On The Precarious Foundations Of Khilafat Movement

Every child in India learns about the Caliphate from the Khilafat movement which undeniably is an integral part of freedom struggles in subcontinent. Mr. Gandhi's decision to undertake and to integrate both non-cooperation movement and Khilafat movement in the 1920, had enemies and friends from the day one onwards. Khilafat movement was essentially a political protest campaign launched with the aim of influencing the British government to protect the Caliphate of Istanbul from the repercussions of World War I.

Caliphate as an institution began with Muhammad’s disciple Abu Bakr. Khalifa was supposed to be the head of the entire community of Muslim faithful (the ummah). Over the centuries, from Abu Bakr till 20th century, the title of Caliph passed through different head, empires and dynasties. The Ottoman rulers began to claim Caliphal authority only after the Ottoman Empire defeated the Mamluk Sultanate in 1517 and took control of most Arab lands, during the reign of Selim I.[1] The last Abbasid Caliph at Cairo, al-Mutawakkil III, was taken into custody and was transported to Constantinople, where he reportedly delivered the symbols of Caliphate to Selim I.[2] A brief overview of historical caliphal authority asserts the fact that it remained with those who had courage and capability to claim it. Ottoman caliphate was one in this list.

It was to protect this Ottoman caliphate that Mohammad Ali and Maulana Shaukat Ali (Known as Ali brothers) with other prominent Muslim league leader joined together to form the All India Khilafat Committee. They aimed to build political unity amongst Muslims and use their influence to protect the caliphate. In 1920, they published the Khilafat Manifesto, which called upon the British to protect the caliphate and for Indian Muslims to unite and hold the British accountable for this purpose.[3] While this endeavour is justified as a genuine attempt to protect the head of the Ummah by the members of it. It chooses to ignore a unique position of Muslims in India, to be accurate, those who were the subjects of erstwhile Mughal empire. To understand this unique position one should start from an important document formulated during the reign of Mughal emperor Akbar The Great.

In 1579 under Akbar's rule, Abul Fazal engineered a document called theologians declaration (mazhar) which declared 'Abu'l – Fath Jalal Al-Din Muhammad Akbar' as Padshah-i-Islam and Sultan-i-Adil, providing him authority over Mujtahid (person qualified to exercise Ijtihad) and over Ijtihad (providing legal interpretation on Islam). This unique endeavour made Akbar theologically capable of selecting among the ijtihad, one which benefits the world (essentially one which benefits him) and make decisions and interpretations based on his rational thought without coming in conflict with scripture. It was interesting at the moment, as this went against some of the prominent systems of thoughts in Islam (such as that of Al-Ghazali) which understood 'gates of ijtihad' as being closed, i.e. no one could engage in this act any more. Thus Akbar placed himself as Khalifa and above even Khalifa in certain aspects.

While these are theological, the practical implications were, it made Akbar and his subjects free from the theological authority of the Khalifa. making the Mughal emperors Khalifas for their Muslim subjects. Thus the identification of Ottoman Caliphate as the head of Muslims community in subcontinent would be theoretically wrong position to take up. If Muslims in India had to protect their caliphate (one they belonged to) they should have had a Khilafat movement when last Mughal emperor Bahadur Shah II was exiled to Burma by the British.  Khilafat movement obviously did not take into account these issue while making an attempt to unite the Muslims in the name of ummah. Most probably they were unaware of this position established by Akbar and held by Mughal emperors. Looking back guided with these documents, Khilafat Movement, in it's theoretical base, appears to be shaky and misguided.

References

[1] Thompson, J (2008) A History of Egypt, AUC Press.

[2] M. Pitman, Paul (1987). The Rise of the Turks and the Ottoman Empire (Excerpted from Turkey: A Country Study). Sam Houston State University. Retrieved 14 December 2013.

[3] Minault, Gail (1982) The Khilafat Movement: Religious Symbolism and Political Mobilization in India. Columbia University Press.

Right To Information Act: A Case for amendment

It was on June 3rd that Central Information Commission (CIC) has ruled that political parties should be brought within the ambit of the Right to Information Act. In the rationale that CIC provided for this peculiar ruling it argued that political parties "have been substantially financed by the Central government and, therefore, they are held to be public authorities under Section 2(h) of the RTI Act.”

It continues to argue that “The criticality of the role being played by these political parties in our democratic set-up and the nature of duties performed by them also point towards their public character, bringing them in the ambit of Section 2(h). The constitutional and legal provisions discussed herein above also point towards their character as public authorities.’’

It seems that two major points that are being raised by CIC in order to bring political parties under the purview of RTI can be enumerated as "substantially financed by the Central government" and their role in political structure of this country, which according to CIC makes political parties "public authorities".

To reach any conclusion of our own, one has to dwell into these claims. Let us be clear that political parties are not government department or part of it. In legal term they are completely separate from the state structure.

The financial support that CIC refers to mostly come as the ad spaces that government provides to different parties in order to ensure that electorate get to know the policies proposed by each parties. A noble attempt indeed in a country where government machinery still remains much more widespread than other private actors.

Now coming to the transparency part, as per the existing legal structure it is mandatory for all political parties to open up their accounts before Income Tax department and the Election Commission. No one can deny the fact that any citizen of this country can avail these information from the said organisation through RTI. If these organisation feel that it requires more information regarding financial situation from political parties it can call upon them to provide such information. Political parties are legally bound to produce such information before Income Tax Department or Election Commission.

Another point that CIC raises is the nature of political parties as 'public authority'. Public authority can be identified as "Any authority which has a legal mandate to govern, administrate a part or aspect of public life, such as all branches of the executive power of a state, province, municipality etc." As per this it is difficult to identify the political parties as public authority. Political parties does not govern any aspect of public life, they can never impose their will upon the public or are legally not part of any executive. There is wall between an individual working as a part of public authority (such as CM, PM etc) or as the member of a political party. A political party is a voluntary association of citizens who joined together based on certain ideology and works within a particular structure. Therefore undeniably all political parties are accountable to its members. This does not mean that any independent individual with no affiliation can be allowed to access such information. 

All political parties have their own strategies, criteria to decide in times of disagreement and organisational policies, which are their own internal matters. In any game situation it would be folly to let the opposition know your strategy. A system based on party politics can be seen as a situation of continues game where one should allow parties to have their privacy. At this point it can be conceded that CIC is within its legal rights to include political parties into public authority as the definition of public authority in RTI act allows for using the campaign spaces provide by government to make this declaration. If CIC tries to interfere in the internal matters using such excuses there is a chance that political parties might disavow the ad spaces provided by the government with citizens of this country ending up in the loosing side.

On Human Rights & Capital Punishment

Substantial number of countries all over the world as of now does not have capital punishment as part of their legal system, the highest punishment for any crimes committed in these countries is determined to be life imprisonment. A fact that was able to provide different movements and organisation all around the world confidence to demand the cessation of capital punishment at a global level. Such movements at international and national levels were able to gather popularity and support enough to make themselves heard in the political sphere of the countries which still uphold capital punishment. India is one such country that still maintains capital punishment as part of its legal system, even though courts are being directed by the supreme court to pronounce such punishment in 'rarest of the rare' case. To the surprise of many, the phrase 'rarest of the rare' which can take a human life is not defined adequately. Debates and deliberation in-order to bring forward an adequate understanding of 'rarest of the rare' are raging in India along with the movements which ask for the total ban on capital punishment. Arguments are being formulated and presented in the public sphere by different actors both for and against these positions.

One of the oft used argument in support of 'right to life' points towards the possibility of fault with the evidence available with the courts of law while passing judgements and emergence of certain unknown aspects later, which might prove the convict to be innocent or to a realization that his/her part in the incident is not as large as believed to be earlier. When such a scenario emerges if the court wants to rethink its judgement it would not be possible if the death penalty has been implemented. Even though this position does require adequate consideration this particular note does not attempt to engage with it. Rather attempt here is to enunciate the relationship between the concept of human rights and capital punishment.

Human rights can be understood as those inalienable rights which every human individual possess by the virtue of being a member of human species. As human rights are inalienable, under no circumstance can it be violated. It stands different in nature from privileged rights (such as the rights emerging from citizenship) which requires the individuals to perform certain function or to occupy certain status in order to be able to avail them. Right to life and individual sovereignty over one's own life stand at the centre of liberal values. Right to life finds itself as most prominent among human rights. Article 3 of 1948 Universal Declaration of Human Rights, adopted by the United Nations General Assembly declares that everyone has the 'right to life'. If we subscribe to the conception of human rights which include 'right to life' then we have to encounter an obvious contradiction that stares at us, the fact of existence of the death penalty in a number of countries in the world (including India).

These being said it becomes imperative to make an attempt to understand the principle on which a justification for capital punishment is made possible. One way to conceptualize it is through an understanding of retributive justice system. In a retributive justice system, those who commit a certain set of crimes can be given capital punishment. Such a framework takes away from the 'right to life' the status of being a human right and reduces it to a privilege. The merit of this principle rest with the relief that it provides. It is capable of satisfying those who want certain rights to be recognized as a human right but still want to maintain capital punishment. It leads to the establishment a conception of human right without 'right to life' being part of it.

Another possibility would be to bring in a socially constructed definition of human being, that is, to deny and de-legitimize the identification of a human being as such just by the virtue of belonging to the human species but to bring in other considerations (such as not committing certain actions which society see as inhuman). Unlike the former position where social understanding of the human being is same as the biological one, here the very idea of being human stripped off its biological notion. Thus it makes it impossible to have any human rights as defined at the beginning of this note.

The conclusion that can be derived from the discussion above would be that at a conceptual level those countries which still maintain capital punishment as a part of their justice system does not conceptually recognize 'right to life' as human right. At this juncture, doubt can be raised about the existence of the human rights itself but let us not forget there is one right which even the most cruel tyrant of our time will claim to have provided to even his most hated enemy, that is, the right to fair trial. There is not even a single country in this world that would not argue that it provided everyone within its jurisdiction with a fair trail. Thus even though there is no consensus among the countries of the world with respect to the 'right to life' as a human right, the fair trail as an ideal concept which requires to be implemented globally is accepted. Making it probably the only human right that no one dares to question.

On The Limits Of Liberal Democracy

Liberal democracy can be identified as a form of government which is characterized by fair, free, and competitive elections between multiple political organization, a separation of powers into different branches of government with checks and balances put into place, the existence and implementation of rule of law in everyday life and the protection of human rights and civil liberties for all people.

The end of cold war and demise of communist governments through out the world has made liberal democracy capable to dominate the arena of political formation. It has been presented as the only alternative available in the present time with Fukuyama coming forward with grand declaration like that of the ‘end of history’. Even though we find liberal democracy to be the natural order of the day it is not without certain inherent tensions. These tensions can be found in the very formulation of liberal democracy.

Chantal Mouffe identifies liberal democracy as composed of or the result of the uneasy compromise among the two major traditions, that of, the liberal tradition constituted by the rule of law, the defence of human rights and the respect of individual liberty and the democratic tradition whose main ideas are those of equality, identity between governing and governed and popular sovereignty. It is possible to identify the issues faced by liberal democracy as those presented by tension inherent in the formulation of its framework.

Authors such as Benjamin Constant has noted the tension that existed between the tradition associated with Locke, which gives greater weight to "the liberties of the moderns",which includes, freedom of thought and conscience, certain basic rights of the person and of property and the rule of law and the tradition associated with Rousseau, which gives greater weight to the "liberties of the ancients", which includes, the equal political liberties and the values of public life. This tension has been carried over through out the discussions and deliberation on the issues regarding the liberal democratic regimes with some liberals such as F.A Hayek arguing that democracy is an instrument, a means for safeguarding internal peace and individual freedom.

This being the first and foremost role of the democracy, liberals asserts that it can and should be discarded if it endangers the liberal institutions. On a different note but still insisting upon the supremacy of the liberal institution other liberals have undertook a line of argument that people deciding in a rational manner, could not go against rights and liberties and, if they happened to do so, their verdict should not be accepted as legitimate. We find from the other side, staunch democrats has been keen to dismiss liberal institutions as ‘bourgeois formal liberties’ and to fight for their replacement by direct forms of democracy in which the will of the people could be expressed without hindrances. Democratic regimes establishes itself on the base of a ‘demos’ the people who form the polity. This ‘demos’ formed not on the basis of humanity but on the idea of commonality among the people who comes to form the polity. Therefore a certain conception of justice common to all the member is an imperative in the formulation and maintenance of democratic institutions. Thus dichotomy between the liberal emphasis on individual rights and liberties and democratic emphasis on collective formation and will-formation underlies the institution of liberal democracy.

Even though it has been accepted both in theory and practice that in a liberal democratic structure that it is legitimate to establish limits to popular sovereignty in the name of liberty. These limits are usually engraved to ensure that the established structures respects and protects the human rights. These human rights are defined and articulated on the basis of the existing dominant ideology therefore are subjected to change. Thus a clear case has been made for ensuring the existence of the limits to popular sovereignty but the nature and scope of these limits are flexible. On one side this structure serves to protect individual rights, on the other side, those rights provide the necessary conditions for the exercise of popular sovereignty. These can be understood as the paradox presented by the liberal democracies.

Freedom of Speech: Indian and US Constitutional Law

The debate over the freedom of speech and expression has become almost a daily incident in the popular media, academic circles or general conversation of citizens all over the world. India is no exception to this trend, rather it is exhorted here with unparalleled vigour among the general public. In such conversations in India, at least, United States of America is enthralled as the land of absolute free speech where the restriction such as we see in India does not come into picture.

These being said one must indulge in identifying certain important fact and concepts before embarking on an attempt to write about freedom of speech and expression as they presents themselves in Indian and US constitutional law.

It should be remembered that fundamental rights are different from the concept of human rights. Human rights are those inalienable right which every individual possess by the virtue of being a member of human species. As human rights are inalienable under no circumstance can it be violated. On the other hand fundamental rights are the gift of the state to its citizens. They cease to exists with the termination of citizenship of an individual by the state. Being a gift of the state to its citizens the constitution of a state is well within its rights to impose restriction on it. Like in Indian constitution the article regarding “freedom of speech and expression” finds its place among the fundamental rights as article 19(1)A along with certain restrictions on the said fundamental right. 

If such restrictions are not placed in the constitution itself, it remains under the authority of the courts (guardians of constitution) which are equipped with the ability to interpret the constitution to impose such restrictions on the fundamental rights as and when it seems to be in need of restrictions  after due consideration. In US constitutional law the authority to impose restrictions on fundamental rights rests with the US congress.

In Gitlow v. New York, (268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925) Supreme Court upholding the constitutionality of criminal anarchy statutes, it advocated that:

"It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom"

Court continues:

"That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question."

Even when subsequently it tone down its position on restrictions placed on free speech, US court maintained that states may prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.

The conclusion that emerged out of this was that the legislature may decide that certain speech can be prohibited. Those legislative decisions will be upheld if not unreasonable and will be enforceable rule punishable under law. Thus the state is provided with the authority to restrict the rights through evoking the concept of police power. This leads to a precarious situation where legislature can make laws to restrict rights but court can accept or struck in down if it identifies it to be reasonable or unreasonable respectively.

On the other hand in Indian by inscribing the list of reasonable restrictions in the constitution itself. Constitution limits the power that can be exerted by all three wings of government (Executive, Legislature and Judiciary). The legislature can only make laws in so far as it comes under the provisions provided in the constitution and supreme court does not have to be too creative as in US rather it should only consider whether the law passed by the legislature are in line with articles in Indian constitution.