Modi and his visa

Print edition : April 22, 2005

Gujarat Chief Minister Narendra Modi. - P.V. SIVAKUMAR

The denial of a U.S. visa to Narendra Modi is not an insult to India. It is a stinging international censure under wider legal concepts such as `crimes against humanity' and 'universal jurisdiction'.

Wo baat saray fasaney mey jiska zikr na tha / Wo baat unko bahut nagawaar guzri hai (That which was unspoken in the episode/Is the very thing that offended her the most).

THIS immortal couplet of Faiz explains the rage in the Bharatiya Janata Party (BJP) circles. The United States' refusal to let in Narendra Modi, Chief Minister of Gujarat, a Rashtriya Swayamsewak Sangh (RSS) pracharak and a practising Nazi, is not an insult to India. It is a stinging international censure of a man who carved his name indelibly in the annals of infamy, of the party to which he belongs (the BJP), its mentor (the RSS), and of the men who shielded him (A.B. Vajpayee and L.K. Advani). He not only presided over a pogrom in Gujarat and ensured that the perpetrators went scot free but also that the victims were not rehabilitated. Censures there have been before. This one comes from a powerful friend and goes beyond words. It brands and excludes him as an untouchable. Hence, the pain.

The U.S. decision is best understood in the context of two parallel processes that were afoot there and here. It is not a sudden development. Modi and his mentors had been warned six years ago on January 31, 1999, by an acknowledged friend of India, Congressman Gary Ackerman, co-chair of the Congressional India Caucus. He told Indian Americans in Washington D.C.: "I must warn all of you that unless the Government of India does act firmly, showing the whole world that it won't tolerate attacks against religious minorities, New Delhi may have serious problems on the Hill [the U.S. Congress]. Not merely image problems, but legislative sanctions as well." This was an allusion to the U.S. International Religious Freedom Act, 1998, which President Bill Clinton signed into law on October 27, 1998.

The Act empowers the President to appoint an Ambassador at Large to represent the U.S. in "contacts with foreign governments" in such matters. He is enjoined to conduct investigations and to report. An Annual Report on International Religious Freedom (IRF) will be submitted on September 1 of each year. Its format is prescribed in detail. It will be put on the Internet. There will also be a U.S. Commission on International Religious Freedom (CIRF). Section 405 lists 15 possible "Presidential actions". They comprise "a private demarche", "an official public demarche", "a public condemnation within one or more international fora", cancellation of scientific or cultural exchanges, denial of official or state visits, and a host of economic sanctions which are meticulously listed.

On September 9, 1999, it was announced that the Ambassador at Large for IRF, Robert Seiple, would visit India because "there are a lot of things that happened last year that are troubling". The Ministry of External Affairs (MEA) was livid. But the CIRF's Report published around that time revealed that there was really no need for him to come. The U.S. Ambassador in India, Richard Celeste, had "on several occasions expressed to senior government leaders the deep concern in the United States over the attacks on Christians in 1998 and early 1999 that were carried out by groups loosely affiliated with the BJP government. The Ambassador met with Home Minister L.K. Advani on October 22, 1998, and with BJP president Kushabhau Thakre on November 6, 1998; on both occasions the Ambassador noted the increasing number of attacks on Christians being carried out by organisations affiliated with the RSS, and thus the BJP. On January 12, 1999, the Ambassador met with VHP [Vishwa Hindu Parishad] president V.H. Dalmia to raise the issue of violence against Christians. On January 6, 1999, Assistant Secretary of State for South Asian Affairs, Karl Inderfurth, met with Indian Ambassador Naresh Chandra in Washington, and during the meeting he relayed U.S. concern about the persecution of Christians in India. He also stated that the United States opposed any instance of religious intolerance, no matter what religion was concerned. On February 1, 1999, Assistant Secretary of State Inderfurth met with Foreign Secretary K. Raghunath and again raised the issue of the attacks on Christians, and the U.S. concern over the matter. Assistant Secretary of State for Democracy, Human Rights, and Labour, Harold Hongju Koh, met with Home Secretary B.P. Singh to discuss religious persecution issues on February 2, 1999."

Robert Seiple himself met Naresh Chandra in Washington on February 22, 1999, and discussed the violence against Christians in India. Seiple was not snubbed. He was heard. More, his boss in the State Department's Bureau of Democracy, Human Rights and Labour met the Home Secretary. Was it in India? The Ambassador's office is "in the Bureau". The Report proceeded to mention also that U.S. Embassy officials "meet with religious officials to monitor religious freedom on a regular basis". The details were fully set out. U.S. Embassy "staff members meet with local NGOs to keep apprised of developments concerning religious freedom".

It was, therefore, foolish to expect that the Gujarat pogrom of February-March 2002 would evoke no reaction. U.S. Ambassador Robert Blackwill did his best to play it down. Anger in the U.S was instant. But the reaction took its own time. It erupted now only because Modi decided to visit the U.S. On October 1, 2002, the CIRF recommended that the U.S. Secretary of State, Colin Powell, designate India as one of the 13 on the list of COPCs - "Countries of Particular Concern". This is where the BJP regime had brought us to. The CIRF Report for 2002 damned the Sangh Parivar completely: "Religious minorities had periodically been subjected to severe violence including mass killings. Those responsible for the violence were rarely ever held to account... . An increase in such violence has coincided with the rise in political influence of groups associated with the Sangh Parivar, a collection of Hindu extremist nationalist organisations that view non-Hindus as foreign to India and hence deserving of attack." With its rise to power "the climate of immunity for the perpetrators of attacks on minorities appears to have strengthened".

The Centre "may not be directly responsible" but it is "clear that the government is not doing all that it could to pursue the perpetrators of the attacks". The report criticised the Centre for not imposing President's Rule in Gujarat "despite many requests and the fact that the killing of Muslims continued (on a lesser scale) for many weeks".

A scene of rioting in Ahmedabad on March 1, 2002.-MANISH SWARUP/AP

However, the State Department's own Report on Human Rights published on October 7, 2002, was "muted" as the Chair of the CIRF Felice Gaer noted. In the case of India it showed a "continuation of a trend of hesitancy to state conclusions", she angrily complained to a Congressional Committee on October 10. She was not hostile to India. She was one of the two members who dissented on the CIRF's recommendation on India as one of the COPC. Reason? There was no evidence of the direct hand of the Centre behind the pogrom even as there was "abundant evidence of complicity at the state level" (vide Sridhar Krishnaswami's report in The Hindu, October 11, 2002).

She was in honest error. The Centre's inaction was eloquently wilful. We now have it authoritatively from none other than the President of the day, K.R. Narayanan, that there was in fact "a conspiracy involving the State and Central governments behind the Gujarat riots". He revealed in a press interview to the Malayalam monthly Manava Sanskriti: "There was a governmental and administrative support for the communal riots in Gujarat. I gave several letters to Prime Minister Vajpayee in this regard on this issue. I met him personally and talked to him directly. But Vajpayee did not do anything effective. I requested him to send the Army to Gujarat and suppress the riots. The Centre had the constitutional responsibility and powers to send the military if the State governments asked. The military was sent, but they were not given powers to shoot."

Felice Gaer's error shows she was not out to criticise New Delhi. This lends added force to her censure of the U.S. State Department for its inaction; on Robert Blackwill's advice, no doubt. She demanded: "We would like to know what is the U.S. government's view of this. The same report tells us that several U.S. officials went to Gujarat to examine the situation. But we are still waiting for a senior U.S. official to speak out publicly about those findings, rather than to refer generically to `the horrible violence'. The Commission had, for the last two years, expressed concern about the `severe violence' against religious minorities in India in which there has been a pattern of failure to bring those responsible to account." She rubbed it in: "There has been no direct condemnation of the fact that the attacks were mainly against Muslims... . The American Ambassador and other senior officials should speak out and encourage the Indian government to take action to protect Muslims and hold the perpetrators accountable before the law."

In contrast, the Ambassador at Large for IRF, John Henford, preferred to remain at large. He was very guarded in his remarks: This could not have escaped notice. It served only to build pressure on the State Department.

The CIRF's Report of 2004 marked a turning point. "During most of the period covered by this Report the Central government was led by" the National Democratic Alliance. Its "leading party" was the BJP, "a Hindu nationalist party with links to Hindu extremist groups". A certificate of which the BJP must be proud. In its very first few pages, the Report set out the Supreme Court of India's strictures on the Modi regime to add that "violence and discrimination against Muslims and Christians continued in other parts of the country", with impunity.

The Report recorded: "The U.S. government discusses religious freedom issues with the Government [of India] in the context of its overall policy to promote human rights. The U.S. Embassy and its consulates continued to promote religious freedom through contact with the country's senior leadership, as well as with state and local officials. During meetings with important leaders of all of the significant minority communities, U.S. officials discussed reports of ongoing harassment of minority groups, converts, and missionaries. U.S. agencies provided funding for an NGO programme designed to assist internally displaced persons in Gujarat following communal violence in the area in 2002, and U.S. officials continued to meet with officials and private citizens concerning the violence."

Given this consistent record of the BJP regime's acquiescence in what clearly were official U.S. demarches, under the IRF Act, since 1998, it is too late in the day for any one to cry "interference in domestic affairs" or contest any action the U.S. now takes on its own soil under that very Act. None of these official demarches made in private would have been known but for their disclosures in the Commission's Reports. In public the BJP regime presented a different facade. Finnish Foreign Minister Erkki Tuomiojia had said: "What happened in Gujarat is of great concern for us. It was mentioned at the Luxembourg meeting of the E.U. The pictures of the carnage are very disturbing." The MEA reacted boorishly. The then official spokesperson said: "We would like to make it clear that India does not appreciate interference in its internal affairs." It was an example of the "utilisation of the Indian media by foreign leaders". India did not like "visiting dignitaries making public statements in order to pander to their domestic lobbies".

Since Finland is not known as a country with a large Indian or South Asian diaspora, the MEA's remarks were obviously aimed at the British. Barely a week earlier, details of a British High Commission cable to London on Gujarat were leaked to The Hindustan Times, much to the embarrassment of the Vajpayee government. The cable, which was based on a tour of the State by a High Commission team, apparently held that the attacks on Muslims in Gujarat had been planned well before the Godhra carnage and that in some places, the police had been instructed not to act. Broadly similar conclusions appear to have been reached by the German and Dutch missions in New Delhi, as well as by the E.U. External Affairs Minister Jaswant Singh was furious when, on January 22, 1999, during a meeting with E.U. envoys, German Ambassador Heinrich-Dietrich Dieckman mentioned the murder of Graham Staines and the attacks on Christians. He had in a press interview on January 12 called it "an internal affair with international implications".

It all harks back to the Emergency when, in a letter to the United Nations Secretary-General, India's permanent Mission at the U.N. wrote on June 7, 1976, that "the protection of fundamental human rights is the concern of each sovereign state and is a matter which is essentially within the domestic jurisdiction of member states of the United Nations." This did not prevent Indira Gandhi from criticising human rights violations elsewhere. On August 26, 1983, she declared: "We have always condemned inhuman treatment meted out to people irrespective of whether such acts take place in our own nation or outside." This inconsistency is pronounced in the BJP; but it cuts across political lines.

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She added: "The Association of Indian Americans of North America (AINA) invited Narendra Modi to New York on March 20. Sangh members in the U.S. formed AINA for this purpose. The AAHOA invited Modi as chief guest for their annual convention in Florida on March 24-26. CAG called on Chris Matthews, host of Hardball, MSNBC, to decline the invitation to speak at the AAHOA Convention, and American Express to rescind its sponsorship of AAHOA. On March 8, Chris Matthews withdrew from the AAHOA event, giving up an estimated professional fee of thousands. The Institute on Religion and Public Policy wrote to Secretary of State Condoleezza Rice, some CAG members lobbied with Capitol Hill, and 125 South Asia Studies and other faculty in the U.S. wrote to the State Department, the House and Senate Foreign Relations Committees, and the United Nations, to decline Modi's visa."

On March 18, Modi was denied a diplomatic visa under Section 214 (b) of the Immigration and Nationality Act (INA) by the U.S. Embassy in New Delhi, as this was not a diplomatic visit, and his tourist and business visa was revoked under Section 212 (a) (2) (G), "as an official responsible for carrying out severe violations of religious freedom", under Section 3 of the IRF Act of 1998. Following this, the AAHOA withdrew Modi's invitation, and American Express cancelled $150,000 in sponsorship money. Why blame the State Department? It was responding to public opinion.

When you apply for a visa to visit the U.S. you know what all is involved. Modi's sponsors knew the background and the law. They tried to brazen it out and got him humiliated. Grant or denial of a visa is a statutory function under the INA. Section 211 lays down conditions for admission of aliens. Section 212 defines "classes of excludable aliens". The pertinent Clause (G) was inserted by the IRF Act, 1998 itself. Its Section 604 inserted Clause (G) which bars any alien who, "while serving as a foreign government official was responsible for or directly carried out, particularly severe violations of religious freedom as defined in Section 3 of the International Religious Freedom Act of 1998". Section 212 (a) (2) lists excludables from Clauses (A) to (G). It fulfils the mandate of the IRF Act by laying down that an alien who falls within these Clauses "is inadmissible". No discussion is allowed. Section 3 of the IRF Act includes in the definition "flagrant denial of the right to life, liberty, or the security of persons". Was not Modi at the very least, "responsible" for this?

The only way Modi could have been allowed was for the Attorney-General to exercise his power of waiver under Clause (L) of Section 212 and invite contempt and ridicule from the U.S. Congress, the media and people all over the world.

It is doubtful, however, whether the language of the Act permits such a waiver. It would have put Modi in a worse situation than he is today.

No credit is being given for the U.S. restraint in not applying a far more damning yet perfectly appropriate provision. It is Section 212 (a) (3) (E) (ii): "Any alien who has engaged in conduct that is defined as genocide for the purposes of the International Convention on the Prevention and Punishment of Genocide is excludable."

Article II defines genocide thus: "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part... "

Article III says: "The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in committing genocide." If not Clause (e), Clause (c) definitely applies. In a series of public utterances at the height of the carnage, Modi justified and condoned it. Sample just this: "It wasn't merely a communal riot but something like a mass agitation. There was already great anger against terrorism and anti-national activity. The Godhra episode symbolised that." Both India and the U.S. are parties to the Genocide Convention and are pledged to enforce it.

The U.S. action was not based on material collected clandestinely behind his back. The Deputy Spokesman of the State Department, Adam Ereli, said on March 19, that this was a case of the U.S. "responding to a finding by the Indian National Human Rights Commission".

HERE is a list of Reports on Modi's complicity in the pogrom and its direct aftermath: (1) The NHRC's Report (May 31, 2002); (2) The Election Commission's Order (August 16, 2002) on the "bad" situation in Gujarat and that "conditions in the State were not conducive at all for holding any free and fair election for the present"; (3) Report of the People's Union for Democratic Rights, Delhi (May 2002); (4) Editors' Guild Fact Finding Mission Report, entitled Rights and Wrongs; Ordeal by Fire in the Killing Fields of Gujarat by Aakar Patel, Dileep Padgaonkar and B.G. Verghese; (5) Human Rights Watch Report aptly entitled: We have no orders to save you? State Participation and Complicity in Communal Violence in Gujarat (April 2002); (6) Brij Swain and Somnath Vatsa's Report on "different forms of violence being meted out to Gujarat's Muslims" for two years since February 2002, in Himal of March-April 2004; (7) Communalism Combat's Report "Genocide 2002" (March-April 2002), a thorough exposure; (8) Combat Law (April-May 2004); a useful collection of affidavits and judicial decisions; (9) Gujarat: The Making of a Tragedy edited by Siddharth Varadarajan (Penguin, 2002), a useful compilation of reportage and analyses; (10) Crime Against Humanity: An Inquiry into the Carnage in Gujarat by Concerned Citizens Tribunal; Vols. 1 & 2 (2002). Vide also Harvest of Hatred: The Concerned Citizens' Tribunal Report edited by Prof. Richard Boney (Media House, Delhi; Rs.350).

Last and the most damning censure of all, the Supreme Court of India's historic judgment in the Best Bakery Case: Zahira Habibulla H. Sheikh vs. State of Gujarat (2004) 4 Supreme Court Cases 158. At page 198 occurs the famous reference: "the modern day `Neros'... were looking elsewhere when Best Bakery and innocent children and helpless women were burning and were probably deliberating how the perpetrators of the crime can be saved or protected."

Two persons qualify pre-eminently for this description as they had alike the responsibility to save the innocent and the power to protect their killers - Chief Minister Modi and Union Home Minister Advani.

Prime Minister Manmohan Singh did grave wrong to all who worked hard and in earnest in these proceedings and, not least, to his own considerable and deserved prestige when, on March 19, he said: "We do not believe that it is appropriate to use allegations, or anything less than due process, to make a subjective judgment to question a constitutional authority in India." What impelled him to say this is hard to guess. Or is it? One wonders. It will be hard for him to undo the damage. What was all that he said in aid of?

What precisely is the Prime Minister's grievance? 1. That the United States had no right to define the categories of people it would not admit. 2. That it should not have enforced the law. 3. That Narendra Modi does not answer to the description in the pertinent provision of the American law. All three propositions are palpably inarguable. The Government of India has only helped the BJP to paint Narendra Modi as a martyr.

Modi was lucky. He planned to meet hoteliers in the U.S. Had he gone, instead, to meet the Gujarati diaspora of diamond merchants in Belgium, he would have received a slightly different treatment. He would have been arrested and tried under its "Act Concerning the Punishment of Grave Breaches of International Humanitarian Law". It recognises a universal jurisdiction for Belgian courts in respect of such grave breaches, irrespective of the place of their commission or the nationality of the offender or the victim. Definitions of offences are based on those in International Conventions.

Article 1 concerns genocide which is defined to include "killing members" of an ethnic, religious or racial group "as such" as also "causing serious bodily or mental harm to members of the group".

Modi did well to cancel his trip to the United Kingdom. Remember the Pinochet case? Most people in India are unfamiliar with the wider legal concepts of "crimes against humanity" and "universal jurisdiction". The fact that Modi is Chief Minister is irrelevant. The House of Lords ruled in the Pinochet case that no sovereign immunity attaches even to a head of a state, President Pinochet, when he abuses his office to commit any of the crimes against humanity. Genocide is one of them.

Modi blithely asks, "What of the crimes the U.S. committed in Iraq?" It is a tacit admission that the wrongs he committed belong to the same genre. France will not consider it an "insult" if Le Pen is refused an Indian visa nor will the U.S. if the leader of Ku Klux Khan or a racist group is refused entry. Appeasement of the BJP is sheer folly. Its appetite is insatiable. Anyone is good enough for it to make noise and destabilise the United Progressive Alliance government. Manmohan has scored a self-goal.

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