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.

 

Mr Chidambaram’s “Polarisation”: Blame-Game & Half-Truths

The country, said Mr Chidambaram, is “most polarised” comparing it to the time of partition of the country.

The comment was seemingly uttered with a sense of dismay at what was perceived as a deteriorating situation in the country.

Lose comments deny dignity to serious concern. Mr Chidambaram’s comment is a case in point.

Polarisation is understood as extreme divergence in opinions with distance between the extreme points of view so large as to deny any possibility of convergence. One cannot, however, talk about “polarisation” without addressing the issue of freedom of speech.

A misuse of the freedom implicit in mischievousness, distortion or obscurantism closes door to dialogue frustrating the purpose of communication and contributing only to noise and not public discourse.

Then again, not every polarisation of views is bad. In dealing with the subject of polarisation, to make the discussion meaningful, one must specify the issues on which there is extreme disagreement and further consider whether disagreement on those issues can justify apprehension of a larger discord as can threaten cohesion in society.And in dealing with the latter both discord and justification need to be considered. An unjustified discord will create polarisation only to create disorder and law will have to intervene to clam down on it.

Mr Chidambaram addressed neither the issue of abuse of freedom of speech nor specify what issues he had in mind while commenting on polarisation and did not also dwell on the question whether disagreement on those issues is justified as to label the matter disagreed with dangerous.

The comment was only an appeal to emotion and is mere prejudice parading as fact.

The immediate context for the comment was the JNU controversy. JNU became controversial because of comments about “judicial killing” of proven terrorists and emphatic demands of “self-determination” of Kashmiris. The former means courts in India murder and latter questions the integration of Kashmir into India.hero even for students

Strangely Mr Chidambaram mentioned partition of the country not independence which accompanied it and framing of the Constitution which followed establishing rule of law in the country with courts as its guardian and Kashmir as part of its territory.

It were those wanting partition who demanded Kashmir and rejected secular foundation for the new state they created. Mr Chidambaram’s comment shows his affinity with this group rather than those who fought for and established an independent India.

If an Indian objects to secession and to the undermining of a system entrenched constitutionally it is the point of view that the Indian opposes which is dangerous. As wide a disagreement as possible with this view is imperative for the integrity of the country. And using this as an instance of “polarisation” is mischievous.

Similarly if “beef” moves from being food to political weapon consumed not to satiate physiological need but make a political point the intent clearly being to spite another not satisfy oneself vociferous opposition is not only important but necessary for such hate will  feed itself till it consumes the country. Why no comment on celebratory beef binging? Is polarisation bad only if it entails a disagreement with your point of view?

Who made HCU debate Dalit issue? Afzal was a hero even for students of HCU and judicial killing flavour of the debate. Is this a discipline issue or Dalit issue?

And while the Asura tribe, constituting a minuscule part of the population may celebrate Mahishahsura, The Times of India reported, “Today, few Asurs, especially the younger generation, know who Mahishasura was and what he means to their community and the activists hope to change that. Soon after the gathering in Purulia, the tribals will congregate at Jawaharlal Nehru University in New Delhi on October 26 to raise their voice against the “centuries-old systematic repression of their culture and religion”. The students of JNU are more aggrieved than the tribals whose cause they claim to espouse to create a fractious environment where none exists. Who then is moving to the polar extreme and in this deliberate movement is there not the wilful  intent to create disturbance and will this intent not be impervious to resolution as a dispute has been raised for the sake of raising it without there being a reason for the same? Is this, again, not an issue of mischievous use of speech and can a legitimate objection to it be called a sign of polarisation?

Mr Chidambaram said, “University is a place where I have a right to be wrong!” If you claim such a right how do you justify rights or protest wrongs and use the medium of interaction to find common ground necessary for an ordered existence. And with such an attitude you, not those who oppose you, are responsible for the polarisation you claim to be so worried about.

The polarisation arising out of such abuse of free speech is not bad. The discord which follows exposes not what is wrong in the societal apparatus but who the miscreants in society are and the regulatory apparatus is then meant to intervene in such situations to discipline such reprobate behaviour. This is a sign of a functional not dysfunctional system. The disagreement on some issues is imperative for preservation of a polity and where there is justification for disagreement the disagreement cannot be cited as being pathological.

There is a contrary point of view to your world view Mr Chidambaram.That point of view is now equally vocal. Yes there is disagreement. But that is only half-truth. It is the unwillingness to see the reason for the same which is now causing the polarisation. Introspection will be better than playing the blame-game.