Misuse of Powers to harass Dissenters also Terrorism

September 29, 2018

When human five rights activists were arrested by the Pune Police in what was seen as a nationwide crackdown on dissenting voices, civil society members led by Romila Thapar moved the Supreme Court against this. Today after the apex court disposed the petition and directed the activists to seek relief from lower courts, the petitioners have issued the following press release.

We approached the Supreme Court when five well-known lawyers, journalists and civil rights activists were arrested across the country on 28th August and charged with abetting acts of terror under the Unlawful Activities (Prevention) Act (UAPA).

Our intention was to draw the attention of the judiciary to what we believe is a case of gross misuse of the state’s powers under draconian laws like the UAPA. Our history as a republic shows that, if left unchecked, such misuse causes grave injustices and endangers the civil liberties of all Indians.

Those arrested on 28th August have been accused of being implicated in acts of terrorism.

However, we believe that there are two kinds of terrorism both of which create fear and undermine the foundations of our democracy:
The violent acts of those described as terrorists, who plant bombs, instigate people to be violent, engineer riots and deliberately spread fear through their acts;
and
The illegal or unjustified acts of state functionaries who, instead of pursuing the actual perpetrators of violence, misuse their powers to harass those who do not conform to the politics of their current masters.

When the state uses anti-terror laws without adequate proof against persons known to be working for the rights of the weaker sections of society, it is also spreading a kind of terror. Arbitrary arrests on implausible charges, like those of 28th August, are a source of anxiety for us all. They mean that the police can walk into our homes and arrest us – either without a warrant, or a warrant written in a language we don’t understand – and then accuse us of activities about which we know nothing.

It has always been assumed that a genuine democracy will respect the constitutional and legal rights of every citizen, including the right to hold opinions different from – or even in opposition to – those of the government of the day. Since these arrests follow similar arrests made in June, the arrests of 28th August point to a continuing attempt to erode these rights.

Our petition was essentially an appeal to the Supreme Court to check this erosion of rights and protect the liberty and dignity of human rights activists.

Today’s judgment has provided protection to the activists for a further period of 4 weeks and has given them the liberty to seek remedy from the appropriate courts. Our stand in this case finds vindication in the dissenting opinion of J. Dr. DY Chandrchud who has categorically held that liberty cannot be sacrificed at the altar of conjecture, and that the police had been taking liberties with the truth and besmirching the reputation of the activists by doing a media trial. Under such circumstances, the police’s ability to conduct a free, fair and impartial investigation is in serious doubt, as has been held by J. Dr. DY Chandrachud.

We, the Petitioners, are pleased to note that at least the liberty and dignity of the human rights activists has for the time being not been jeopardized and the Supreme Court has protected the same.

Signed, Delhi, 28th September 2018:

Romila Thapar: _________
Devaki Jain: _________
Prabhat Patnaik _________
Satish Deshpande _________
Maja Daruwala ________

Pehlu Khan’s sons, lawyer and case witnesses attacked in Rajasthan

September 29, 2018

In a shocking development in the Pehlu Khan lynching case, his sons, their lawyer as well as witnesses who were on their way to depose before a court in Behror, were attacked by men in an unmarked vehicle. They were travelling from their village Nuh in Haryana to Behror in Rajasthan.

Their lawyer Mohammed Asad Hayat posted about the incident on his Facebook page saying, “Today witnesses were going to start deposing in the Pehlu Khan case. Therefore I, accompanied by Pehlu’s sons Irshad and Arif, as well as two witnesses Azmat and Rafiq, were traveling to Behror in a car. Our driver was Amjad.” He said they were driving along NH8, and shortly after crossing Nimrana a vehicle began to follow them. Adv Hayat said, “The men were in a Black Scorpio but the vehicle had no number plates. They tried to overtake us and then started firing at us!” Hayat says that they took a U-turn after this attack and headed to Alwar to meet district officials. “This was a tactic to intimidate the witnesses and prevent them from deposing,” says Adv Hayat.

He also uploaded this picture on his Facebook page:

Speaking to Indian Express, Pehlu Khan’s son Irshad confirmed the story and said, “The vehicle came near and the men inside waved their hands, asking us to stop. We might have even stopped, but we didn’t as their vehicle did not have a number plate. Then their vehicle came nearer and the men started hurling abuses at us, telling us to stop at once. Then they overtook us and fired upon us.”

Speaking to Sabrang India, Alwar SP Rajendra Singh confirmed that Advocate Hayat and Pehlu Khan’s sons had approached him after escaping from the alleged attack. “Yes, they came here and met us. The matter has been brought to our attention and police will now investigate the case.”

Meanwhile People’s Union of Civil Liberties (PUCL) and Sabrang India’s sister concern Citizens for Justice and Peace are appealing for protection to be provided to the witnesses in the case.

PEOPLE’S UNION FOR CIVIL LIBERTIES
RAJASTHAN
Date: 29th September, 2018
Jaipur.
Sh. O.P. Galhotra,
DG Rajasthan,
Jaipur.
Sh. VK Singh,
IG Jaipur Range,
Jaipur.
SP Alwar
Alwar, Rajasthan
Subject:
1.   Urgent lodging of the FIR and arrest of all accused in today morning’s attack on all witnesses in the Pehlu khan murder case, near Nimrana in Alwar district.
2.    Providing security to the witnesses for a fair and impartial trial.
3.    Shifting of the trial outside Behror for the above objective.
Dear Sir,
Today was the date of hearing in the Pehlu khan murder case in the ADJ Behror court. All the witnesses along with a lawyer were on their way to Behror from Jaisinghpur, Nuh, Mewat, Haryana. Aarif and Irshad, sons of Pehlu Khan and Rafique and Azmat are primary witnesses to the lynching that happened on 1st April, 2017. Pehlu Khan, was seriously injured during the incident and later passed away on the 3rd. April, 2017 in a private hospital in Behror.
With the SC having given proper guidelines in its July 2018 order in the TehseenPoonawalla case of setting up fast track courts, speeding up the trial and conducting day to day hearings. The SC also issued contempt notices to the Rajasthan Police for the murder of Rakbar Khans in RamgarhAlwar. This urged the Courts and the police get their act together and finally the witnesses were called for their statements.
The details of today’s i.e. 29 September 2018 are as follows –
The four witnesses and their lawyer left Jaisinghpur early morning and were on their way to Behror in a Bolero car numbered HR55 1310. While approaching Gyan Hotel near Neemrana, their vehicle was chased by unknown men in a black Scorpio without a number plate and their vehicle was fired at, after which the Scorpio turned towards Behror and disappeared. It was targeted as is clear from the Message sent by Lawyer Asad Haya which is as follows ” आज पहलू केस में गवाहों के बयान शुरू होने थे। इसलिए मैं पहलू के पुत्रगण इरशाद , आरिफ और गवाह अज़मत व रफीक़ के साथ कार से बहरोड़ जा रहा था।कार अमजद चला रहा था । नीमराना क्रॉस करने के बाद अज्ञात लोगों द्वारा हमारी कार का पीछा शुरू कर दिया गया और ओवरटेक करते हुए कार को रोकने की कोशिश की गई और फायर भी किया गया ।फायरिंग करते हुए गाड़ी बहरोड़ की तरफ चली गयी । काले रंग की स्कोर्पियी थी जिस पर नंबर प्लेट नहीं थी । इन हालात मैं हमने गाड़ी को वापस यूटर्न से वापस लिया है और अब अलवर ज़िला अधिकारियों के पास जा रहे है। सभी सुरक्षित हैं । गवाही से रोकने के लिए ये कृत्य अपराधियों द्वारा किया गया है।
-असद हयात
On receiving this message on a Whatsapp group, I called up Azmat who has been regularly in touch with me. Azmat confirmed the incident and told me that they would only go to the court only if they got proper police protection. They were rushing to Alwar, which was 70 KMs away. Upon
I called up the SP immediately, who said that an FIR would be lodged and action would be taken. The IG Jaipur range too was informed and has also responded positively.
It is our humble request that security be provided urgently and immediately to the witnesses.This police protection should be given from Haryana itself, right up to the Court and back. It is important that for a fair and impartial trial the witnesses are not only given protection but are able to fearlessly speak out what they saw that day as part of their deposition to the court.
Secondly, it would be sensible to move the trial outside Behror to Jaipur, Alwar or even outside to Delhi as was done in some of the Gujarat 2002 cases,when the trial was shifted to Mumbai.
I hope you share our concern and would recommend the same to the judicial authorities, i.e. for the trial to be moved out of Behror. The environment in Behror is averse to democratic practices, where not only lynchings occur but also no action is taken to stop them. Another such incident from 2017 was when Karwaan-e-Mohabbat led by Harsh Mander was passing through Behror. They were not allowed by the local police to even visit the place where Pehlu Khan was lynched, let alone hold a meeting in the city. As the supporters of the killers and so called Gaurakshaks had told the police that they would attack if such a meeting happened. To make matters worse, the Karwaan was attacked in Kotputli when they stopped for tea.
The constitution promises the right to free and fair trial to all the citizens, sadly these circumstances are far away from it. It is important that not only protection be given to the witnesses but also the trial be moved out of Behror to actualize the principle laid down by the law of the land..
Regards.
Kavita Srivastava,                                           Anant Bhatnagar,
President                                                      General Secretary
Address: 76, Shanti Niketan Colony, Kisan Marg, Tonk Road, Jaipur-302015

Delhi HC greenlights Cobrapost’s Sting, calls Free Speech Lifeblood of Democracy

September 29, 2018

In a shot in the arm for freedom of press, the Delhi High Court has quashed the order restraining Cobrapost from publishing its sting operation against prominent media houses. Earlier on May 24, a single judge bench of Justice Valmiki Mehta had passed an interim order preventing Cobrapost, a web portal known for investigative journalism, from releasing any materials related to its sting operation titled Operation 136 (Part 2). But on Friday, a Division Bench of the Delhi HC comprising Justice Ravindra Bhat and Justice AK Chawla set aside the interim order stating, “Free speech is the lifeblood of democracy.”

The court observed, “If courts are to routinely stifle debate, what cannot be done by law by the State can be achieved indirectly without satisfying exacting constitutional standards that permit infractions on the valuable right to freedom of speech.”

The two-part sting operation showcases how top media houses, including top television networks and popular newspapers, are open to accepting payment in order to publish articles and telecast shows that further agendas of religious groups affiliated to political parties, in a bid to build favourable opinion among viewers. The project was titled Operation 136 as that was India’s ranking in the World Press Freedom Index by Reporters Without Borders. Since then, India has slipped two more places.

The Dainik Bhaskar Group had moved court stating that Part 2 of the sting was released with the sole intention to defame them. But in their judgment, the bench held that “those who fill public positions must not be too thin-skinned in respect of references made upon them.”
Shortly after the judgment Cobrapost uploaded the entire sting with transcripts. It may be viewed here. The entire judgment may be read here:

SC ends gender discrimination at Sabrimala: Women of all ages can enter temple

September 28, 2018

In a resounding slap in the face of patriarchy and gender based discrimination, the Supreme Court has put an end to the age old practice of barring entry of women of a menstruating age into the Sabrimala temple. In a landmark judgment, the apex court ruled that women of all age-groups could enter the temple.

In what is being hailed as a hugely feminist judgment, the court observed, “Historically, women have been treated with inequality and that is why, many have fought for their rights… There is inequality on the path of approach to understand the divinity. The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender.”

The court further observed, “Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess one’s religion. The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality.”

This stand effectively challenges the stigma associated with menstruation, a key element of gender based discrimination. The judgment also rejects the age old belief that fertile or sexually active women were impure and likely to lead pious men astray.

Justice Chandrachud in his separate but concurring judgement held that the ban was premised on the judgement that women’s presence in the temple would disturb celibacy which, according to him, placed the burden of men’s celibacy unto women.

Rules 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of entry), 1965 was struck down by CJI holding that Ayyappa devotees will not constitute a separate religious domination. Justice Nariman in his judgement held: “Anything destructive of individuality is anachronistic of Constitutionality. To treat women as lesser people blinks at the Constitution itself”

However, even this judgment was not devoid of drama. The verdict was split 4:1. While Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar and Justice D Y Chandrachud constituted the majority that delivered a strongly worded feminist judgment, Justice Indu Malhotra dissented .

In her dissenting judgment Justice Malhotra questioned the petitioner’s right to file the petition itself saying, “To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are ‘involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights’ 17, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith… In matters of religion and religious practises, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple.”

She further observed, “Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved person from that particular religious faith, or sect.” This was seen as both regressive and unnecessary given how it emphasis the need for an “aggrieved party”, especially one “belonging to the faith”. But aren’t hundreds of thousands of female devotees are already “aggrieved parties”?

But in a stranger argument, Justice Malhotra insisted, “In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practises followed by any group, sect or denomination, could cause serious damage to the Constitutional and secular fabric of this country.”

The entire judgment may be read here.

Background

The entry of women in the age group of 10-50 that is traditionally seen as the age during which a woman is sexually mature and fertile, has been a long standing demand of several women’s groups. Various petitions were signed to challenge the ancient ban on entry of women into the Sabarimala Temple as it violated women’s fundamental right to freedom of religion and also furthered gender discrimination. The archaic rule was upheld by the Kerala High Court empowering the priest to decide on conduct and traditions. Feminist groups argued in court that the practice is discriminatory and stigmatised women. They also argued that this traditional rule is a violation of the fundamental rights guaranteed under Article 14 of the Constitution of India.

The verdict passed by the Supreme Court exposes and concurrently rejects the age old religious practices that are entrenched in patriarchal belief systems. The Constitutional bench, barring Malhotra, has critically engaged with institutions that subordinate women and further graded inequalities. The bench delivered the judgement keeping the rights of women at its core. Justice Chandrachud, pointed out that abstinence is a state of mind and barring women’s entry on physiological ground is deemed to be Unconstitutional. These kind of arguments presented by the bench actually empower women to heave the historical burden placed on their bodies.

This landmark verdict has come consequent to the running down of Section 377 which criminalised homosexuality in the past. These subsequent verdicts underline the apex Court’s intention to engage with the issues of Gender with more seriousness and sensitivity.

https://sabrangindia.in/article/unholy-and-unconstitutional-ban-women-sabarimala

https://cjp.org.in/notion-barring-sabari-entry-archaic/

https://sabrangindia.in/article/five-judges-sc-will-now-decide-whether-women-can-enter-sabarimala

SC disposes off petition by Romila Thapar and others, turns down plea for a SIT in Bhima Koregaon case

September 28, 2018

Justice Chandrachud berates police in his dissenting judgment

The Supreme Court has rejected a plea for a Special Investigation Team (SIT) investigation into the recent activists’ arrests in connection to the Bhima Koregaon case. A Bench comprising Chief Justice Dipak Misra, and Justices A. M. Khanwilkar and D. Y. Chandrachud issued the judgement, with Justice Chandrachud offering the dissenting opinion. With this, the petition by prominent historian Romila Thapar and others has been disposed off. The interim relief has been extended by four weeks and the majority of the panel has asked the activists to seek relief from lower courts.

The judgement was written by Justice Khanwilkar for himself and Chief Justice Misra; while reading the judgement, Justice Khanwilkar said that the accused persons could not choose which investigating agencies should look into the matter. “He asserted that not a case of arrest because of difference in political organisation,” The Quint reported, adding that he “observed that the investigation officers were permitted to continue with the investigation.”

The Bench noted that the five arrested activists–Gautam Navlakha, Sudha Bharadwaj, Vernon Gonsalves, Arun Ferreira, and Varavara Rao–would remain under house arrest for the next four weeks, and could seek relief from the trial court. Meanwhile, Justice Chandrachud, in his dissent noted, “Technicalities should not be allowed to override substantive justice. The present petition not motivated by political aspects and extraordinary circumstances are present in the case.” He also targeted the Pune Police, criticising them for holding a press meet right after the arrests. “The media meet of the police regarding the investigation cast a doubt on the impartiality of the investigation, Justice Chandrachud maintained. He added that police briefing to media had become a source of manipulating public opinion and an enquiry was required against Maharashtra police officers for utilising the media for the same,” The Quint reported. Moreover, he said the Maharashtra police’s actions prompted the question of whether it could be trusted to conduct the investigation; he said that the case was fit and proper for a court-monitored SIT investigation.

The Supreme Court’s verdict comes one month after the five activists were arrested in what seemed to be coordinated raids across the country. A petition was filed by Professor Romila Thapar and others, protesting the “arbitrary” arrests and seeking a court-monitored SIT investigation. The petition sought “appropriate direction calling for an explanation from the state of Maharashtra for this sweeping round of arrests,” and said that “The use of draconian Unlawful Activities (Prevention) Act against these activists who have no history of indulging or instigating any violence is clearly malafide and an attempt to brow beat and intimidate the dissenting voices”. A Supreme Court Bench had previously held that the activists should be held under house arrest until the petition was disposed off.

The petitioners’ counsel, Dr. Abhishek Manu Singhvi had argued that the arrests blatantly violated procedure, noting that witnesses and search memos were brought in by the Maharashtra police from Pune, and were not local residents. Moreover, the police had publicly alleged that the activists were involved in a plot to assassinate the Prime Minister, but this charge was not mentioned on the FIR and remand applications. “He therefore contended that the attempt was to create a general impression that the activists were terrorists, even though there was no material on record to support such charges,” Live Law reported. Meanwhile, the Maharashtra government said it had gathered sufficient evidence to back the activists’ alleged connections to Maoist groups.

View from Bangladesh: Amit Shah and his termite politics

September 28, 2018

Once again, xenophobia got the better of reason

A new low, even for the BJP

A new low, even for the BJP Photo:REUTERS

The quality of political discourse has been in steep decline of late in India. Defense Minister Nirmala Sitharaman has accused the very reputed Jawaharlal Nehru University (JNU) of waging war against India.

And that is not all. In a recent broadside against Rahul Gandhi, who described Prime Minister Narendra Modi as a chowkidar who has turned into a chor — a sentry who is now a thief — Sitharaman let out the tweet that the entire family of the Congress president was a bunch of thieves.

“Rahul Gandhi ka khandan chor hai,” as she put it.

Gandhi’s ire at the prime minister was aroused by what has come to be known as the Rafale affair, implicating the government in a questionable purchase of 36 Rafale jets for the air force from France. The firm authorized to handle the purchase was Anil Ambani’s Reliance group. Apparently the Indian authorities attempted to depict the choice of Reliance as a French initiative.

That prompted a quick retort from Francois Hollande, who was French president in 2015 when he and Modi met in summitry, to the effect that his government had no choice over the Reliance decision. Indeed, said a statement from Hollande’s office, it was the Indians who proposed the name.

Sitharaman apart, prominent political figures in the ruling Bharatiya Janata Party have been causing tremors in the South Asian region. Amit Shah, the president of the BJP, has been speaking of his worries over “illegal migrants” from Bangladesh. In his reflections on the subject, he focuses on the tens of thousands of Bengalis from Bangladesh, in his view, who have infiltrated India and taken up jobs which could well have gone to Indians.

In an age of increasing xenophobia, all the way from Donald Trump’s America to increasingly right-wing-dominated Europe to Hindutva India, such outlandish nationalism is only to be expected. But what did shock people in India and Bangladesh was the facile manner in which Amit Shah referred to “illegal” Bangladeshis as termites who needed to be picked one by one and flung out of India.

His tone was one of fury, an attitude which Indian politicians usually reserve for Pakistanis. But describing Bangladeshis as having entered India in unauthorized manner and insulting them as termites hits a new low even for the BJP.

Our sense of history reminds us, in light of Amit Shah’s termite-related politics, of the evil which Rwanda’s Hutus perpetrated against its Tutsis in 1994. The Tutsis were referred to as cockroaches which needed to be crushed if Rwanda was to be a pure country for its majority Hutus.

What followed was predictable: Within a matter of days, as many as 800,000 Tutsis were done to death through a cheerful wielding of knives and machetes. The pogrom would not have stopped had Paul Kagame, himself a Tutsi, not entered Kigali forcefully in triumph and steered the country back to a semblance of civilized order.

In Rwanda today, no one can speak of those dark times without feeling deep pain over the cockroach approach to murder. And now, we have men like Amit Shah spot in their advocacy of a nationalism that has been a subtle but absolute rejection of the political liberalism which underscored India till the advent of the BJP administration in Delhi.

For Bangladesh, the truth today centres around factors which call for vigorous diplomacy on its part to be handled. The BJP government in Assam has already muddied the waters through coming forth with the ill-advised National Register of Citizens, a weapon which, once it has identified real Indian citizens in the state, will go after those whose names did not make it to the NRC.

Once again, xenophobia got the better of reason when the Assam authorities coolly informed the world that as many as 4,000,000 illegal migrants from Bangladesh had been identified. The implication was not hard to miss: These 4,000,000 people are now aliens, foreigners, or interlopers who cannot stay in India but will have to leave it.

And go where? Silly question, that. There is Bangladesh, which is their home, say these purveyors of the new politics playing out in India. And what if Bangladesh refuses to accept them as its own, indeed, seals its borders with Assam?

That last question has not had a response, save for some right-wing Indian politicians to suggest that they will try to convince Bangladesh into accepting these 4,000,000 people whose names are missing on the NRC. It really does not matter for the Assam authorities that among the individuals whose names have not figured on the NRC and who now face the prospect of becoming stateless are a former chief minister of the state, and a Muslim at that, and a former judge of the High Court.

Topping it all are the innumerable cases of Indians whose ancestors have lived, worked, and died in Assam for generations, and who have the documents to prove that they are not Bengalis.

Their stories have not been taken into consideration. For the BJP-wallahs in Assam, they are Bengalis from Bangladesh who have lived, married, and worked in the state in illegal manner and must now have their comeuppance.

Amit Shah’s termite politics has taken a big page out of Assam’s NRC textbook. One cannot be quite sure others in India will not follow in his footsteps.

For Bangladesh, already burdened with the weight of over a million Rohingya on its frail shoulders, the imperative today is for an initiation and practice of smart diplomacy.

With Aung San Suu Kyi and her generals cheerfully putting the finishing touches to the genocide against the Rohingyas; with Assam’s NRC stealthily working away to deport 4,000,000 of its people on flimsy grounds; and now with a leading politician of the ruling BJP coming down hard on the illegal migrants issue, policy-makers in Bangladesh have a tough job on their hands.

They need all the ingenuity and all the diplomatic skills they can muster in reassuring their people that matters will not go out of hand.

Will they do that? Can they do that?

Syed Badrul Ahsan is a journalist.

First Published on Dhaka Tribune

Ayodhya Verdict: The Dispute Is Not Settled Yet

September 28, 2018

The appeal for reference was dismissed by the Supreme Court but the majority decision allowed the same issues to be brought up in the appeals.

A bench comprising Chief Justice Dipak Misra, Justice Ashok Bhushan and Justice S Abdul Nazeer delivered their verdict on Thursday, refusing to transfer to a larger bench the issue of reconsidering the 1994 decision in Dr. M. Ismail Faruqui and Ors. Vs. Union of India and Ors. The appellants in the present case had sought for reviewing certain portions of the Ismail Faruqi decision which referred to a mosque as essential to praying practices under Islam. They alleged that the impugned portions of the Ismail Faruqui decision had a negative bearing on their civil suits in the Allahabad High Court regarding the Ram Janmabhoomi– Babri Masjid dispute.

Ismail Faruqui had determined that the State’s acquisition of the disputed property in Ayodhya through the Acquisition of Certain Area at Ayodhya Act, 1993 was constitutional after striking down section 4(3) of the Act. Section 4(3) stipulated that all suits and disputes regarding title over the property would abate. However, the Court, while dealing with the main thrust of the petition, had done so while attempting to determine the essential practices of Islam.

Justice Bhushan authored the majority judgement for himself and the Chief Justice. The majority judgement dismissed the appeal while leaving scope for the issues to be raised in the civil appeals that the petitioners were filing against the Allahabad High Court’s decision. The crux of the appellants’ arguments against the portions of Ismail Faruqui was on the Court’s interpretation of the doctrine of essential practices.

In Ismail Faruqui, the Court had said that a mosque does not constitute an essential part of practising Islam and that namaz can be offered anywhere. The majority decision in the present case, however, relied on reading this portion with the next which said that the mosque’s acquisition by the Government of India does not violate the Constitution. Thus, the majority (2:1) held that the question was never about essential practices but rather about the government’s acquisition of the disputed site. The majority decision also observed that in Ismail Faruqui the Court had made an exception to the State’s right to even acquire property deemed religious sites. The exception was based on whether the site has a particular significance to the religion in question. An example of this would be the Ka’ba, since one cannot perform Haj anywhere else.

Justice Nazeer dissented with the majority decision solely on the issues of essential practices and reference to a larger Bench. He concurred with the majority decision on all other counts. He framed four issues that in his opinion should be dealt with by a larger Bench.
“a) Whether in the light of Shirur Mutt and other aforementioned cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?

(b) Whether the test for determining the essential practice is both essentiality and integrality?

(c) Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?

(d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?”

The respondents challenged the stand of the petitioners on the basis of Res Judicata. Res Judicata is invoked to prevent continued litigation in a matter on which the final decision has already been pronounced. The respondents claimed that the decision in Ismail Faruqi had also decided the matters in the civil suits pending in the Allahabad High Court. The entire Bench disagreed with this contention, thus allowing the suits to continue in appeal. On a similar note, the majority decision left the questions raised by the appellants regarding Ismail Faruqui to be taken up in the appeals against the Allahabad High Court’s decision.

The appellants urged the Court to refer the matter as it involved a question of constitutional interpretation. This contention was dismissed by the majority decision, however, the other appeals have been listed for hearing during the week commencing on October 29.

Courtesy: Newsclick.in

Sewer Workers Deaths – The Meaning of Dalit for Bhartiya Janta Party

September 28, 2018

If Prime Minister Narendra Modi were to write about the recent deaths of sewer workers in India, the headline would be:

Some people attained moksha (nirvana) while experiencing spirituality,

Protest against deaths in sewers, photo courtesy The Hindu

In his casteist book Karmayog, he wrote that manual scavenging is a spiritual experience, hence if some people die during cleaning sewers manually, that would be attaining moksha! In a caste Hindu society this should have been a matter of joy, that even in Kaliyuga, there are still some ‘pious’ soul who could give up all moh-maya and do this punya karma! How true this depiction/ description, one feels like saying: why not make the umpteen godmen-led spiritual movements in India take this route to spiritual moksha? This would perhaps have saved the many rapist-rioter babas from arrest and they could truly do their prayaschit (atonement) in these various, very Indian jails. This is after all the real world of this ‘spiritual experience’ of manual scavenging/sewer cleaning, where ‘Moksha’ means institutional killing!

The recent deaths of sewer workers in Delhi exposed this farce. These deaths are not mere work-place related accidents, but exposed the stinking caste biases of a rotten brahmanical social order! Only in September 2018, at least 11 workers died while cleaning either septic tanks or sewers. The issue of cleaning in general, and the issue of manual scavenging, in particular, has everything to do with the caste question. Not only is the work stigmatized but the workers are stigmatized as well – that is why Ambedkar asserted that caste is not merely the division of labour, it is also a division of labourers.

When these sewer cleaning workers died in Moti Nagar, Delhi, they were not wearing any safety equipment and succumbed to death after inhaling poisonous gases. It is not a secret anymore that private companies/contractors in the cleaning business very rarely provide safety measures/equipment to their workers. Even when they provide such equipment in one out of hundred cases, they are known to charge the workers for it. This has been the pattern in many other kinds of ‘menial’ work. After the workers died there should have been a case of culpable homicide against the contractor/s, but the police simply lodged a case of ‘negligence’ (an easily bailable offence). This is certainly not a case of ‘negligence’ which pertains to some unknown ‘human-error’, but is emphatically casteist, where state structures attribute sub-human status to Dalit lives which don’t deserve the faintest attention! It is matter of utter shame that we are witnessing all this in a country which is planning to introduce bullet trains and is developing space technology to go beyond the earth’s orbit but has developed scarcely any technology to clean beneath the earth! Had it been any upper/dominant caste cleaning the human excreta, there would have been 5th generation ultra nano technology in place for some years by now!

These deaths cannot be seen in vacuum but have to be viewed in the larger context of a complex web of caste atrocities by the ruling party and their ideological head Rashtriya Swamsevak Sangh (RSS). Though caste prejudices and practices are not the preserve of the BJP/ RSS, there is something specific here that needs to be underlined. When BJP came into power in 2014, PM Modi started the Swacch Bharat Abhiyaan (clean India Campaign) with splendour, spending huge amounts of public money. There was (and still is) not any nook and corner where one can’t see the campaign’s billboard or a picture of the PM cleaning an already clean street in his expensive attire! Nevertheless, one would assume that there would be something for the historically marginalised Dalits who form the majority in cleaning work! But Swacch Bharat Abhiyaan turned out to be a farce and just a media gimmick where the government has spent more than 500 crores rupees just on advertising with nothing for the safety of cleaning workers or even to raise their minimum wages! Delhi itself has seen many cleaning workers strikes in last 4 years, due to non-payment of their salaries. This also says a lot about the insensitivity and casteist attitude of local bodies like MCD (Municipal Corporation of Delhi) which is ruled by the right-wing BJP for last 15 years.

PM Modi claimed to come from a humble tea-seller background and from a backward caste. If one takes his word seriously, then the PM must have seen tea corner shops and how difficult it is to keep them clean day and night. One would think that he would be a little more sensitive towards manual scavenging work and the stigma attached with Dalits doing this work for ages! On the contrary, the famous ‘Gujarat Model’ showed that there is no space for Dalits there, when in 2016, 7 Dalit youth were flogged by gau-rakshaks (cow vigilantes). That was just the beginning of their aggressive attempts to defend the Brahminical social order through rampant cow-vigilantism. Even as PM Modi is evoking Dr. Ambedkar selectively, caste atrocity cases are on the rise in a state which is ruled by BJP for the last two decades.

I see this as calculated violence by the present regime at the instance of the RSS to suppress Dalit assertion. The examples are numerous and from various places. Whether it is the crackdown on Bhim Army, an active Dalit group that works for education of children from poor and marginal backgrounds in Uttar Pradesh; Bhima Koregaon in Maharashtra; or arrests made after the 2nd April All India protest, the repression speaks volumes about the kind of violence being perpetrated. The dilution and confusion created around the SC/ST Atrocities Act was also done to comfort their traditional savarna vote bank which has already taken a violent turn in many parts of the country. Through such moves, they are making a public constituency for anti-Dalit sentiments. One cannot forget the institutional murder of Rohith Vemula at Hyderabad Central University which completes the circle of anti-Dalit sentiment of the present regime, which doesn’t want Dalits to have a dignified life either in work or in education.

The BJP and RSS has been trying to appropriate Dalits through the agenda of ‘samajik samrasta’ (social harmony), which is nothing more than diluting radical Dalit politics. RSS has brought in fictional history books to claim that Hindu social structure is not vertical in nature, that instead it is horizontal, where there is a division of work that has nothing to do with one’s birth! The entire Hindu social structure is based on Karma (work) and not Janm (Birth). According to RSS history, it became a vertical order during the Muslim/Mughal period when Mughals invaded Bharat-Varsha (India) and disrupted the social order! However, the Vedic claim is different from this, where Dalits and women were kept on margins. The RSS claim does no good to Dalit assertion when one learns about the quotidian violence inflicted by savarna Hindus on Dalits – for ages and continuing today – for various reasons ranging from the simple act of wearing footwear to taking water from village waterbodies, from getting formal education to marrying a upper caste girl, from taking out marriage procession to temple entry.

It is not a coincidence that the humiliation of Dalits, one of the oldest surviving oppressed groups in the world, is enormous and has been sanctioned by Manu’s Law which happens to be the Holy book of the present regime, keeping Dalits perpetually on the verge of vulnerability. However, times are changing and Dalits assertion against this casteist regime is on the rise, both by denouncing the assigned marginality as well as asserting their rights as equals. As one of the slogans from Una Struggle rightly pointed out, Gai ki poonch tum rakho, hume hamari zameen do! (Keep the cow’s tail and give us our land!).

These deaths were neither the first and (unfortunately) nor the last! Every death is a shame on Government’s claim to digital India, to swachchh (clean) India, to Swasth (healthy) India. Dalits demand dignified material experience, instead this vacuous, Modi-style ‘spiritual’ experience.

The recent protest march against the killings of Dalit workers in sewers is a call for us as a society to stand up for workers who were restoring the flow of urban life but were failed by a State which brutally denied their life in return! Because, silence is not a solution! It never was! It never will be!

The writer is a research scholar in History and is interested in the question of Caste, Wrestling and Music.

Courtesy: Kafila.online

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