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The President’s Limit to pardon a Convict under Article 49 of the Constitution of Bangladesh

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Article 49 of the Constitution of Bangladesh gives the President the right to pardon. Although 15 amendments have been made to the constitution since its enactment, it has never been amended, although the serial number of the Article was first changed to 58 by the Fourth Amendment and then restored to 49 by the Twelfth Amendment. Although post-independence Bangladesh has been governed by both a parliamentary and a presidential system, and the powers of the President and the Prime Minister have changed during both systems, the rights conferred on the President in this Article remain unchanged.

While the country had a presidential system of government, its executive power was vested in the President, although in the present parliamentary system of government it is vested in the Prime Minister. Article 49 gives the President the power to pardon, stating that the President shall have the power to grant pardon, delay and pardon of any sentence imposed by any court, tribunal or any other authority and to suspend or reduce any sentence. In the system of government governed by the President, the President could exercise this power alone, but in the system of government of the parliamentary system, this power vested in the President is subject to the conditions mentioned in clause (3) of Article 48. Clause (3) of Article 48 states that the President shall act in accordance with the advice of the Prime Minister in discharging all his other duties except in the case of appointment of the Prime Minister in accordance with Article 56 (3) of the Constitution and the Chief Justice in accordance with Article 95 (1). Pursuant to clause (3) of Article 56, even if the President is empowered to appoint the Prime Minister and the Chief Justice by his sole decision, he cannot perform all his other duties without the advice of the Prime Minister. It should be noted that the powers vested in the President in appointing the Prime Minister and the Chief Justice are not arbitrary. This is because there is no opportunity for the President to appoint anyone other than the confidant of the majority of the Members of Parliament as the Prime Minister after or at any other time after the National Parliamentary election. In the case of the appointment of a Chief Justice, if the President, by exercising his discretionary power, overrides the most senior judge in the Appellate Division, the neutrality of the President, who is regarded as the guardian of the country, will be violated.

The powers conferred on the President by Article 49 are exercised by the President in two ways. One is the apology by the convict and the other is the apology by the President to the convict on the recommendation of the government on a special day of the country. In both cases, the President cannot exercise his power without the recommendation of the Prime Minister. According to our Penal Code, an offender can be given five types of punishment by a court or tribunal at the end of the trial on the basis of proof of guilt, namely, death penalty, life imprisonment, rigorous or non-rigorous imprisonment of any term, penalty for confiscation of property and fine. The power conferred on the President by the Constitution under Article 49 may be exercised by the President on the recommendation of the Prime Minister, who may, by exercising that power, pardon, delay, pause, pause, suspend or reduce any penalty. If an apology is made to the President for any of the above punishments, he may grant any remedy referred to in Article 49 through pardon.

The opinion of a former law minister with the title of Barrister on whether the President can exercise this power under the International Crimes Tribunal is not in accordance with the provisions of the Vienna Convention. In this regard, it appears in our Constitution that the President is empowered to pardon, delay, pause, pardon, suspend or reduce any other form of punishment, including the death penalty. The Article clearly states that the President has the power to impose such powers on any court, tribunal or any other authority. The right of the convict under the International Crimes Tribunal Act to seek pardon from the Supreme Court through a writ petition for violation of fundamental rights under the Constitution does not in any way diminish the power of the President conferred by Article 49. Therefore, the opinion expressed by the former law minister in this regard is not considered justified in the light of the spirit of Article 49 of the Constitution. It is to be noted that the First Amendment of the Constitution includes the insertion of clauses (3) to Article 47 and Article 47A  to preclude those against whom genocide, crimes against humanity or war crimes are applicable from remedies and rights guaranteed under Article 31, Clauses (1) and (3) of Article 35, and 44 of the Constitution.

The right to pardon given to the President in Article 49 of the Constitution is basically an opportunity for the ruling entity to exercise the power through the President. The President cannot, without the recommendation of the Prime Minister or the Government, grant any remedy to a convicted apology seeker by exercising his discretionary power. In our parliamentary system of government, all the executive powers of the government are vested in the Prime Minister, so the aspirations of the Prime Minister are the aspirations of the government. Therefore, the recommendation made to the President in response to the wishes of the Prime Minister is the recommendation of the ruling entity.

The power given to the President to grant pardon in the case of certain punishments under Article 49 of the Constitution, the Criminal Procedure Code also gives the similar power to the government in the case of certain punishments.  Sections 401, 402 and 402A of the Criminal Procedure Code are relevant in this regard. Sub-sections (1), (2) and (5) of section 401 are particularly relevant in the synthesis of the Constitutional Article in question. Sub-section (1) of section 401 states that when a person is convicted of an offense, the Government may at any time, unconditionally or subject to the conditions accepted by the convicted person, suspend the effect of his sentence or commute the imposed sentence in whole or in part. Sub-section (2) of that section states that when an application for suspension or remission of sentence is made to the Government, the Government may, if necessary, ask the judge of the court to give his opinion with reason on whether the application has been granted or rejected and a statement of that opinion, and also may ask for a copy of the judicial document of the convict or to forward the status of his proceedings.

Sub-section (5) of the same section states that nothing contained in this section shall be deemed to be an interference with the President’s right to pardon, delay or suspend a sentence.

Section 402 of the Criminal Procedure Code states that the Government may, without infringing upon sections 54 and 55 of the Penal Code, reduce any of the following sentences without the consent of the convicted person to the following sentence, such as life imprisonment in place of death, imprisonment for any term Penalty.

Section 402A of the Criminal Procedure Code states that the power conferred on the government by section 401 402 may be exercised by the President in the case of death penalty.

Section 54 of the Penal Code states that in each case where the death penalty can be imposed, the government may reduce any other sentence imposed under the rule without the consent of the offender. Observing Section 55 of the same rule, it appears that in every case where life imprisonment may be imposed, the government may reduce the sentence to any term of less than 20 years without the consent of the offender.

The idea derived from sections 401 and 402 of the Criminal Procedure Code and sections 54 and 55 of the Penal Code is that the government, in accordance with the provisions of these two laws, may waive or reduce any sentence in full or in part or may suspend effectiveness of the sentence.

The death penalty is the highest of the five penalties mentioned in our existing Penal Code. Although there is provision for remission, reduction or suspension of the death penalty by the government, it is not an impediment for the President to enforce it under the Criminal Procedure. Apart from that, the power given to the government in the Criminal Procedure Code to waive, reduce or suspend various punishments is in no way considered as any interference in the President’s right to pardon, delay, and waive various types of sentences. The recommendation of the Prime Minister is essential for the President to exercise the power conferred on the President by the Constitution in granting pardon to any punishment and the right conferred on the President in the Criminal Procedure Code to reduce or suspend the death penalty. Therefore, if the President wants to provide any remedy in case of death penalty under the Criminal Procedure Code as per the Constitution, it is not possible to do so by exercising his discretionary power without the recommendation of the Prime Minister or the Government. Although the President is elected with the support of a majority of the ruling party’s MPs, he is the guardian of the country’s constitution and all citizens. Apart from that, he is a symbol of national unity, solidarity and sovereignty. Everyone, especially the ruling party, should strive to maintain the confidence and trust of all the citizens of the country in the President. In a parliamentary system of government, since the recommendation of the Prime Minister or the government is essential for the President to exercise the power to pardon any punishment. There will be no respite from the loss of confidence and trust of the people in the class.

In the past, presidential and parliamentary systems of government have used the office of the President to unexpectedly pardon heinous offenders for political reasons. And so it is considered justifiable for the government to apply any kind of pardon and reduction or suspension of any kind of punishment because the government has the same power as the President.

In case of pardon of an offender under the Criminal Procedure Code by the President or the Government, it may be granted unconditionally or subject to the conditions accepted by the convicted person and in certain cases subject to the opinion of the court which has awarded the sentence. But when an offender is pardoned by the President under Article 49 of the Constitution, there is no need for any condition or opinion of the court.

There is a difference of opinion among jurists, law teachers, law students and researchers as to whether it is essential for a convicted criminal to plead guilty before seeking pardon to the President under the Constitution or any other form of pardon or remission. One view is that if a convicted criminal of death penalty seeks any pardon to the President, he must plead guilty. The other view is that an apology must be sought while seeking pardon and a confession is not necessary. Those who hold the second opinion point out that there is a precedent of pardon for the offender by the President while his appeal was still pending in the High Court Division. In their opinion, if such an offender pleads guilty during an apology, he has no chance of being appointed to an important position in the state or any position in the government. Since such appointments have not been questioned to date, the second opinion seems justified. Apart from that, Article 49 of the Constitution does not provide anything to give the impression that it is essential to plead guilty in the case of seeking forgiveness or pardon of any punishment.

Mahmudul Hasan is a recent LL.M. graduate of energy and environmental law and Thomas Buergenthal Fellow at The George Washington University Law School, Washington, D.C.

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Indian Republic Day: A Black Day for Kashmiris

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India celebrates ‘Republic Day’ on January 26th every year to commemorate the day when the Constitution of India came into effect, replacing the Government of India Act 1935, and making India a republic. However, it is observed as a ‘black day’ in Indian Illegally Occupied Jammu & Kashmir (IIOJK) because it marks the day when the Indian government stripped the region of its autonomous status and imposed direct rule from New Delhi. Kashmir has been a contentious issue between India and Pakistan since the two countries gained independence in 1947. The people of Jammu and Kashmir were promised a high degree of autonomy under Article 370 of the Indian Constitution, which was in effect until August 2019, when the Indian government revoked it. This autonomy included the right to a separate constitution, a separate flag, and laws that were distinct from the rest of India. However, in practice, the Indian government has been involved in suppressing the political and basic rights of the people of Jammu & Kashmir and denying them their right to self-determination.

The special status granted to Jammu and Kashmir under Article 370 of the Indian Constitution, which was revoked by the Indian government in 2019, had given the region a high degree of autonomy and protected its distinct identity. The revocation of this special status has led to widespread protests and resentment among the people of the region, who see it as an infringement on their rights and an attempt by the Indian government to suppress their political and cultural identity and right of self-determination.

The Indian government’s handling of the situation in Jammu and Kashmir has also been criticized by international human rights organizations, who in their recent reports have highlighted how the Indian government has been involved in human rights violations of the people of Kashmir, through the use of excessive force, arbitrary arrests, and censorship of the media. International Human Rights Law forbids the unjustified deprivation of life. The right to life is embodied in Article 3 of the Universal Declaration of Human Rights, which is being flagrantly violated in Kashmiri. India has signed the International Covenant on Civil and Political Rights as well (ICCPR). Which hasn’t prevented it from abusing the law, though.

When the Indian government removed Indian Occupied Kashmir’s special status and sent thousands more troops to the area, the situation for the locals of Kashmir became much tougher. Additionally, India reverted to age-old slavery techniques by enforcing a curfew on the helpless population, cutting off the internet and telecommunications, and detaining political figures, leaving 1.47 billion people cut off from the outside world, devoid of fundamental human rights, and living in dread. Since the repeal of Article 370 and the ensuing curfew, there have been reports of nighttime raids in which youngsters have been kidnapped and tortured, as well as of women being harassed. Intentionally violating both international humanitarian law and human rights law, the Indian military has intentionally dismembered, injured, and several times murdered people during this forceful conquest. The Kashmiri diaspora in the UK and Europe observe “Black Day” on January 26th each year to protest the Indian government’s illegal actions in Jammu& Kashmir. This day marks the anniversary of the Indian Constitution coming into effect in 1950, which provides a pretext for the formalization of Indian control over Kashmir, a region that has been the subject of ongoing conflict and human rights abuses. The diaspora uses this day to raise awareness about human rights abuses and the ongoing conflict in the region, and to call for self-determination for the people of Kashmir. They also call on the international community to break the status quo imposed by the fascist Indian government. For instance, the president of Tehreek-e-Kashmir UK president claimed that “the people of Kashmir have challenged India to take out the forces (one million) from the valley and then celebrate the republic day”. Jammu & Kashmir salvation movement president Altaf Ahmed also call the UN for intervention to protect the rights of Kashmiris.

India has long claimed to be the world’s largest democracy and a champion of human rights. However, it has a long history of human rights abuses and political suppression in the region of Kashmir. Despite India’s claims of being the world’s largest democratic state, it has been involved use of excessive force against peaceful protesters, the imposition of strict curfews and internet shutdowns, and the detention of political leaders and activists in the Kashmir region. The Indian government has also been criticized for its heavy-handed tactics in dealing with the insurgency in the region, which has resulted in widespread human rights abuses, including extrajudicial killings, torture, and enforced disappearances. The Indian government has also failed to provide the people of Kashmir with basic democratic rights, such as freedom of speech, freedom of the press, and the right to self-determination.

It is certainly true that the Indian government’s actions in the region of Kashmir have been widely criticized for human rights abuses and the suppression of political dissent. The deployment of a large number of security forces in the region, along with heavy-handed tactics, have resulted in widespread human rights abuses and a lack of protection for the people of Kashmir. This is in contrast to the protection of basic human and democratic rights, which are supposed to be guaranteed to all citizens of India by the Constitution. How a democratic state can be the largest human rights violator? A self-proclaimed secular state which does not give the rights of minorities cannot be a democratic republic state.

The situation in Kashmir raises questions about the Indian government’s commitment to protecting the rights of all of its citizens, regardless of ethnicity or religion. A democratic state should ensure that all citizens are protected and treated fairly under the law, but the actions of the Indian government in Kashmir suggest that this is not always the case. Similarly, a self-proclaimed secular state like India should ensure that all religious groups are treated fairly, but the Indian government has been criticized for its treatment of minority groups in the country, particularly the Muslim population of Kashmir.

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A Brief History of British Imperialism in India

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Map, "The Indian Empire and surrounding countries" (1909), Imperial Gazetteer of India. Via Wikipedia

The British Empire

The British Empire or Kingdom was an imperial entity that changed the global order in every way imaginable. The Kingdom of Great Britain was conceived in 1707 when Scotland and Wales joined England under the sovereignty of the Crown. Having ruled for three centuries, its imperialist tendencies had started to show quite early in the 17th century when Britain lay claim to its very first colony in Jamestown, Virginia. Imperial tendencies refer to the aggressive and expansionist ideology that had been donned by the Empire. British imperialism refers to the attempts and following successes of Britain in expanding its power territorially. It did this by infiltrating various regions of the world and forming colonies; though the colonies were self-managed for the most part, they were answerable to the monarchy and were exploited thoroughly without any compensation. Their foreign policy was to self-portray as traders and travelers and then obtain regional control over time. It was a global phenomenon, and it was majorly aided by England’s foray into maritime expansion. Shipping routes were new and undiscovered which led to new lands ripe for exploration and exploitation. There was also a certain rush within the Empire to expand due to the competitive nature of the international system at that time. It was a challenging race for control between England, Spain, France, and Holland.

The colonized regions of the world include North America, Australia, West Indies, New Zealand, Asia (Pakistan, India, Bangladesh, Sri Lanka, Hong Kong), Africa (Ghana, Nigeria, Kenya), and more. Around sixty-five current nation-states gained independence from the Empire. However, Britain left behind deep scars within the system that are detrimental to progress to this day.

Geopolitical

The British monarchy played a dominant role in one of the world’s greatest tragedies – The Transatlantic Slave Trade which lasted from about the 16th century to the 19th century. It altered the geopolitical dimensions of the world through massive population displacements. Even though later on it called for the Abolition (1833) and Emancipation of slavery and slaves – it had been a decisive enough move to alter world history.

Economic

The formation of colonies was for both political and economic power. They were sources of power with a combined manpower of over 450 million people. The colonies presented as pure profit as the natives and slates weren’t given adequate fiscal compensation. Working for pennies on the dollar, the indigenous populations were forced to work in less than favorable working conditions for long taxing hours. The major trade from colonies consisted of sugar, spices, silk, cotton, salt, silver, gold, ivory, tobacco, tea, and more. Many of these such as mining metals and extracting sugar are incredibly labor-intensive works.

The empire used various tactics to carve out strongholds in their regions of choice. The establishment of trading companies – Hudson Bay Company and East India Company, and Strait Settlements.

Socio-cultural

The Britishers have been responsible for most of the socio-cultural divide in the Subcontinent. Before their arrival in 1600s, the region was flourishing under the Mughal Rule with various castes and religions coexisting peacefully. Once the Empire came into control, they sowed seeds of discord amongst the masses along racial and religious lines. The promotion of white supremacy and the English language enveloped the people in a sense of inferiority that still rears its head to this day. The Muslim-Hindu divide became more pronounced after the War of Independence in 1857.

Indian Subcontinent

Formation of the East India Company

In the last months of the year 1600, a group of London-based traders asked for a royal charter – a document that essentially brings legal recognition to organizations and declarations and is granted by the monarch of the time, in order to expand their trade to the East Indies via new naval routes. They wanted to set up a new organization called The East India Company in the Indian subcontinent due to its massive potential. The request was granted by Queen Elizabeth I and the merchants set out, headed by James Lancaster. Once they reached it, they had to first request permission to establish their company. Sir Thomas Roe was sent forward to conduct negotiations with Mughal Emperor Jahangir who was eventually won over by the British charm. Finally, the company set up shop in Surat in the first decade of the 17th century.

Entrance into Politics

The initial interest of the Britishers was indeed purely economic and the company was working independently of the Kingdom. However, soon it became a full-blown empire of sorts with its own armed forces and land. They became responsible for almost half the goods being exported out of India. Their trade included spices, silk, cotton, dye, ammunition, glass, clay-made goods, opium, and tea. Their control over the remaining pillars of the state – Military and Politics, was initiated by General Robert Clive. Clive was a member of the EIC who joined the company army and led it to victory against Siraj-ud-Daulah – The Nawab of Bengal, in the Battle of Plassey in 1757. As he replaced the Nawab as the new governor of Bengal, it marked the start of British incursion into Indian politics. As another century passed and as India became more valuable to England, the Crown took over ruling in 1857 after the War of Independence, eventually dissolving East India Company in 1874.

British Raj

The British rule, as known in India – British Raj, was significantly more parasitic than the East India Company was with its ventures. It managed to destroy systems that had been thriving for centuries.

Disregarding Traditional Ways

British economy brought with it a complete disregard for cultural sentimentality and practices. They were in a global race for capital and territory, something which was not compatible with the traditional practices of the Indian people. They were made to abandon their ancestral teachings and ways of craftsmanship to fall in line with the mechanized ways of the British economy. Cheaper machine-made products replaced handmade goods. Those who could not work for hours in factories or toil away on the fields were suddenly out of jobs. There was a massive decline in employment in the vulnerable sectors of society – women, the elderly, and disabled communities.

Economic Policies

Forced labor and poor pay weren’t the only means through which British imperialism was ripping Indian society into shreds. There was a hefty price to pay because of their economic policies introduced in 1813, the repercussions of which can still be felt in modern times. The infamous policy of ‘One Way Free Trade’ which was introduced in 1813 set forth a precedent for British trade. According to it, British exports into India were not taxed, nor were they met with any tariffs, while Indian exports were taxed heavily. India was drained. It meant that Britain was working with a pure profit off of Indian resources and labor while actively suppressing any nationalized economy of the subcontinent.

Class Divide

England was front and center in creating and cementing a class divide within India. White supremacy was prevalent and with it came a heavy dose of linguistic racism. English was the primary mode of trade and communication in the upper echelons. The English Education Act was passed in 1835 which got funds reallocated for restructuring educational institutions for the sole purpose of making English the language of instruction and discussion.

Famines

Once World War II was initiated in 1939, Britain was up against Axis Powers – Germany, Italy, and Japan. Although it had the support of other Allied powers, still the cost was too high for Britain to bear due to its resources being spread out amongst the colonies all over the world. It directed the cash flows to the war efforts leading to massive famines in India. Overall, during its imperial rule, the Crown contributed to no less than 12 famines in India spanning from the years 1769-1944. The most atrocious one was The Bengal Famine. Lasting for little over a year, this famine set India back decades as it slaughtered millions and led to an internal economic collapse as well, sending many tumbling below the poverty line. The money that could have preserved the masses was instead used to fund arms and ammunition.

The Disintegration of Hindu-Muslim Relations

The British and their colonial legacy are responsible for the religious disharmony that is seen in modern-day India. The Britishers borrowed the divide-and-rule philosophy from Julius Caesar and used it to segregate the communities of India. The Sepoy Mutiny saw a religious fracture in the social fabric of the subcontinent which isolated both Hindus and Muslims – a previously co-habiting community into separate metaphorical corners. It eventually led to the Muslims forming an in-group mentality due to the common suffering. This ‘Us vs Them’ approach led to the 1947 partition and is still visible in modern-day India keeping the socio-religious conflict alive.

Conclusion

Much of the western world and most of Britain especially is built upon the backs of colonial labor. Their infrastructure, factories, and entire social standing are built because of the free and forced labor of the former colonies. Excess taxation and plunder are the only reasons why Britain survived the industrialization of the world and managed to maintain its position at the top.

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Hindutva has overshadowed Indian Republic Ideology

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India Modi

India observes Republic Day on January 26 each year to honor the 1950 Constitution of India, which succeeded the Government of India Act (1935) as the country’s governing law. Following decolonization, India’s new constitution was secular, emphasizing a reasonable separation of religion and state matters rather than strict demarcation as in many Western democracies. However, the political victory of the Hindu nationalist Bharatiya Janata Party in the late 1990s and past six years of Moodi’s victory, deduced an obvious Hindu interpretation of democracy that differs from the existential western form of democracy.  Religious content has increased in India’s electoral environment (BJP). The post-colonial era has conveyed an alternative nationalism, one that is founded not on secular ideas but rather on the idea that Hindu culture and Indian culture are inseparable. Moodi is ready to transform India into a contemporary Hindu version of controlled democracy through his widespread advocacy of Hindutva ideology.

The secularism of the Indian Republic has always been opposed by the Hindutva movement. A significant portion of Muslims were persuaded to remain in India instead of migrating to the newly founded Islamic state of Pakistan because, at the time, independent India proclaimed itself a secular state, offering freedom to all minority groups as well as citizens’ fundamental rights. All those who supported secularism were perished tragically due to the brutality of the rising Hindu extremism. Even Mahatma Gandhi, the most influential Hindu leader, was assassinated by the RSS because of his secular vision. Since then, Hindutva has become the core of every right-wing political group in India, including the RSS, Shiv Sena, Hindu Mahasbha, and BJP, led by Narendra Modi.

Since many years, termite fascism—which rejects equality—has been encroaching on India in the form of Hindutva. Apparently, in present day India, the Hindu Rashtra is theoretically opposed to caste discrimination against political Hindus. Modi’s ordinary beginning and ascension to authority offer conclusive proof of a free and fair modernity. However, in practice, Hindutva is ready to accept the daily coercions that characterize contemporary Indian society. Instead of assuring the due rights of minorities residing in India, the parliament validated the communal, majoritarian, and intolerable Citizenship Amendment Act (CAA)  – 2019 (CAA) followed by Indian High Court’s suspicious decision on the Babri Masjid.  By fabricating a “Muslim threat” to support the BJP’s anti-Muslim actions, Hindutva has exacerbated social divisions in India. Undoubtedly, right-wing Hindu nationalism threatens India’s constitutional foundations by establishing a Hindu Rashtra. This includes the 2019 Citizenship (Amendment) Act, the removal of Kashmir’s autonomous status, and the Kerala hijab ban. Fascism is reshaping itself in India. It has infiltrated Hindu nationalism, or Hindutva, and now seriously endangers Indian democracy.

Similarly, the inauguration of a Hindu temple in Ayudha on August 5, 2020 (the same day a year after Article 370 was revoked) in lieu of a Mughal-era mosque razed by a right-wing Hindu mob in 1992. This confirms that the BJP has re-energized Savarkar’s plan of Hindutva as a political religion, although in a decidedly populist tone. Conservatism is now increasingly couched in current class semantics (“rich” and “poor”) rather than ancient caste terminology. Some people are considered more equal than others. Muslims, Christians, Marxists, and anti-caste campaigners are the new targets of prejudice and rejection. Individuals under such categories would be deemed political Hindus if they accepted Hindutva. In the new Hindu government, the lines are porous, and everything is negotiable.

Here, the point of concern is whether secularism would continue to serve India’s central philosophy. Perhaps it would be determined by a confluence of political factors, specifically the BJP’s future electoral success and the tactics the opposition uses to challenge the ruling party. Hindu nationalism is stripping India of one of its greatest strengths at a time when nations all over the world are struggling to deal with religious diversity. Therefore, it may not be incorrect to say that Hindu nationalism has an unquestionable sphere of influence over Indian politics and society, despite its evidently xenophobic emergence under the BJP. In fact, the revival of caste identities, which frequently threaten religious identities, is indirectly detrimental to secularism. The BJP has consistently attempted to adopt discriminatory policies to exploit caste-based individualities. In sum, India’s commitment to secularist republic tradition is now in doubt given the political dominance of the BJP’s trademark of Hindu nationalism.

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