COPY MEMO HANDED TO THE UN HCHR 13 MARCH 2008.
Louise Arbour,
UN High Commissioner for Human Rights,
Office of the High Commissioner for Human Rights
Palais des Nations
CH-1211 Geneva 10, Switzerland.
13 March 2008
Dear High Commissioner,
Re: The UN and India in the context of the Sikh Nation:
An appeal for Action
We respectfully submit this Memorandum by way of an appeal to you and the institutions of the UN, to take up the pressing human rights concerns of the Sikh Nation and to take effective action so as to deliver justice to the Sikhs whose individual and collective human rights have so brutally been denied by India. There a number of specific matters in respect of which we believe your intervention and influence will have a positive bearing on upholding these key rights and punishing those who have been responsible for gross human rights violations in the recent past.
We ask no more than the implementation of internationally accepted standards of civilised conduct and the basic provisions of international humanitarian law, both of which have been breached with impunity by a UN member state. India has, since 1947 but especially since the outrageous and bloody attack on the Golden Temple in Amritsar in June 1984, systematically targeted one of the most distinctive and progressive nations of the world simply because it sought, through exclusively peaceful and democratic means, to secure its right of self-determination. International law as well as the UN and its human rights mechanisms are now the means by which we seek a resolution to the ongoing Indo-Sikh conflict, just as the UN has been able to make a positive contribution to resolving other conflicts across the world.
The Sikhs as a Nation
Sikhism, the youngest and fifth largest of the major world faiths was born in Punjab in 1469. The Sikhs, with a unique spiritual and temporal philosophy (the miri piri principle), together with a distinct linguistic and cultural tradition, developed in to an indigenous, freedom loving sovereign nation that first secured political power in the form of an independent state in 1710, after suffering centuries of foreign invasions and alien domination. The larger sovereign Sikh state established in 1799 was recognised by all the world powers as a subject of international law and was party to several Treaties with the British. That the Sikhs satisfy the definition of a people or a nation is beyond doubt and no sensible commentator has ever attempted to suggest otherwise.
As well as being recognised as a people or a nation by others the Sikhs themselves see their nationhood as defining their own role within the community of nations. A powerful expression of this self-identification as a nation is apparent from the preamble of the historic ‘Anandpur Sahib Resolution’ of 1973 which became the basis of Sikh demands for autonomy in India until the escalation of Sikh demands following India’s military assault on the Golden Temple in Amritsar in June 1984. The Resolution was passed on 17 October 1973 by the Working Committee of the Shiromani Akali Dal (which was then recognized as the political voice of the Sikhs) reads:-
“Whereas the Sikhs of India are a historically recognised political nation ever since the inauguration of the Order of the Khalsa in the concluding year of the 17th century, and Whereas, this status of the Sikh nation has been internationally recognised and accepted by major powers of Europe and Asia, France, to wit, England, Italy, Russia, China, Tibet, Persia, Afghanistan, Nepal and the Company Bahadur, Fort William, Calcutta, till the middle of the 19th century, and again by the outgoing British and the Hindu Congress and the Muslim League of India in the middle of the 20th century,”
Whilst the Sikhs are clear about their nationhood, they find that it is denied by the Indian State and the Indian political class which are not prepared to allow the Sikhs anything akin to national rights. The Indian constitution even denies Sikhism separate recognition as a religion for legal purposes – an affront that is widely seen as a deliberate act of suppression of the Sikhs. Article 25 Indian Constitution reads as follows:
Article 25
Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law -
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II: In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly”
India's Supreme Court has recently expressly supported the rationale behind Article 25 and made it clear that the Indian legal system treats Sikhs as Hindus. Below is an extract from a 2005 Supreme Court judgment in the following case:
CASE NO.: Appeal (civil) 4730 of 1999 PETITIONER: Bal Patil & Anr.
RESPONDENT: Union of India & Ors.
DATE OF JUDGMENT: 08/08/2005
BENCH: Chief Justice of India,D. M. Dharmadhikari & P. K. Balasubramanyan
JUDGMENT:Dharmadhikari J.
The appellant is an organization representing a section of Jain community. It approached by writ petition the High Court of Bombay seeking issuance of a mandamus/direction to the Central Government to notify 'Jains' as a 'minority' community under section 2(c) of the National Commission for Minorities Act, 1992 (shortly referred to as the Act).
"The so-called minority communities like Sikhs and Jains were not
treated as national minorities at the time of framing the Constitution.
Sikhs and Jains, in fact, have throughout been treated as part of the
wider Hindu community which has different sects, sub-sects, faiths,
modes of worship and religious philosophies. In various codified
customary laws like Hindu Marriage Act, Hindu Succession Act, Hindu
Adoption and Maintenance Act and other laws of pre and post-
Constitution period, definition of 'Hindu' included all sects, sub-sects of
Hindu religions including Sikhs and Jains. "
The Sikhs unsurprisingly have never accepted India's constitution and have in fact endeavoured instead to secure their internationally recognised right to national self determination. This remains the Sikh goal which today means the peaceful and democratic creation of a sovereign independent state of Khalistan.
India's denial of the Sikh Nation's Right to self-Determination
The Sikhs have, since 1947, made substantial efforts aimed at securing ‘internal self-determination’ within India. These efforts (as detailed below) have been met with increasingly hostile and aggressive policies which have ultimately resulted in state oppression of genocidal proportions. Key aspects of this struggle are:-
· 1947 and India's broken promises to the Sikhs. India’s founding fathers had given numerous solemn promises that their freedom and dignity would be safeguarded. Jawahar Lal Nehru had said that “…the brave Sikhs of Punjab are entitled to special consideration. I see nothing wrong in an area set up in the north of India wherein the Sikhs can also experience the glow of freedom” (Lahore Bulletin, 9th January 1930). These promises were conveniently forgotten after the British left and the Sikhs were dismissively told by the same Nehru that the “circumstances had now changed”.
· Rejection of India's centralised Constitution by the Sikhs. S. Kapur Singh MP speaking in the Indian Parliament on 6th September, I966 described how the Sikhs had never accepted in the Indian Constitution. He told of how Mahatma Gandhi and Pandit Jawaharlal Nehru gave the Sikhs a solemn assurance that after India achieves political freedom no Constitution shall be framed by the majority community unless it is freely acceptable to the Sikhs. This promise was then reduced into a formal Policy Resolution of the All India Congress Committee. Afterwards, this Policy Resolution was repeatedly reiterated, officially and semi-officially, throughout the period up to August 1947. When in 1950, the Constitution Act of India was enacted and the Constitution failed to deliver any safeguards or political rights for the Sikhs as a people or nation, the accredited representatives of the Sikhs the Shiromani Akali Dal declared vehemently and unambiguously in the Constituent Assembly that: “The Sikhs do not accept this Constitution: the Sikhs reject this Constitution Act”. The spokesmen declined to append their signatures to the Constitution Act as a token of this clear and irrevocable rejection. The Sikhs as a people have never accepted that constitution.
· The Anandpur Sahib Resolution. Passed by the Working Committee of the Shiromani Akali Dal, Ludhiana, Punjab, October 17, 1973 set out the basis on which the Sikhs were prepared to accept a political union within India, as a federal state:
“The Central Government should confine its authority only to defense, foreign affairs, general communications and currency and rest of the subjects should be handed over to the States and in this case particularly to Punjab”.
This demand for internal self-determination was pursued through decades of peaceful protest and attempts at negotiation with the central government. The demands were never seriously considered and appear now, given the recent history of the conflict between the Sikhs and India, to be too little too late in any event.
· Natural resources. Over 70% of Punjab’s precious water resources are being appropriated by other states within India, without any payment or other consideration. As an overwhelmingly agrarian state which is suffering from acute water shortages (experts predict Punjab will become a desert within 20 years if current utilisation continues), the region and its people are being denied their own crucial natural resources. The appropriation is contrary not only to established riparian laws (the recipient states are non-riparian) but also a violation of the law of self-determination which provides that no people should be denied there natural resources. Recently, the Punjab state government passed the Punjab Termination of Agreements Bill 2004 in an unprecedented move to cancel all water ‘sharing’ arrangements imposed by the central government. The Central Government has sought to annul this move by seeking the Supreme Court's intervention (a decision may be given in April of this year), despite water resources being a state subject under Indian law; it is certain that the Indian Supreme court will set aside the action of the Punjab state government. The economic future of the Sikh homeland is being destroyed but their protests have not been heeded.
Declaration of Khalistan issued from the Akal Takht Sahib on 29th April 1986
The Sikhs have responded to India's brutal repression and its rejection of their attempts to secure 'internal self-determination' within India. The Sarbat Khalsa (national gathering of the Sikh nation) held at the Akal Takht Sahib in Amritsar on 26 January 1986 freely resolved that the establishment of an independent sovereign Sikh state was the only means of protecting Sikh national rights. This was the basis on which the leaders of the Sikh freedom movement declared independence by way of the Declaration of Khalistan issued from the Akal Takht Sahib on 29th April 1986.
India's Military Response to the Sikh Struggle for Self-determination
The Sikh leadership involved in making of the Declaration have been killed in fake encounters and the freedom movement has been suppressed by the use of force in a blatantly illegal manner. Senior Indian security officials openly defend that approach on the basis that the ‘niceties’ of international legal norms will not be allowed to get in the way of an overwhelming political imperative of crushing the separatists and their sympathisers.
Key aspects of the brutal oppression suffered by Sikhs in India over recent decade can be summarised as follows:-
· The Indian army’s full scale assault on the Golden Temple complex (including the destruction of the Akal Takht – the centre of Sikh sovereignty) and the killing of thousands of devotees in a notorious act of genocide and desecration which extended to 38 other major Sikh shrines in June 1984 (the media were banned from Punjab which was sealed off during the operation). The Sikh Reference Library housing irreplaceable items from Sikh heritage was deliberately torched by the army.
· The butchering of over 20,000 Sikhs across India in November 1984 in pogroms activated after the assignation of Indira Gandhi. That these pogroms were politically organised cannot be denied but despite many official enquiries, no political or other figure has been punished for these inhuman atrocities. India's top criminal investigation agency, the CBI, has recently attempted to close off any action against a key accused (Mr Sajjan Kumar, a top Congress party leader and someone who has been given numerous political positions since 1984) on the basis that there is no actionable evidence against him only to find that the international media has highlighted eye witnesses who have given public statements testifying to the active involvement of the accused and who are willing to testify in legal proceedings if the Indian authorities would only facilitate that).
· The ‘dirty war’ waged by security forces in Punjab since 1984 which has seen leaders of the Sikh freedom movement, their supporters and families killed off (or ‘disappeared’) in the tens of thousands, with their bodies being secretly cremated in order to hide evidence. The central government set up a massive fund to enable ‘rewards’ to be given to those who, by whatever means, eliminated. Human rights Watch issued a report in October 2007 entitled " Protecting the Killers: A Policy of Impunity in Punjab, India" which condemns India's policy of deliberately denying justice to the victims of systematic extra-judicial killings, torture and disappearances carried out by the state security forces. See http://www.hrw.org/english/docs/2007/10/18/india17103.htm
· The widespread use of torture and rape to terrorise Sikhs in to political submission.
· The enactment of ‘black laws’ ostensibly to deal with a terrorist threat but which were used to give the security forces complete impunity for their abuses – at one stage these measures included the suspension of the right to life.
· The elimination of many human rights protectors, including lawyers, who dared to speak out against the atrocities. A high profile example of this has been the elimination of Jaswant Singh Khalra who uncovered the Punjab Police's systematic secret cremations of thousands of Sikhs extra-judicially killed during the 1980s and 1990s. India's Human Rights Commission has rejected appeals to investigate those mass killings and punish the culprits.
· The criminalisation of all peaceful efforts to campaign for Sikh self-determination. Over recent years, hundreds of Sikh leaders and activists have been arrested and charged with sedition for simply calling for the Sikh self-determination by exclusively peaceful and democratic means. Legitimate, non-violent political action has been suppressed even though it is the implementation of international law that has been called for.
Respected international human rights organisations such as Amnesty International and Human Rights Watch, as well as the UN Special Rapporteur on Torture, have been banned from Punjab (and still are). Nevertheless witness testimony has allowed these groups to document the atrocities; even to this day their calls for appropriate legal action to be taken against the perpetrators of the atrocities are ignored by the Indian state and, as a result, the terror is maintained.
The UN, Self-Determination and India's Position.
The International Covenant on Civil and Political Rights 1966 was adopted and opened for signature, ratification and accession by UN General Assembly resolution 2200A (XXI) of 16 December 1966. The Covenant entered in to force on 23 March 1976. It provides that:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
The UN Human Rights Committee has stressed that the right of self-determination is absolutely fundamental to the protection of individual rights because:
“the right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants [the ICCPR and the ICESCR] and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.”
As you know, the right of self-determination is therefore considered, at the very highest levels of international law and affairs, as an essential condition in the protection of individual rights. The rationale for this is clear; if peoples (as a collective) are being subjected to oppression they are not in a position to have any of their individual rights protected. The experience of the Sikh Nation bears this out clearly and we call on the UN to take steps to safeguard the interests of the Sikhs in accordance with the UN's own prescriptions on fundamental human rights.
On ratifying the 1966 Covenants India made a Reservation [ UN Doc. ST/HR/5, 1987,9.] to the effect that the right of self determination pertains only to “peoples under foreign domination”; it is not relevant with regard to “sovereign independent States or to a section of a people or nation - which is the essence of national integrity”. India only made that Reservation on the basis that it was acknowledging that its position was at variance with the generally accepted view that self-determination in fact applies to ALL peoples. France, Germany and the Netherlands objected to the Reservation on the ground that self-determination applies to ALL peoples but India insisted on making that Reservation. Subsequently, the Human Rights Committee (the UN monitoring body in respect of the 1966 Covenants) stated in its 1997 review of India’s compliance [CCPR/C/79/ Add.81. 04/08/97] with Article 1 which deals with self-determination that it “invites the State party [India] to review these reservations and declarations with a view to withdrawing them, so as to ensure progress in the implementation of the rights …”
India has not made any such withdrawal and this is a major breach of its international obligations which the UN should tackle. It is only by correcting India's position on self-determination that the international community can help facilitate peaceful and democratic resolutions to the numerous national struggles which India has sought to militarily crush, whether it be the Sikhs, the Kashmiris, the Nagas, the Assamese, the Bodos or the many other ongoing conflict situations India is facing.
UN Intervention on behalf of the Sikhs
We submit that it is incumbent on the UN to take effective steps to tackle India on account of its substantial breach of international obligations and in relation to its oppression of the Sikhs. Only such an interventionist approach (ultimately backed by UN sanctions in case of default) can deter states which would otherwise believe that they are free to abuse human rights; the world has seen too many examples of the misery, destruction and injustice that can result.
Specifically, we would suggest that you consider the following steps:-
1. An outright rejection by the UN of India's efforts to secure a Permanent Seat on the UN security Council until India complies fully with its international human rights obligations and improves its appalling human rights record.
2. A UN demand that India withdraws unconditionally its repugnant 'Reservation' under which it has sought to exclude the international law of self-determination from applying to the nations currently located within India's borders. This is a flagrant violation of the spirit and letter of the 1966 UN Covenants on human rights and until such time as India complies with that demand Indian membership of UN human rights bodies should be suspended.
3. A UN enquiry in to the massive human rights violations suffered by the Sikhs since 1984. India has proved itself unwilling to deliver justice to the victims and to punish the guilty, despite overwhelming credible evidence of the atrocities. If India can be so bold as to deny the UN Special Rapporteur on Torture entry to Punjab, it is impossible to see how it can itself punish those guilty of rights violations. Time is fast running out for effective justice to be delivered - justice delayed is of course justice denied. The UN has taken steps of this nature in recent years in relation to other conflicts and this course of action would offer the Sikhs the only realistic prospect of securing justice.
4. A UN demand that India stops the criminalisation of those who advocate Sikh self-determination by peaceful and democratic means, in accordance with international law. Together with this the UN should require India to enter in to a meaningful dialogue with the Sikhs and eventually facilitate a UN sponsored plebiscite in Punjab so that the Sikhs can demonstrate to the international community their freely determined wishes. It is only by involving the UN that the Sikhs can have any confidence about the process of conflict resolution.
These steps would represent a true roadmap to bringing justice to the Sikh Nation. They would also contribute to equitably resolving India's ongoing conflicts with other national groups that threaten the stability of the region as a whole.
In order to assist the UN in taking forward consideration of these proposals we would be happy to meet with you and / or any UN human rights body and to work with you in order to achieve a lasting settlement of a conflict that has for too long been ignored by the international community.
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