.

The silence over Savarkar
For example, the consequences of V.D. Savarkar’s adoption of the two-nation theory have not been reflected upon, let alone honestly analysed in Hindutva historiography and propaganda. In his presidential speech at the Calcutta session of the Hindu Mahasabha in December 1939, Savarkar declared that “We Hindus are a nation by ourselves” 3 . In this speech he pointedly excluded Muslims from this definition of nation. Significantly, this was a few months before Jinnah and the Muslim League formally adopted the two-nation theory.

On August 15, 1943, four years after the ‘Hindus are a nation’ articulation, Savarkar said:
“For the last 30 years we have been accustomed to the ideology of Geographical Unity of India and the Congress has been the strongest advocate of that unity but suddenly the Muslim minority, which has been asking one concession after another, has, after the Communal Award, come forward with the claim that it is a separate nation. I have no quarrel with Mr Jinnah’s two nation theory. We Hindus are a nation by ourselves and it is a historical fact that Hindus and Muslims are two nations4."

There are three noteworthy points about this statement. First, in spite of his earlier 1939 speech, Savarkar now affects surprise at the Muslim League demand. Second, even he concedes that the Congress has been the strongest advocate of the unity of India. Third, he endorses Jinnah’s two-nation theory. It is quite amazing that even after Savarkar took the position that Hindus and Muslims were separate nations, Hindutva-oriented circles could claim to raise the banner of Akhand Bharat (and even murder Gandhi in its name). Indeed, the Akhand Bharat slogan was again raised by an RSS spokesman on August 15, 2016 5 .

A leading political figure like Savarkar would, it must be assumed, have been fully aware of the demographic composition of the various regions of undivided India. When he spoke of Hindus and Muslims being two separate nations, surely he must have known, or would have been expected to know, that this could serve to legitimise the demand for separation of the regions where there was a majority of the people who he argued constituted a separate nation.

Obviously, Savarkar was aware of the implications of what he was saying. He knew, as even a person of the meanest intelligence would have been expected to know, that such a formulation could involve geographical Partition. Even though they may raise the slogan of Akhand Bharat, the Hindutva-oriented critics’ real grievance against Gandhi, Nehru and the Congress, therefore, was not, and is not, that the country was divided. Their real grievance obviously is that Gandhi, Nehru and the Congress continued to believe in a composite culture and a concept of nation that did not accord with theirs. That is why Gandhi lost his life and that is why Nehru is under attack today. Such matters are not analysed or even mentioned in writings by persons belonging to organisations like the RSS, Jana Sangh or the Bharatiya Janata Party 6 .

As it happened, the vigorous renewal of the Hindutva propaganda holding the Congress responsible for Partition, began even asa similar critique of the party, albeit from a diametrically opposite perspective, was being developed in some academic writings, especially at Cambridge University. From the early 1980s, this would gain appreciable circulation and also feed into the Hindutva attack. It is, therefore, necessary to deal with this particular academic critique, as it appears, in spite of its many errors, to be not infrequently repeated 7 .

As in the case of the Hindutva positions, discussion here too proceeds without recognition of the existence of any British colonial strategic objectives regarding Partition. This is strange considering the attention given by the British to retaining control in areas in undivided India’s north-west and the north-east 8 .

The hypothesis has been put across from time to time that in the 1940s Nehru stood in the way of a federal structure which Jinnah supposedly desired 9 . The notion, which has in recent years received some traction, seems to be that Jinnah stood for a more inclusive, broader Union which was not acceptable to the Congress leaders. Generally, the “loose federal Union” argument is made in the context of the British Cabinet Mission Plan of May 1946. The Cabinet Mission Plan, in paragraphs 6 and 7, rejected the ‘larger’ and ‘smaller’ versions of Pakistan that had been placed for consideration, and overtly envisaged an undivided India. The Plan was to be subject to re-consideration at the instance of any province after 10 years, and every 10 years thereafter. It envisaged three Groups A, B, and C; Group B would consist of the Muslim-majority provinces in the north-west and Group C of the eastern provinces of Bengal and Assam. The Groups would come together at the Centre in respect of specified subjects.

The fallacy of a federal Cabinet Mission Plan
The two underpinnings of the “loose federal structure” argument are, first, that this is an adequate description of the character of the Cabinet Mission Plan of 1946 and, second, that Jinnah had “accepted” this Plan. The view, first expressed by the then Viceroy Wavell, and later popularised by Cambridge scholars as well as some Bombay-based lawyers, was that the Cabinet Mission Plan was “accepted” by Jinnah and the League and that this implied that the Pakistan demand had been given up. This view has been widely circulated, sometimes with the qualification that the demand was effectively given up 10 .

The opposite was the case in fact. The resolution passed on June 6, 1946, by the Council of the Muslim League, by which the Plan was supposedly “accepted”, made it clear that Pakistan remained its “unalterable objective” 11 . Curiously, this part of the resolution was not emphasised either by Ayesha Jalal in her work on Jinnah published by Cambridge University Press or by H. M. Seervai in his work on Partition 12 . Jalal and Seervai did not deal also with the League’s Madras session (1941), where it had been made it clear by an amendment to the League’s Constitution that its Pakistan demand was not a ‘bargaining counter’. Both these writers were the principal propagators, after Wavell, of the idea that the League had “accepted” the Cabinet Mission Plan which had, prima facie, rejected the Pakistan idea.

The second and third paragraphs of the League’s resolution of June 6, 1946, reiterated that Pakistan remained “the unalterable objective” of the League and that the Cabinet Mission Plan was for it only a step towards Pakistan, which it saw as “inherent in the Mission’s Plan” 13 . It is not as if the League had “accepted” the Cabinet Mission Plan and the Congress and Nehru simply came and torpedoed it. The League’s options with respect to the Cabinet Mission Plan were restricted as the Labour Government in Britain at this stage was not willing overtly to go further by way of a direct Pakistan commitment. The Mission’s Plan ostensibly rejected the Pakistan concept; even so, as the League noticed, an alternative route to Pakistan was implicit in the Plan. In the third paragraph of the League Council’s resolution of June 6, 1946, it was observed that “it will keep in view the opportunity and right of secession of Provinces or groups from the Union, which have been provided in the Mission’s Plan by implication” 14 . There was on the League’s part no intention to work the Plan except as a route to attain Pakistan.

While later withdrawing its “acceptance” of the Cabinet Mission Plan, the Muslim League had cited, inter alia, a statement by Nehru on July 10, 1946, at a press conference in which he had declared that the Constituent Assembly would be sovereign 15 . Yet given the fact that the League had, just a month earlier, on June 6, 1946, reiterated the Pakistan objective, it is hardly fair to blame Nehru’s statement for a withdrawal of a League “acceptance” that did not really exist in the first place.

Besides, the Congress had already made it clear through Maulana Azad’s letter of May 20, 1946 to Lord Pethick Lawrence, who led the Cabinet Mission, that it would look upon the Constituent Assembly as a sovereign body for the purpose of drafting the Constitution “unhindered by any external authority”. This letter was drafted by Nehru. What Nehru said on 10 July 1946 was, therefore, not entirely new.

A federal structure requires that the provinces have some control over themselves and their fate. In their submission to the Cabinet Mission four days before the Plan was announced, the League had somewhat brazenly referred to Assam as a “Muslim province” 16 . The Cabinet Mission obliged the League by placing Assam in Group C, along with Muslim-majority Bengal. There was hardly any upholding of the federal principle here. In placing Assam in Group C the British would have known that they were including in the Plan a “deal-breaker”. The statement issued by the Cabinet Mission on May 16, 1946, required under Paragraph 19 (iv) that the provincial representatives to the Constituent Assembly would divide up into three Sections (corresponding respectively to Groups A, B, and C). Paragraph 19 (v) of the Statement further required that these “Sections shall proceed to settle Provincial Constitutions for the provinces included in each Section and shall also decide whether any Group Constitution shall be set up for those Provinces”. 

Maulana Azad pointed out in the letter (drafted by Nehru) to the Cabinet Mission on May 20, 1946, that Bengal would thus play a dominating role over Assam as the Plan required the Provincial Constitution to be “settled” not by the Province but by the Section, that is Constituent Assembly members belonging to Group “C’, comprising Bengal and Assam. Rules framed by Group “C” could thus nullify the theoretical option given to a Province to opt out of a Group at a later stage. Azad pointed out that similarly in Group B, Punjab would dominate over Sind and the NWFP. Incidentally, those familiar with the workings of politics in Pakistan today would readily endorse the validity of this apprehension. In the form in which it was presented, the Cabinet Mission Plan cannot be treated as coterminous with or equivalent to setting up a “federal structure”. In actual fact it had the effect of covertly throttling provincial federalism at the Group level.

There were other features militating against inclusiveness. Some of these were immediately obvious. Others unfolded in the course of the Cabinet Mission’s deliberations. Sikhs were left out on a limb in Group B. Jinnah resisted also a role for non-League Muslims in the Executive Council envisaged under the Cabinet Mission Plan. Thus he sought to determine not only the League’s representation on the Council but also the composition of the Congress representation. In this context, Zakir Husain was to Jinnah a “Quisling” 17 . To describe such positions as federalist or inclusive in any way is hardly tenable.

Speech-making apart, Jinnah had difficulty not only with the federal principle but also with a pluralist approach on Pakistan. In the course of his talks with Jinnah in 1944, Gandhi had suggested a referendum in the Muslim-majority areas to ascertain by adult suffrage of “all of the inhabitants of the Pakistan area” whether they wished to be part of a separate state. The offer is recorded in Gandhi’s letter of September 22, 1944 to Jinnah. He also suggested in the letter that a “third party or parties” be called in “to guide or even arbitrate between us”. Jinnah responded on September 25, 1944, by demanding that the voting in such a referendum be confined to the Muslims in the area 18 . Thus he was not inclined to permit the Sikhs, Hindus, Christians and others in the so-called Pakistan area to have a say in the future of the area that was their home. Such positions sit ill with civil libertarian claims.

Throughout the relevant period, the British resisted suggestions for resolution of the inter-communal question which did not involve a key role for themselves. They saw themselves as arbiters in an inter-communal dispute. Gandhi and Maulana Azad had called this particular bluff more than once in statements usually neglected by historians.

On August 8, 1942, a few hours before his arrest on the next day, Gandhi dictated a letter to a citizen of Bombay, backing Azad’s offer to the League that if it cooperated fully in the demand for Indian independence, the Congress would have no objection “to the British Government transferring all the powers it today exercises to the Muslim League on behalf of the whole of India, including the so-called Indian India” 19 . On May 8 1946, also Gandhi had suggested that an “impartial non-British tribunal” go into the points of dispute 20 . But it was difficult to get the British to agree. In fact, the provision in the Cabinet Mission Plan regarding review after every 10 years also contained within it the likelihood of continued British supervisory presence.

Parenthetically, we may note that within independent Pakistan too, Jinnah was not enamoured of federalism or its implications. Although Bengalis constituted a majority in Pakistan after its formation, Jinnah, in a speech at Dhaka on March 21, 1948, declared that Urdu and “no other language” would be Pakistan’s state language 21 . It was this early disinclination to grant a due place to the Bengali language in Pakistan that contributed to the movement for secession of its eastern wing.

The oft-heard lament for the Cabinet Mission Plan and the attempt by diverse forces to pin its ‘failure’ upon the Congress and Nehru is especially surprising considering some other particularly obscure features of the Plan. These features associated with the Cabinet Mission Plan have historically not received adequate attention. These relate to the complicated tie-up envisaged in the Plan between four future events and processes: (i) the lengthy Constitution-making process required under the Plan, (ii) the transfer of power and sovereignty in the form of independence to India, (iii) the condition relating to the formulation of a treaty between the United Kingdom and the Constituent Assembly and (iv) the stationing of British troops in India and the terms on which these troops would be withdrawn.

An examination of this intricate inter-relationship, indicates that the Cabinet Mission Plan was not a document simply offering a ‘loose federal Union’. We may, for the present, consider these features seriatim. First, the length of the Constitution-making process envisaged under the Plan; for it was only after this process was complete that sovereignty was to be transferred under the Plan. In a statement issued on the same day as the Plan was announced, Stafford Cripps declared:
“So the three Sections will formulate the Provincial and Group Constitutions and when that is done they work together with the States representatives to make the Union Constitution. This is the final phase 22".

Thus, as per the Cabinet Mission’s Plan, work on the Union Constitution would start only after Provincial and Group Constitutions were ready. That meant that each Group could take its own time settling its own Constitution and the constitutions of the Provinces comprising the Group. Then work would start on the Union Constitution in association with the (princely) States. Paradoxically, the Cabinet Mission Plan simultaneously declared [in Paragraph 14] that British paramountcy over the princely States would not be transferred to the new Indian government on attainment of Indian independence. Thus even while expressing the hope that the princely States would co-operate, the Cabinet Mission Plan offered the States the enticing prospect of their own independence if they did not co-operate in the making of a Union Constitution.

Second, it is not generally known that the matter of transfer of sovereignty was deferred under the Cabinet Mission Plan. The Secretary of State for India, Pethick Lawrence, as leader of the Cabinet Mission, wrote in his letter dated May 22, 1946, to Azad that “independence cannot precede the bringing into operation of a new Constitution” 23 . He added: “When the Constituent Assembly has completed its labours, His Majesty’s Government will recommend to Parliament such action as may be necessary for the cession of sovereignty to the Indian people…24[emphasis added]

Even at that stage this transfer of sovereignty was to be subject to certain provisos. Oddly enough, these vital issues have often escaped attention.

A third aspect concerns the Treaty envisaged under the Plan. Paragraph 22 of the Cabinet Mission Plan made it “necessary to negotiate a treaty between the Union Constituent Assembly and the U.K, to provide for certain matters arising out of the transfer of power 25".

The Cabinet Mission did not envisage any transfer of sovereignty in the form of independence without the Union Constitution having been drafted and in the absence of such a Treaty having been negotiated. The inevitably long-drawn Constitution-making process intrinsic to the Plan also implied the possibility of continued British supervisory presence. What shape would this take? Moreover, what was there to prevent this supervisory presence from telescoping into the review after the 10 years envisaged in the Plan? [It may be noted parenthetically that it was only on February 20, 1947, by when it had become fairly clear that the Cabinet Mission Plan was not working, that the British Prime Minister announced a “definite intention” to hand over power to Indian hands “not later than June 1948”.]

There is finally the inter-related matter of the stationing of British troops. In the Nehru-drafted letter of May 20, 1946, Azad had pointed out to the Cabinet Mission that its notion of British troops remaining in India “till after the establishment of the Government in accordance with the instrument produced by the Constituent Assembly” would be “a negation of India’s independence” 26 . Nehru made this point several times. For example, on August 20, 1946, he observed:

“I am sure that when British armed might is removed from India, it will be easier for all of us to face the realities in India and arrive at mutually advantageous agreements27."

The Cabinet Mission while confirming in its statement on May 25, 1946, that there was “no intention of retaining British troops in India against the wish of an independent India under the new Constitution”, maintained that “during the interim period” it was “necessary” that “British troops should remain”28. By “interim period” was meant the entire elongated period leading up to the framing of the Union Constitution under the Plan, which would be a sequel to the framing of the Provincial and Group Constitutions, and finally the formulation of a Treaty between the Constituent Assembly and the U.K.

Not surprisingly, in his letter dated May 20, 1946, to Pethick-Lawrence, Gandhi had also observed that with British troops in India, “independence would in fact be a farce” and that “it can in no way be contended that in the face of the troops, there would be natural behaviour in the Constituent Assembly29”.

Thus in the obviously long-drawn Constitution-making process envisaged under the Plan, with no transfer of power or sovereignty in the form of Indian independence, and with one political party still committed to its objective of Pakistan, the continued British presence, including the presence of British troops, had the distinct prospect of playing off Groups, Provinces, and Princely States against one another.

The Cabinet Mission Plan was quite different from the current perception of it in sections of the academic community and among sections of the intelligentsia. That this perception has acquired an appreciable hold is, in part, to be accounted for by the resources still available to colonialist historiography. Far from being the blueprint of a loose federal Union, the Cabinet Mission Plan contained within it no early, clear and definite prospect of Indian independence as such; instead it set out a Constitutional route for dissolution, a possible prelude to a larger Pakistan and even to the prospect, under colonial auspices and under the watch of British troops, of the separate independence of various Princely states.

Looked at from any angle, therefore, it appears that attempts to shift the primary responsibility for failure of the Cabinet Mission Plan and consequently for Partition upon Nehru individually or upon the Congress collectively, whether these attempts be made on behalf of Hindutva or on behalf of the League or by Colonialist historiography, are less than convincing and historically dubious. This is so particularly because each one of the forces involved in or associated with such targeting usually excludes its own role from the analysis. It is necessary that this record be set straight as the sectarian accounts tend to become elements in the contemporary political and electoral arena.

1.^ See, for example, Narendra Modi’s statements reported with the dateline Kheda, November 10, 2013. Last accessed September 6, 2016.
2.^ See, for example, the report about an article published on October 17, 2014 by the mouthpiece of the RSS in the southern state of Kerala. Last accessed September 6, 2016.
3.^ Indian Annual Register, 1939, Vol 2, p. 317.
4.^ Indian Annual Register, 1943, Vol 2, p. 10.
5.^ The Indian Express, 2016, RSS leader asks youth to make ‘Akhand Bharat’ a reality. August 15. Last accessed September 23, 2016.
6.^ See, for example, Jaswant Singh, Jinnah: India-Partition-Independence, Rupa and Co, New Delhi, 2009. Incidentally, the silences on the Hindu Mahasabha, and its post-Malaviya leadership, in Jaswant Singh’s book become more deafening as Partition approaches. The last mention in it of the Mahasabha is with reference to the Gandhi-Jinnah talks of 1944 about which it is observed at p. 312: “The announcement of the impending meeting also angered the members of the Hindu Mahasabha”.
7.^ For an earlier critique of such perspectives, see Anil Nauriya, ‘Some Portrayals of Jinnah : A Critique’, in D.L. Sheth and Gurpreet Mahajan (eds.), Minority Identities and the Nation-State, Oxford University Press, New Delhi, 1999, pp. 73-112.
8.^ We may cite one of various indications of a British expectation of a foothold in the so-called ‘Pakistan’ areas. On 25 April 1946, a few days before the Cabinet Mission Plan was announced, one of the contingency arrangements put forward by Sir William Croft, the Deputy Under Secretary of State, India Office, was “that we should withdraw from Hindustan and leave it to its own devices while staying in Pakistan by agreement which he estimated would be forthcoming…”.(The Transfer of Power, 1942-7, HMSO, London, Vol VII, Document 138). Upon this Viceroy Wavell said that he “had considered this possibility in consultation with the Commander-in-Chief, and thought that we might have to contemplate something of the sort”. …”.(The Transfer of Power, Vol VII, Idem). At the meeting of the Cabinet Delegation with Wavell on 31 May 1946 the Viceroy said that “he did not feel that there were final grounds for rejecting the possibility that we might remain in North-Eastern and North-western India for an indefinite period.” (The Transfer of Power, Vol VII, Document 415) This line of thinking was understandable also because, so far as British control of India was concerned, Wavell, his administration and provincial Governors were naturally more in sync with policies maintained by the previous British Government headed by Winston Churchill than with the post-war Labour Government. Earlier, when on a visit to England soon after the change in Government, Wavell had on August 31, 1945 called on Churchill, the former Prime Minister, the latter’s parting advice had been to “ Keep a bit of India”. (Wavell, The Viceroy’s Journal, Oxford University Press, Delhi 1973, p. 168).
9.^ In an article published on August 18, 2009, Jaswant Singh was reported as follows: He said Jinnah envisaged that some areas of the new country would have Muslim majority areas and some Hindu majority areas and believed a federal system that kept the country as one was desirable. Nehru, by contrast, demanded a system that was centralised. "Nehru believed in a highly centralised policy. That's what he wanted India to be," Mr Singh went on. "Jinnah wanted a federal polity. That, even Gandhi accepted. Nehru didn't. Consistently he stood in the way of a federal India until 1947 when it became a partitioned India."http://www.independent.co.uk/news/world/asia/search-for-the-real-villain-of-partition-divides-india-again-1773486.html". Last accessed September 6, 2016.
See also: ‘Nehru was as much to blame as Jinnah for Partition’ (January 2016). Rediff interview with Nisid Hajari (author of Midnight’s Furies: The Deadly Legacy of India’s Partition, Viking/Penguin, Gurgaon, 2015):. "http://m.rediff.com/news/interview/nehru-was-as-much-to-blame-as-jinnah-for-partition/20150813.htm". Last accessed September 6, 2016. In the interview to Rediff, Hajari asserts : “Up until the spring of 1946, a political compromise that would have preserved a united India, was still possible. The Congress – Nehru in particular- would have had to grant the Muslim areas that (eventually) became Pakistan more autonomy than he was willing to grant, and have had to accept a weaker Central government than he wanted”.
10.^ See, for example, Aijaz Ahmad, “‘Tryst with destiny’ – free but divided”, The Hindu, Independence Day Supplement, August 15, 1997, pp. 21-27 at pp.22-23.
11.^ For text see Maurice Gwyer and A. Appadorai, Speeches and Documents on the Indian Constitution, 1921-47, Vol. II, Oxford University Press, Bombay, 1957, pp. 600-602 at p.601.
12.^ Ayesha, Jalal, The Sole Spokesman : Jinnah, The Muslim League and the Demand for Pakistan, Cambridge University Press, Cambridge, 1985 and H M Seervai, Constitutional Law of India, Vol 1, N M Tripathi Private Ltd., Bombay, 1991, (4th edition).
13.^ Gwyer and Appadorai, Speeches and Documents on the Indian Constitution, 1921-47, Vol. II, 1957, p. 601.
14.^ Idem.
15.^ Gwyer and Appadorai, op. cit., p.619.
16.^ Terms of Offer made by the Muslim League as a basis of agreement, 12 May 1946, see Gwyer and Appadorai, op. cit. p. 573. Earlier, on February 7, 1946, Viceroy Wavell, in a cable to Pethick-Lawrence had accepted that Assam (apart from Sylhet district) was not a province to which there could be “a reasonable claim” on behalf of the projected Pakistan. (The Transfer of Power, 1942-7, HMSO,London, Vol VI, Document 406). When the Cabinet Mission Plan was yet in the making the Mission offered to Jinnah on 16 April 1946 the possibility of a Union Centre limited to essential subjects and envisaging also “in one federation the whole of the Provinces of Sind, Baluchistan, North-West Frontier Province, the Punjab and Bengal plus perhaps the Sylhet district of Assam”. (The Transfer of Power, 1942-7, Vol VII, Document 116). By the time the Cabinet Mission Plan was announced in the following month, Assam as a whole was to be added to Group C. The Mission was fully aware of the unfairness of this particularly when the Group was to frame the Provincial Constitution as well. A note by W. Croft and F.F. Turnbull, secretary to the Mission, circulated on 25 April 1946, and by these two men and G.E.B Abell, the Private Secretary to the Viceroy, on 2 May 1946 presaged this change in the manner the Mission would treat Assam. [The Transfer of Power, 1942- 7, Vol VII, Documents 140 (enclosure) and 179]. While these documents were not as such “accepted” they clearly affected the evolution of the Cabinet Mission proposals. Besides, a further rigidity was introduced in terms of restricting the possibility of any Province opting out of the particular Group in which it had been placed. After initially suggesting that “Provinces should be free to form groups…”, a formulation that still remained in Paragraph 15 of the Cabinet Mission Plan, the same document went on to nullify this by specifying in Paragraph 19 (viii) that “opting out” by a province from the Group could only be after “ the new Constitutional arrangements come into operation” and “after the first general election under the new Constitution”. The change in Paragraph 19 occurred primarily as a sequel to a cable on 9 May 1946 from F. Burrows, the Governor of Bengal whose views had also been sought by Wavell. (The Transfer of Power, 1942-7, Vol VII, Document 231). Burrows wanted also to ensure that the voting system within the Group, for formulation of the Constitutional arrangements, be such that decisions would be by simple majority. The inherent unjustness of this was marked also in relation to the NWFP and similarly placed provinces. In any explanation of partition and analysis of sectarian politics the role of officials like Croft, Turnbull, Abell and Burrows who pointedly introduced and encouraged sectarian demands needs close evaluation. The arrangements devised by them appear to have been programmed to ensure the failure of the Cabinet Mission even before publication of its Plan. How these arrangements could be projected in scholarship and in ‘popular’ writing as loose federal arrangements, and Nehru accused of opposing them without justification, remains quite inexplicable.
17.^ Wavell, The Viceroy’s Journal, p. 296.
18.^ Sharifuddin Pirzada, Quaid-e-Azam Jinnah’s Correspondence, East and West Publishing Company, Karachi, 1977, p.124.
19.^ Collected Works of Mahatma Gandhi, (CWMG), Vol 76, p. 382.
20.^ CWMG, Vol 84, p. 123.
21.^ Quaid-i-Azam Mohammad Ali Jinnah, Speeches & Statements as Governor General of Pakistan 1947-48, Ministry of Information & Broadcasting,Government of Pakistan, Islamabad, 1989, p.183.
22.^ Gwyer and Appadorai, op. cit., p. 585; italics added.
23.^ Gwyer and Appadorai, op. cit., p. 591
24.^ Idem
25.^ Gwyer and Appadorai, op. cit., p. 583.
26.^ Selected Works of Jawaharlal Nehru, Vol 15, Orient Longman, New Delhi, 1982, p.177
27.^ Ibid., p. 303.
28.^ Gwyer and Appadorai, opcit., p. 595.
29.^ Collected Works of Mahatma Gandhi, Vol 84, pp. 173-174.

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Monday, September 26, 2016

Ai Weiwei: Xia Lin verdict exposes the unfairness of China's legal system

I planned to sue the Public Security Bureau in Sichuan for exercising violence; Xia accepted my offer to hire him as a lawyer and went with me to Sichuan. Despite our efforts, we were unable to file a lawsuit in the Sichuanese courts. The Public Security Bureau, the Sichuan People's Procuratorate, and the provincial courts all denied any physical abuse took place.

It is a difficult struggle to be a lawyer in China. The law stands behind those in power, and the judicial system lacks independence. I knew that bringing Xia Lin along could not change the situation. He also felt helpless about it.

In 2011, we faced a familiar predicament when I was detained and released after 81 days. Fake Limited was charged with tax evasion, and it hired Pu Zhiqiang as its defense attorney. For that case, he partnered with Xia Lin, who was a colleague from the same law firm. Xia left the team after working on the case for a period of time. I could not agree with his reason for parting ways. 

Regardless, Pu Zhiqiang insisted on acting as the case's defense attorney until the end. This is as far as I am acquainted with Xia Lin. He was one of the earliest legal associates that I have worked with, he was not a primary defense attorney, and he left the position midway through the case.

When Xia Lin was arrested, I immediately connected the incident to his role in Guo Yushan's case. I was relieved to hear of Guo's release, thinking that this could indicate that Xia's sentence would not be too severe. However, Chinese politics and rule of law do not follow any logical reasoning, and my analysis was once again proven wrong. Xia Lin received a harsh verdict and an unjustifiable one.
Xia's case has at least several reasons for concern.

He was accused of failing to repay his loans on time. The party that offered him the loan should be the litigant in this kind of civil dispute. From what I have learned from other lawyers, including Pu Zhiqiang, Xia Lin's loan was not due and there were no civil lawsuits being filed. Instead of treating the case as a civil suit, the Public Security Bureau arrested and charged him for fraud. This approach violated protocol and was illegal. It reminded me of the time when I was taken away at the Beijing Capital International Airport in 2011. The Public Security Bureau accused me of tax-related crimes and charges were made against the company that I served.

The execution of the entire arrest, investigation and trial process was illegal under Chinese law. There was no clear conclusion to the case and they failed to provide any presentable evidence. Even if I did not understand Xia Lin's case completely, I am convinced of, and can relate to, the violations of procedure that he experienced.

The Chinese judicial system has never been independent and will never become independent. The Chinese political regime is afraid of discussing this topic and acknowledging that they refuse judicial independence. It is only a tool that operates under the Communist Party's directives. The country's rule of law has never fulfilled its responsibility to serve justice. Given such conditions, all verdicts under such a system are unfair by nature. Without a platform for debate, information disclosure, and transparency for the nature of evidence in trial, we can only presume that these judgments are unfair.

The judicial system is obligated to prove that it is fair and just. As citizens -- or even a lesser existence without the right to elections -- we are owed the right to a fair trial. If the courts fail to prove that it is fair, then it should be presumed unfair. Xia Lin's sentence is no exception. I find it absurd that he was sentenced to 12 years for a loan dispute. This shows that China manifests significant discrepancies on its treatment of justice issues and on its parameters for criminality. Xia Lin is not a corrupt official who embezzled public funds. His fault, if any, related to a private loan dispute.

Further, we cannot separate the harsh sentence from his longtime concern for human rights. If one person is treated unfairly in our society, the whole world dulls in color.

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SHAKIR MIR - It’s Time to Bring Kashmir’s ‘Miserable Guillotine’ Out from the Shadows

When the struggle against the tormentor becomes a torment itself, it is imperative to speak out.

Srinagar: On a warm morning a few weeks ago, the city was uncharacteristically serene. The previous night’s protests had died down, giving way to a tranquil dawn. But outside my home in an old part of town, a loud bang woke me up. I thrust my head out, eyes half-closed with sleep. A knot of young men, their heads and faces wrapped in cloth, had gathered around a grocery store whose owner had been tending to a line of customers. In a flash, one of the men lifted a thick lathi into the air and brought it down with full force. It struck hard. The first blow was furious, as was every blow after.

The reason? By opening his shop, the grocer had defied the state of collective defiance in the Valley. His act was seen as an affront to those who willingly incurred losses, inflicting harm on themselves in the hope that it would push India into giving up Kashmir. From a distance, I saw his wife running towards him. Sobbing, she pleaded for mercy with the assailants before herself passing out. The men left. The neighbourhood women eased her into their arms, offering her water, while the men watched impotently, muttering curses between their teeth.

For over two months, the Valley of Kashmir has been convulsed by chaos. The trigger was the death of a popular militant leader. Though it is said that he had not mounted a single attack, the purpose of his killing is being questioned. He had been part of a media blitz for over a year, yet the security forces never sought to close in on him. The month before he was killed, he released two back-t-back video messages. In one, he aspires to carve Kashmir into an Islamic Caliphate and in the other, he promises attacks in case Jammu and Kashmir policemen don’t come over to his side.

Whatever the reason, the decision to kill Wani turned out to be a terrible error of judgment. It mobilised thousands and thousands of people, spurring both peaceful protests and widespread instances of rioting – leading to the death of over 80 people, and injuries to 12,000, of which more than 5,000 are police and CRPF personnel.

The government is facing protests of the kind it does not know how to bottle. In trying to, it ended up committing terrible acts of brutality upon the civilian population using pump action guns, firearms, clubs and what have you. But then, there is a reason why I began my essay with an incident so out of keeping with events as we know them.

A few days ago, Hurriyat leader Syed Ali Geelani reiterated his message that azadi was round the corner. He asked people to keep steadfast and persevere until it drew nearer and nearer. The more roads we fill, the more rocks we hurl, the closer it is getting.

But is it? On the contrary, we have embarked upon a great slide into a dead-end and azadi is yet to show up across the horizon. It hasn’t and in fact, never will. Not at least till another cataclysmic event embroils South Asia, dismembering the powerful nation states of today, leaving a fertile ground for smaller states to seek their separate nationhood. Britain did not relinquish control over India until it felt the crippling pain of World War II – never mind how “steadfast” was India’s struggle for freedom.

The current groundswell in Kashmir is spontaneous. There can be no two views about this. Separatist leaders have wielded formidable influence but they can do so only as long as they don’t stop mouthing platitudes that are palatable to a large section of the pubic. For instance, if the Hurriyat even tinkers with its protest calendars – to make them more flexible for daily wagers and businesses, perhaps – protesters will cut them down to size. That is perhaps why even on Eid, thecompendium of hartals followed the same course as on other days.

Spectre of public fatigue
The truth is that even the separatists are caught between a rock and a hard place. On the one hand, they cannot show so much as the merest sign of exhaustion. On the other, the spectre of public fatigue has risen all around them. The craving for a normal life is beginning to take hold among a cross-section of people as they come to terms with the futility of self-harm. Anger against India is fine. Nursing dreams of azadi is too. But how long can one do so at the altar of one’s own livelihood?

The police will succeed in breaking the cycle of violence. They did so in 2010, allowing the anger to dissipate, rather slide, beneath an illusion of normalcy – only to turn effervescent again and re-emerge out through the cracks, drowning Kashmir afresh. All it needed was a trigger and there were always plenty of those.

The fatigue couldn’t be more apparent when recently, despite announcing that fruit growers have sworn allegiance to the Hurriyat and are ready to bear losses, it suddenly turned out that 8876 metric tons of fruit had been hauled off in 953 truckloads outside the state in the first half of August alone. There is no telling what mark it touched thereafter.

The separatists have channelised public anguish in a direction into which it is destined to peter out. Had it not been so, the situation of the 1990s would have reigned till today. The violence that flared in 2008 and 2010 would not have ended either. This is not because fellow Kashmiris are prone towards treachery or that their conscience is shallow but because human beings are hardwired to not want to live by violence for too long. The bedrock of the secessionist movement has always been the angst stemming from atrocities Indian soldiers commit. When the excesses halt, so does the angst and every other consequence it had branched off into. The movement is intrinsically unsustainable once the dynamic of the “oppressive military presence” is taken out of the equation.

A case in point is what happened on August 29, when the authorities lifted curfew for the first time since it was imposed on July 8. The response surprised everyone. Besides the re-eruption of protests across Kashmir, people came out in hordes in those areas which saw incredibly lower levels of violence – such as Srinagar. Traffic trickled past the streets once again and store owners lifted their shutters. By evening, the situation had all reversed. Frequent mob attacks coerced people into scaling back. So scandalised was Geelani by what had happened, he openly warned shopkeepers the next day that if they acted “traitorous”, they would be “wiped out like straw.”

In one fell swoop, the ageing leader also alienated thousands of taxi drivers and auto-wallas when he accused them of acting on India’s behest and receiving bounty for taking out their vehicles to commit an act no less sinful than scraping together a living.

I asked an ardent pro-azadi friend to show me this stash of money which the ‘deviant’ and ‘corrupt’ taxi drivers were drawing cash from. “I will tell a couple of auto-walla acquaintances so that they don’t have to starve,” I told him, tongue firmly in cheek. He smote his brows together before mumbling a few unintelligible words and leaving in a huff. I smiled inwardly, both at his naivety and the utter irony of the moment.

For India, Kashmiri protestors can only be provocateurs driven by Pakistan and Hurriyat to instigate trouble. For their part, the Hurriyat see ordinary Kashmiris who are desperate to make a living in trying times as “Indian agents” – entrusted by Delhi to “derail the movement.” Both sides see events though their own black and white vision, overlooking the real people out there with aspirations spanning a million shades of gray... read more: 

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Praveen Swami - The new language of rage ...