The Case for KOHINOOR

The statement made in the Supreme Court of India on the Kohinoor diamond is astonishing and is contrary both to history and law.
Kohinoor was part of loot not “gift” and the very circumstances surrounding the Last Treaty of Lahore by which it is claimed that the diamond was ceded to the Queen of Victoria – the Last Treaty of Lahore was signed immediately after the Second Anglo-Sikh War and Duleep Singh who handed over the diamond was but a child – showed that the “gift” was anything but voluntary! And the law too permits the making and enforcing of the claim for return of Kohinoor to India.
In Resolution 3187 of 1973 The General Assembly, deploring removal during colonial or foreign occupation of objects d art, declared that  “the prompt restitution to a country of its objets d’art, monuments, pieces, manuscripts and documents […], is calculated to strengthen international co-operation inasmuch as it constitutes just reparation for damage done”.
The Resolution recognises the customary rule of prohibition against the use of force recognised in several instruments of international law commencing from the Final Act of the Congress of Vienna of 1815 to the Hague Conventions, UN Charter and the UNESCO Convention of 1970 and subsequent developments.
Opponents of the restoration of cultural artefacts rely on the fact that East India Company was a private corporation and India was not a colony of the British at the relevant time. They also rely on the principle of inter-temporal law according to which the issues should be assessed not on the basis of existing international rules but law in force at the relevant time.
Neither submission can prevail.

The site of the Parliament of UK has a section Parliament and Empire. It records that East India Company Loan Act and the East India Company Regulating Act made it possible for the government in Britain o extend a loan to the Company in exchange for recognition of the British state’s ultimate authority over the Indian territories.It leased to the Company continued political control of its Indian territory in exchange for a payment of £40,000 every two years. It also established the post of governor-general who, with a council of four members, was to have overall authority over the Company’s territories. More government control came with the India Act of 1784, under Prime Minister William Pitt. This created a committee of six government appointees, known as the Board of Control, who were to monitor and direct the Company’s policies. The government was also to have the final decision on the Company’s nominations for its officials in India. This and a further new law passed in 1786 greatly increased the authority of the governor-general over other Company officials. The ultimate control therefore lay with the government itself and liability cannot be disclaimed on the ground that East India Company, which in any event was established by Royal Charter, was merely a private company.

The inter-temporal principle cannot apply to human rights obligations. Cultural artefacts are part of the nation’s heritage and constitute its identity and the right to this cultural patrimony both tangible and intangible is basic to human dignity and indispensable for social and cultural progress. The very moral dimension of it makes it a human right. The instruments dealing with this subject, therefore, could not be said to define the norm but merely declared what already existed as an autonomous and binding principle.

It is sometimes also said that there can be competing claims by the Iranians or Afghans whose rulers held the diamond at different times. The diamond however came from the Kollur mine in Andhra Pradesh, India which was the only one to produce it at that time. As right to cultural artefacts is an imprescriptible human right and there is an obligation to return on all who may have acquired this physical cultural artefact by force the diamond has to eventually return to Indian territory no matter how many hands it may have passed through. Such artefacts are not considered private property and there is an obligation to preserve them within the territory to which they belong.

Interestingly the statement reportedly made by  in the Supreme Court was “If we claim our treasures like Kohinoor from other countries, every other nation will start claiming their items from us. There will be nothing left in our museums.” Ironically David Cameroon had used almost the same words when he came to India in 2010; he said,”If you say yes to one you suddenly find the British Museum would be empty. I am afraid to say, it is going to have to stay put”. 

It is not a question of which museum gets empty. Its the issue as to which museum is the right custodian of the artefact. And Kohinoor belongs to India.

 

KANHAIYA – THE INTELLECTUAL

“No intellectual,” said Kanhaiya “is supporting the Modi regime.” I will not engage myself in any defending Modi (as he and his party are well equipped for the purpose) but will concentrate instead on the use of the expression “intellectual” by Kanhaiya.

There are two reasons for this exercise. Firstly there is a snobbishness in the comment which is in fact anti-intellectual and secondly the speech given by him displayed no critical nor a rational spirit of enquiry which is actually associated with intellectualism.

Kanhaiya ignores the difference between an intelligentsia and an intellectual. The former is a social class organised on the basis of shared beliefs and will include communists, socialists, conservatives and of course Kanhaiya’s favourite fascists. Disagreement with an alternative point of view will not make the holder of that point of view any less an intellectual. No one should know this better than Kanhaiya himself but his comment suggests he does not regard anyone not sharing his point of view to be an intellectual. This itself shows disregard of liberal values which he claims to espouse and a totalitarianism which he claims to oppose.

Kanhaiya makes a distinction between “emergency” and “fascism”which shows knowledge neither of history nor ideology.

Emergency, he says, is “goondaism of only one party” while “fascism” entails “using of state machinery for goondaism.” “State machinery” is ordained under the Constitution and Emergency was declared invoking Article 352 of the Constitution and the excesses of the Emergency were those of the government  which claimed to be exercising powers not of a party but of the state machinery as ordained by the Constitution. This was the use of state machinery for goondaism  which is how he describes (again wrongly) “fascism”.

Fascism, used in the sense Kanhaiya understands it, is not descriptive of any ideology but merely a pejorative term of abuse. Common ownership of means of production (envisaged by Communism) may be described by its critics as “goondaism” too and the subjective preference of one ideology over the other shows complete absence of any rational spirit of enquiry which is the hallmark of any intellectual. Is this not acting like a political commissar or an ideological administrator to control thought by using abuse not critical enquiry to deify one’s own and deride the other’s point of view? Is this not the “azadi” to impose one point of view over all others? Will this be “azadi” at all?

Significantly Kanhaiya impliedly concedes intellectuals continue to exist in India and express dissent and disapproval of what they find amiss in the system. How does this compare with Red Guards, the Chinese para-militaries who purged the country of those politically dangerous to Mao? Or the Armenian Genocide by the Ottoman Government. Or Lenin’s contempt for the intelligentsia apparent in his infamous comment “we have completed no academies.” Or again the preference of “bourgeois science” over the “proletarian science” in the old Soviet Union?

Yes, as Kanhaiya mentions, “it is important to understand history before we reach any kind of conclusion.” It is however obvious from Kanhaiya’s speech the examples he gave and the relevant examples which he ignored that he does not practice what he preaches and also knows little about what he chooses to preach!

AZADI!!!!! Really???

Should those clamouring for “Azadi” become free I will not be able to comment. But I am free today to conjecture the consequences…
Freedom to disfigure the country- Azadi for Kashmir
Freedom to disable the law – Azadi from Sedition
Freedom to distort the facts – “Murder” of Rohith
Freedom to disparage the critics – “Persecution” of Nivedita Menon
Freedom to debase the opponents – “Half Pants”, “Hit Jobs” & “Reactionaries”
Freedom from discipline – “Curbs” on Universities
Freedom to disenfranchise difference – Its “fascism”
Freedom to dominate, dissimulating enslavement – Invoking “minorities” & “dalits”
Freedom to deliver the last word – we “think” you “hate”
Freedom to dismantle while pretending defense – In the name of Constitution
Freedom to Doublethink freedom
Freedom to end all freedom itself!

 

AZADI AZADI AZADI….