There is a Concerted Attempt Today To Destroy Independent Thought: A.P. Shah (Justice, retired)

April 20, 2017

The former Delhi High Court Judge, Justice A.P. Shah delivers the M.N.Roy Memorial Lecture on Free Speech, Nationalism And Sedition

Text of the Entire Lecture

Introduction

“A parochial, selfish, narrow minded nationalism has caused so much misfortune and misery to the world. A mad and exaggerated form of this cult of nationalism is today running rampant….”

This statement made by M.N. Roy, as far back as 1942, may resonate with many even today, particularly in these times we live in.

Good evening, Justice Chalmeswar, Mr. Pancholi and distinguished members of audience. It is a privilege and an honour to be here to deliver the M.N. Roy Memorial lecture today.

M.N. Roy was a leading intellectual and thinker, and an activist philosopher, who was deeply involved in the Humanist Movement. He was critical of the fundamentals of Indian nationalism and the ideology of nationalism in general, particularly in light of the rise of Fascism and Nazism and the outbreak of the Second World War.

Roy left India during the earlier part of the First World War as a full-blooded nationalist, but changed his views after much reflection and new political experiences. He founded the Communist Party of Mexico in 1919, the first Communist Party outside Russia. During the second World Congress of Communist International, Roy helped formulate the famous Thesis on the National and Colonial Question by Lenin, although he disagreed with Lenin on the class composition of the leadership of the nationalist movement in colonies. Subsequently, on account of disagreements with Stalin, Roy returned to India in December 1930….

His return, however, was short lived. In July 1931, he was arrested on charges of sedition for the Bolshevik Conspiracy Case and tried in Kanpur Jail, without any open trial. He was sentenced to jail for 12 years, and was eventually released within six years at the age of 36. Thereafter, Roy joined the Congress, although he ultimately fell out with them on account of their reluctance to support the British to oppose fascism (which he considered to be a greater evil) in the Second World War.

After India became independent, Roy became a chief proponent of the idea of “radical humanism”, which he described as “a new humanism”. He continued writing on nationalism and on its economic and political aspects. In 1944, he drafted a “Constitution of Free India”, where he included a chapter on “Declaration of Fundamental Rights” which clearly stated that a “right to revolt against tyranny and oppression is sacred”.

The Situation Today

Roy’s ideas thus covered a broad range of topics, including speech and dissent. In fact, that is exactly why I have chosen to speak on Nationalism, Free Speech and Sedition for this memorial lecture.

Today, we are living in a world where we are forced to stand for the national anthem at a movie theatre, we are told what we can and cannot eat, what we can and cannot see, and what we can and cannot speak about. Dissent, especially in the university space, is being curbed, and sloganeering and flag raising have become tests for nationalism. We have a 21-year old University student who is subject to severe online hate, abuse, and threats, only because she dared express her views.

In any society, at any given point of time, there will always be people holding divergent views. Such views are integral and inevitable in a healthy, functioning democracy. Nowhere has this been better expressed than by the judgment of the Bombay High Court in F.A. Picture International v CBFC, where the Court said:

“History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon”

Unfortunately, however, our institutions of learning are under attack today and there is a concerted attempt to destroy any independent thought. Today, sadly, in this country I love, if anyone holds a view that is different from the government’s “acceptable” view, they are immediately dubbed as “anti-national” or “desh-drohi”. This marker of “anti-national” is used to intimidate and browbeat voices of dissent and criticism, and more worryingly, can be used to slap criminal charges of sedition against them.

All these factors have led me to choose the present topic to generate further discussion and debate. I think it is all the more important to discuss and talk about nationalism.

What is Nationalism?

At the very outset, I would like to caution against, what the celebrated Nigerian author Chimamanda Adichie terms, the “danger of a single story” – the danger of understanding an idea only from a single perspective and ignoring the diversity of views present. Mridula Mukherjee points out the nuances in the word “nationalism” and how it encompasses the ideas of progressive nationalism, a revolutionary pro-people nationalism, and a regressive and jingoistic nationalism. Hitler’s nationalism, after all, was very different from Gandhi and Nehru’s nationalism. The European conception of nationalism, developed from the days of the Treaty of Westphalia and in the age of imperialist expansion, focused on the enemy within, whether the Jew or the Protestant. In contrast, the Indian conception of nationalism, developed as an opposition to an external imperialist British state, was more inclusive in uniting the people against them. This was then, an “anti-colonial nationalism, where the primary identity of an Indian was not their religion, caste, or language, but their unity as equals in their demand for freedom. It is thus important to remember that there is no single overarching “right” conception of nationalism.

How then did M.N. Roy understand nationalism? In Roy’s view, nationalism was representative of the desires and ambitions of a group of people within a certain geographical area, as opposed to people uniting on the basis of class. Nationalism thus emphasised the placing of one’s country’s interest over the interest of the rest of the world. There was a time in the 19th century, when countries were still isolated from each other, when nationalism was a historic necessity, under whose banner people came together and humanity progressed. However, he believed, it had now become a selfish, narrow-minded “antiquated cult”, and the world should progress towards internationalism and international cooperation. The ambitions of different nations began to conflict with each other, contributing to an exaggerated and irrational form of nationalism, which manifest itself in the rise of Fascism and Nazism, eventually leading to the Second World War. Nationalism, in Roy’s eyes, had thus become a synonym for revivalism, whose advocates were consigned to glorify the past and advocate for a return to the bliss of the middle ages and a simpler life.

Rabindranath Tagore, the composer of the Indian national anthem, had even more radical views on nationalism. He believed that a fervent love for the nation represented a conviction of national superiority and a glorification of cultural heritage, which in turn was used to justify narrow-minded national interest. Writing in 1917, Tagore said, “when this organisation of politics and commerce, whose other name is the Nation, becomes all powerful at the cost of the harmony of higher social life, then it is an evil day for humanity.” He thus cautioned against such an exclusionary and self-aggrandizing form of nationalism that was based on a hate culture against an imagined or actual Other, who was viewed as the enemy.

On the other hand, the revivalists focus on the glory of ancient India, going back to the Aryan race as the building block of the Indian civilisation. This takes the form of cultural nationalism, where anyone celebrating “Western” festivals such as Valentine’s Day or even couples merely holding hands are to be ostracised and attacked. As religious nationalism, it endorses the two-nation theory, which envisages a nation under Hindu rule, a Hindu rashtra in Akhand Bharat (a United India). This is premised on the belief that only a Hindu can claim the territory of British India as a land of their ancestry, i.e. pitribhumi, and the land of their religion, i.e. the punyabhumi. As Vinayak Damodhar Sarvakar propounded, “Hindu Rashtra (state), Hindu Jati (race) and Hindu Sanskriti (culture).” Muslims and Christians are viewed as foreigners, who are not indigenous to the territory of India, and whose religion originated in a separate holy land.
At this point, I would like to share my personal background. My maternal grandfather was the President of the Hindu Mahasabha in the 1940s, and the first literature that I ever encountered in my school days was Sarvarkar’s writings. Writing in 1938, when Hitler was on the rise, Sarvarkar justified Hitler’s policies towards the Jews and driving them away from the motherland. He said, “A nation is formed by a majority living therein. What did the Jews do in Germany? They being in minority were driven out from Germany.” I am not sure whether his views changed after World War 2, and when the extent of the holocaust came to be known. Sarvarkar further believed that minority groups must lose their separate existence and separate identity if they want to live in India.

Roy, unsurprisingly, was critical of such views. While discussing the declaration made by the President of the Hindu Maha Sabha that “the majority is the nation”, Roy said that it sounds quite in “tune with formal democracy”, but in reality “particularly in the prevailing atmosphere of Indian politics, it means that in a nationally free India the Muslims, constituting nearly 1/3rd of the population, will have no freedom”. He was thus against removing an imperialist regime and replacing it with a nationalist regime, which would continue to deny real freedom to most of the Indian people.

It is important to remember that both Tagore and Roy wrote in the context of the First and Second World War respectively. They had thus, witnessed first hand, how the pursuit of the glory of the nation had resulted in the great wars, and betrayed the ideas of liberty, equality, and fraternity of the French Revolution. Today, in independent India unfortunately, having such views is almost blasphemous and perhaps seditious.

India is a diverse country and people hold different views about nationalism, the idea of India, and our place in the world. We must respect these differences, not silence those who hold a different view on nationalism and patriotism for the country. Elevating only a single view – one that idolises the nation and staunchly rejects any internal or external criticism – will only polarize citizens against each other.

At the end of the day, it is important to question, what is the defining characteristic of a nation – is it the territorial boundary or the collection of people that is a country’s defining feature. Our Constitution starts with a solemn declaration of “We, the people of India…” In this context, is being anti-national equivalent to being anti-Government or is the hallmark of an anti-national that they are against the interest of the people, especially the minorities and the depressed classes? Can an entire University and its student body be branded “anti-national”?

Our current state of affairs is especially sad when we consider that the freedom struggle gave us a country and a Constitution that was committed to the ideals of democracy, free speech, civil liberties, and secularism. Unlike Pakistan, religion is not the founding basis of our nation. Our right to free speech and expression is not a gift or a privilege that the Government bestows on us; it is our right, guaranteed by the Constitution of India, and won after decades of struggle and sacrifice by the people of India.

1. Free Speech…

Free speech and the Constitution

Writing in Young India in 1922, Gandhi said, “We must first make good the right of free speech and free association before we make any further progress towards our goal. We must defend these elementary rights with our lives.”

Gandhi’s views were based on his belief that liberty of speech is unassailed even when the speech hurts and that “freedom of association is truly respected when assemblies of people can discuss even revolutionary projects.”

Gandhi was not alone in his ideas. Our early nationalist leaders too, from Raja Ram Mohan Roy to Bal Gangadhar Tilak, made the grant of civil liberties to ordinary Indians an integral part of the national movement.

These very ideas were incorporated into the Constitution by the Constitution drafters. They understood that while the freedom of worship is part of democracy and is a fundamental right, the edifice of modern democracy has to be the freedom of thought and expression. Our Constitution is drafted as a positive, forward-looking, inclusive document that binds the aspirations of all Indians. The Preamble expresses the resolve of the people to constitute India into a sovereign, socialist, secular, democratic republic securing justice, liberty, equality, and fraternity of its citizens. This achievement is all the more noteworthy if we consider, as Fali Nariman recently pointed out, that in a Constituent Assembly of 299, 255 members (85%) were Hindus. Despite being in a massive majority, the Constitution drafters took pains to protect the interests of the minority, the oppressed, and the dissenters.

Having been given a magnificent and inclusive Constitution, it then fell on the Supreme Court to protect the rights guaranteed therein, especially the right to free speech and expression.

Free speech and the Court

The Supreme Court has repeatedly emphasised the value of free speech, noting that the freedom of speech and expression lies at the foundation of all democratic organisations, inasmuch as free political discussion facilitates public education and enables the proper functioning of the processes of government. The Court has emphasised the function of free speech as promoting autonomy and self-fulfilment, maintaining truth, and performing the function of a watchdog. It has also given express recognition to the value of free speech in a “market place of ideas”, by quoting the famous dissent of 1919 of Justice Holmes in Abrams vs. United States:

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” (Emphasis supplied)

The value of free speech is thus, both intrinsic and instrumental, and has consistently been linked to democratic ideals. For example, the censorship of the play “Mee Nathuram Godse Boltoy”, which was extremely critical of Mahatma Gandhi was not permitted by the Bombay High Court. In an insightful judgment in Anand Chintamani Dighe vs State Of Maharashtra, the Court highlighted the importance of respect for, and tolerance of, a “diversity of viewpoints”, as being essential to sustain a democratic society and Government. The Court further went on to state, “Popular perceptions, however strong cannot override values which the constitution embodies as guarantees of freedom in what was always intended to be a free society.” In the same vein, the Supreme Court in Director General, Doordarshan vs Anand Patwardhan held in 2006 that the State cannot prevent open discussion, regardless of how hateful such discussion was to the State’s policies.

The importance of dissent is best understood by the Supreme Court’s view in S. Rangarajan v P. Jagjeevan Ram that “In a democracy it is not necessary that everyone should sing the same song..”.

It has thus long been understood that free speech has to be countered by more speech; that the response to criticism is not to shut it down, but to engage with, and respond to, the speaker. Moral vigilantism, as Upendra Baxi rightly recognises, has no place in our Constitutional polity and democracy.

Free speech, though, is under attack. The joy over the striking down of Section 66A of the IT Act in Shreya Singal was soon replaced by despair over the Supreme Court’s decision to uphold the constitutionality of criminal defamation in Subramaniam Swamy v UOI and its “order” directing all cinema halls across India to play the national anthem before the start of a film, and requiring the audience to stand up as a “show of respect”. I shall discuss the National Anthem order in further detail later on in my speech.

Just last month, in relation to the comments made by Azam Khan regarding the Bulandsher gang rape, the Supreme Court raised the question of whether the right to free speech under Article 19(1)(a) is to be controlled singularly by the language under Article 19(1)(a) is to be controlled singularly by the language under Article 19(2) or is it also impacted by the expansive right to life and personal liberty under Article 21 of the Constitution. The answer to this question will have a profound impact in restricting the scope of Article 19(1)(a) and undermine our Constitutionally guaranteed right.

Even the Bombay High Court, whose decisions I have referred to above, has on occasion failed to protect the right to free speech. Recently, it constituted a three member committee (comprising of two lawyers) to give a report on the scenes in the Jolly LLB-2 it found “objectionable”, because it was prima facie of the view that certain scenes – those involving a cowering judge and some dialogue between the lawyers – were in contempt of the judiciary and the legal profession. Mind you, this was a movie where the CBFC, i.e. the Censor Board, has given the requisite certification for its release. It was also a case where the High Court entertained the writ petition (later converted to a PIL) based only on two trailers and some photographs! As Justice Lodha had said, while dismissing a similar petition when Jolly LLB-1 released, if the Petitioners don’t want to watch the movie, no one is forcing them. The Bombay High Court’s order, the report of the three member “committee”, and the proximity of the release date, essentially forced the producers and director of the movie to “compromise” and undertake to make the requisite modifications and deletions to the objectionable scenes.

I only hope that these judgments are aberrations in an otherwise glorious history of the Indian Judiciary in protecting and promoting the Constitutionally guaranteed right to free speech and expression.

However, free speech has to be protected institutionally – not only by the Courts, but also by statutory institutions and the media. Unfortunately, we read about reports where the CBFC, our “censor board” has refused to certify a movie such as Lipstick under my Burkha, because it was “lady oriented”, contained “sexual scenes, abusive words, audio pornography”; deleted the line “mann ki baat” from the upcoming movie Sameer because that is the name of the Prime Minister’s radio show; and demanded that the Hanuman Chalisa be muted from a scene in Phillauri, because it failed to ward off the ghost. How can you forget that in Udta Punjab, a Adult-only certified movie, the Censor Board demanded 94 cuts (based on 13 suggestions), including deleting the name “Punjab”, deleting certain abuses and deleting the words “Election”, “MP”, and party worker”. If this is not an assault on the freedom of speech and expression, then I don’t know what is.

The freedom of the press is part of the freedom of speech guaranteed under Article 19(1)(a). This is because a free press is essential to disseminate different views, and promote democratic ideals. More importantly, today, when mass-communication and digital media have become prevalent, the media assumes an even greater importance in playing the role of the opposition and checking facts. In fact, no other institution wields as much power and influence on public opinion as the media. However, in recent times, a section of the media, through its biased and one-sided reporting, has unfortunately aided in the restriction on free speech. A news channel airs false and doctored footage, while others openly flame the fans of this patriotism and anti-national debate. It is ironic that the media, which played a critical role in asserting its right to free speech during and after the emergency, and in the process helped develop our Article 19(1) jurisprudence, is now the institution that is compromising and challenging the same freedom of speech of the dissenters today.

We also have social media, where online trolls and threats of rape and murder are regularly made against people supposedly making anti-national statements. I am left to ask myself, which part of Indian culture permits or promotes the making of such statements threatening a girl with rape or murder. Who are these people on Twitter and other social media, who take comfort in their anonymity to make such aggressive threats against individuals?

Having discussed the meaning of nationalism and the importance of free speech in some detail, it is appropriate for me to now turn to examine issues that are raised by nationalistic fervour, whether sedition, the national anthem, the attack on universities, and cow slaughter. A common theme linking these topics is the idea of “cultural nationalism”, where cultural conformism is being foisted upon the entire nation, without consideration of people’s personal choices, values and regional differences.

Nationalism and Sedition

Sedition is a word, almost everyone in India has heard of today, because of the events at JNU last year. Historically, our conversation around sedition centred around British injustice in convicting and sentencing Tilak and Gandhi to prison for their publication of allegedly seditious material. Tilak, before his arrest in 1908, reportedly told a police officer, “The government has converted the entire nation into a prison and we are all prisoners. Going to prison only means that from a big cell, one is confined to a smaller one.” Gandhi, in 1922, pleaded guilty to the charge of sedition, stating that he was proud to oppose a Satanic government.

These stories are shared with bristling outrage about the British misuse of this law and pride with which our freedom fighters opposed them. More than 90 years later, however, we are still grappling with the fact that the crime of sedition was invoked against a group of 20-something University students for doing what students in a campus should feel entitled to do – raise slogans, debate, disagree, and challenge each other on complex, political issues that face the nation today.

Sedition laws were enacted around the 17th Century in England in a bid to protect the Crown and the State from any potential uprising. The premise was that people could only have a good opinion of the government, and a bad opinion was detrimental to the functioning of the government and the monarchy. It was subsequently introduced in the Indian Penal Code in 1870.

The first major case was when Bal Gangadhar Tilak was brought to trial for sedition in 1897 for his lectures and songs at the Shivaji Coronation Ceremony. Given that these speeches and songs made no mention of overthrowing or disobeying the government, the Court widened the interpretation of sedition by equating “disaffection” to “disloyalty,” and including within it hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government. This interpretation became a part of the legal text, when Section 124A was amended to add the words “hatred” and “contempt” alongside “disaffection”, which was defined to include disloyalty and feelings of enmity. Thereafter, in 1908, Tilak was again charged with sedition for the publication of a critical article in his magazine Kesari. He was held guilty and sentenced to six years imprisonment by the Bombay High Court, which ruled that no one was permitted to “attribute dishonest or immoral motives to the Government.”

The next landmark sedition case pre-independence was Gandhi’s trial for the offence of sedition for his articles in the Young India magazine. The trial itself was remarkable for his decision to plead guilty to the charge of sedition and Justice Broomfield’s reluctance to sentence him, because he did not believe that Gandhi deserved to be charged with sedition in the first place.

Interestingly, during the Constitution Assembly debates, there were two attempts made to include sedition as a ground for restricting free speech. Eventually, however, due to trenchant opposition by members of the Constituent Assembly and their fear that sedition would be used to crush political dissent, it was dropped from Article 19(2) and the Constitution. These actions of the framers were expressly noted by the Supreme Court in 1950 itself, in its decisions in Brij Bhushan and Romesh Thappar.

The decisions of the Supreme Court prompted the First Amendment to the Indian Constitution, wherein Article 19(2) was amended and “undermining the security of the State” was replaced with “in the interest of public order”. However, while speaking in Parliament, Nehru clarified:

“Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” [Emphasis supplied]

Finally, in 1962, a Constitution Bench of the Supreme Court had the chance to authoritatively decide on the constitutionality of Section 124A of the IPC in Kedarnath Singh v State of Bihar in light of the “public order” restriction in Article 19(2). It had to grapple with conflicting decisions of the Punjab and Patna High Courts on the constitutionality of sedition. The Court upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.” It distinguished these acts from “very strong speech” or the use of “vigorous words” which were strongly critical of the Government.

The final case that I would like to discuss is the 1995 decision of the Supreme Court in Balwant Singh v State of Punjab, where it acquitted the persons who had shouted slogans such as “Khalistan zindabaad, Raj Karega Khalsa” outside a movie hall a few hours after Indira Gandhi’s assassination on charges of sedition. Instead of simply looking at the “tendency” of the words to cause public disorder, the Court held that “raising of some lonesome slogans, a couple of times… which neither evoked any response nor reaction from anyone in the public” did not amount to sedition, for which a more overt act was required. The Court took cognizance of the fact that the accused had not intended to “incite people to create disorder” and that no “law and order problem” actually occurred.

It is through this lens that one should view the JNU incident. The law, as we saw above, is quite clear on the distinction between strong criticism of the government and the incitement of violence, with only the latter being related to sedition. Thus, regardless of whether the JNU students’ slogans were anti-national, hateful, or an expression of contempt and disdain against the government, as long as they did not incite violence, it does not get covered under sedition. As Upendra Baxi reminds us, we should remember the distinction between “constitutional patriotism” (and fidelity to the Constitutional purpose) and “statist patriotism” (what Gandhi called “manufacturing affection for the state”). Keeping this in mind, I would like to express my anguish on the language of the Delhi High Court’s bail order and the unnecessary invocation of patriotism and nationalism.

Gandhi said, “Affection cannot be manufactured or regulated by the law. One should be free to give full expression to their disaffection unless it incites violence.” This, as we have seen above, is in fact the standard of Kedar Nath. Unfortunately, the broad scope of Section 124-A allows it to be used by the State to go after those who challenge its power, whether it is the JNU students, activists such as Hardik Patel and Binyak Sen, authors such as Arundhati Roy, cartoonists such as Aseem Trivedi, or the villagers of Idinthakarai in Tamil Nadu protesting against the Kudankulam Nuclear Power Plant. These examples are demonstrative of the misuse of the provision. The law is clear that mere sloganeering is not enough, and has to be accompanied by a call for violence. However, at the stage of registering the FIR and initiating criminal proceedings, the question of the interpretation of the section in line with the Supreme Court’s jurisprudence, does not arise. Thus, sedition charges are easily slapped, but seldom stick, but cause immense harassment in the process. Even if one is eventually acquitted of sedition, the process of having to undergo the trial itself is the punishment – and more importantly, the deterrent against any voice of descent or criticism.

The enforcement or the threat of invocation of sedition constitutes an insidious form of unauthorised self-censorship by producing a chilling effect on the exercise of one’s fundamental right to free speech and expression. That is why the law needs to be repealed. However, it is unlikely that any government will give up this power, and it is therefore left to the courts to re-examine the constitutionality of sedition. It is not enough to expect an acquittal by the courts after 4-5 years; we need to stop the misuse of the law to silence dissent by removing the source of the power itself.

Interestingly, England, from whom we have inherited the offence of sedition, recently repealed the offences of sedition and seditious libel, along with defamatory libel, and obscene libel. In doing so, the Justice Minister, Ms. Claire Ward observed in 2009,
“Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today…. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom…Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”

Nationalism and the University Space

It seems that February is the season for targeting dissent. If it was JNU and azaadi in 2016, this February saw the Ramjas-DU protests. University spaces are traditionally meant to be spaces for dissent, where students engage and challenge each other and the dominant narrative, in an attempt to develop their own principles and beliefs. In fact, the best Universities in the world are those that champion free thinking and disagreement amongst their students, faculty, and administration. However, this space is under challenge in India.

Just think about the events that have transpired over the last couple of years that have sought to undermine academic institutions and academic freedoms – from the backlash against University of Hyderabad’s Rohit Vemula’s mother, declaring that she was not a “dalit”; to the charges of sedition levelled against JNU students; to protests at Ramjas/DU about the organisation of a seminar; and the outcry against an undergraduate student’s tweet.

As part of the #FightbackDU campaign that was launched in response to the Ramjas protests, a 21 year old LSR student, Gurmehar Kaur, tweeted a photo “I am not afraid of ABVP”. A video, where she held a placard saying “Pakistan did not kill my father, war did” went viral and became the subject of intense national discussion and debate, with cricketers, actors, and politicians all joining in to criticise the girl. In fact, she was subject to such hostility, threats, and violence, especially online that she had to get security and leave Delhi. Have we really reached such a stage of insecurity that a 21 year old’s views have to be met with such backlash? That the Union Home Minister for the State has to tweet, “Who is polluting this young girl’s mind?” The guarantee of freedom of speech rings hollow, if the State cannot guarantee freedom after speech.

The inaction of State institutions like the police in light of the violence and bullying by certain groups leads to a fear psychosis amongst students. Unless some remedial action is taken, we will produce an entire generation of students who will never have been encouraged to question the dominant ideas and encouraged to think differently. This will influence not just the nature of democratic citizenship, but will have a direct impact on the innovation and creative thinking that are necessary for economic progress of a nation.

Nationalism and patriotism

Before concluding, I would like to talk about two more issues connected to free speech and nationalism. The first relates to the Supreme Court’s national anthem order requiring all movie-goers to “stand up in respect” for the national anthem before before the start of a movie in order to “instill a feeling within one a sense of committed patriotism and nationalism”. The order of the Court, which seems a little short on reasoning to help understand how such an interim order was passed befuddles, and seems contrary to the spirit of the Constitution and past precedent, Bijoe Emanuel, which made it clear that we cannot be forced to sing the anthem. It is important to remember that the right to free speech and expression also includes the right not to speak or express ourselves. However, under the guise of “law”, the Court has now stepped in and restricted our fundamental rights.

As Pratap Bhanu Mehta points out, the order fails to understand a distinction fundamental to liberal democracy – everything that is desirable or makes for a better citizen does not, and should not, be made compulsory. In fact, making something compulsory undermines the very meaning of that action and the respect that is normally accorded to it. It is a form of, what I would call, “conscripted nationalism”. Just as joining the Army is a noble career path, our lawmakers have rightly decided that India will not follow conscription, presumably because they believe in the liberty of the individual and the right to choice. Unfortunately, the Judiciary thought otherwise.

I know of many people who considered themselves patriotic and would always stand when the national anthem was played. But the Supreme Court’s order has fundamentally changed their relationship with the anthem and has resulted in undermining its import. The order may have ensured that cinema audiences throughout are now standing before the national anthem plays, but what the Court fails to have realised is that such an action is a performance, motivated by fear of being beaten up, rather than genuine respect and love for the anthem. In the end, it has actually undermined patriotism amongst fellow Indians.

Similarly, preventing people from eating the food they want and effectively forcing a life choice on them undermines any feelings of nationalism and unity, and is another insidious form of cultural nationalism. Recently, Mohan Bhagwat called for a national law against cow slaughter. But we must be wary of forcing a single ideology or way of living on the entire country, especially a country as diverse as India, where States such as Kerala, or the various states in the North East consider beef a staple part of their diet. One reads multiple reports about slaughterhouse crackdowns in UP, crackdowns that are primarily targeted at Muslim butchers, leaving lakhs of people with fear, but without stable employment. We also recently had the horrific incident in Una where seven Dalits were beaten by cow-vigilantes for alleged cow slaughter. And how can we forget the lynching of Akhlaq, who was suspected for allegedly storing and consuming beef, but where the first thing that was sent for forensic examination was not his body, but the food that is in the fridge. Is this what the value of human life comes to?

Nationalism, when it devolves into such a form of cultural nationalism, is disturbing. I am personally very proud of being an Indian and of the Indian culture. My wife and I practice Yoga. But I am not comfortable with the drive to make Yoga compulsory, to be foisted upon everyone, as if that were a badge of nationalism and Hindu pride.

Enforced nationalism cannot promote true culture. When a culture is arbitrarily prescribed and foisted, freedom of the creative spirit of man disappears or is suppressed. Only free souls can create abiding cultural values; they may physically belong to one particular class or geographically to a particular country; spiritually, they transcend all social and territorial limitations.

Conclusion
It has long been known that suppressing and censoring people’s speech will not remove the underlying simmering sentiment. In fact, it will only serve to alienate that section of the population further. If we have to give true meaning to the Prime Minister’s promise of “sabka saath, sabka vikaas”, then we must celebrate not only those who profess affection for the State, but also those, who believe that change is necessary or injustice is being committed. We cannot have an Orwellian situation, where the government speaks in one language, but then fails to walk the talk. After all, as Desmond Tutu said, “if you are neutral in situations of injustice, you have chosen the side of the oppressor.”

The strength of a nation is not gauged by the uniformity of opinion of its citizens or a public profession of patriotism. The true strength of a nation is revealed when it does not feel threatened by its citizens expressing revolutionary views; when there is a free and open press that can criticise the government; and when citizens do not resort to violence against their fellow citizens, merely for expressing a contrary view. That is when we will have achieved liberty of speech. And that is when we will be truly free.

I would like to end this speech with a short poem “Speak” from one of my favourite poets, Faiz Ahmed Faiz:

Speak, for your lips are free;
Speak, your tongue is still yours
Your upright body is yours
Speak, your life is still yours

Speak, this little time is plenty
Before the death of body and tongue
Speak, for truth is still alive
Speak, say whatever is to be said

Conspiracy Behind the Demolition of the Babri Masjid: Salient Points of the SC Decision

April 20, 2017

“Article 142(1) of the Constitution of India had no counterpart in the Government of India Act, 1935 and to the best of our knowledge, does not have any counterpart in any other Constitution the world over. The Latin maxim fiat justitia ruat cælum is what first comes to mind on a reading of Article 142 — Let justice be done though the heavens fall,” the bench said.

On April 19, 2017 a bench of Justices P C Ghose and Rohinton F Nariman said the Supreme Court was convinced it must use its power under Article 142 to do complete justice in the matter and club the trial of Advani and others with scores of kar sevaks, who are being tried at a special court in Lucknow, so that a judgment is delivered within two years.

The entire text of the judgement may be read here.

“In the present case, crimes which shake the secular fabric of the Constitution of India have allegedly been committed almost 25 years ago. The accused persons have not been brought to book largely because of the conduct of the CBI in not pursuing the prosecution of the aforesaid alleged offenders in a joint trial, and because of technical defects which were easily curable, but which were not cured by the state government,” the bench said.

In doing so the Supreme Court revive the criminal conspiracy charges against the senior leaders of the BJP and after shifting their trial from Rae Bareli, also ordered restoration of charges against Rajasthan Governor Kalyan Singh and eight others in connection with the case but exempted Kalyan Singh from prosecution on account of the constitutional immunity he enjoys as Governor.

“Kalyan Singh, being the Governor of Rajasthan, is entitled to immunity under Article 361 of the Constitution as long as he remains Governor of Rajasthan. The Court of Sessions will frame charges and move against him as soon as he ceases to be Governor,” the bench said as it allowed a CBI appeal against the dropping of conspiracy charges against the veteran BJP leaders.

Following are the salient points of the order:

The Additional Sessions Judge (Ayodhya Matters) has been directed to frame additional charges of criminal conspiracy against Advani, Joshi, Bharti, Vinay Katiyar, Sadhvi Rithambara and Vishnu Hari Dalmia within four weeks. Accepting submissions by senior lawyer Kapil Sibal and advocate M R Shamshad, who represented Haji Mehboob, one of the original petitioners in the Ramjanmabhoomi-Babri title suit case, the court also directed the sessions judge to conduct their trial on a day-to-day basis from the current stage and finish it in two years while allowing accused to recall crucial witnesses wherever required.
“There shall be no de novo (fresh) trial. There shall be no transfer of the judge conducting the trial until the entire trial concludes. The case shall not be adjourned on any ground except when the Sessions Court finds it impossible to carry on the trial for that particular date. In such an event, on grant of adjournment to the next day or a closely proximate date, reasons for the same shall be recorded in writing,” the bench held. Besides, the top court gave liberty to all the parties, including the prosecution, complainants and witnesses, to approach it directly if its “directions not being carried out, both in letter and in spirit”.
What is key to the judgement is to note that the addition of conspiracy charges do not enhance the maximum punishment of five years in jail, as prescribed under the alleged offences that mainly related to promotion of enmity between different groups on the ground of religion. But, the shifting of the trial to a sessions judge takes away one right of appeal from the accused since the leaders were being tried by a magisterial court in Rae Bareli and, therefore, they could move the sessions court against the magistrate’s order at first instance. Their appeal would now lie before the High Court.
There are two main FIRs registered in connection with the demolition — one each in Lucknow and Rae Bareli. In Lucknow, the accused, chiefly the kar sevaks, face charges of demolition whereas those in Rae Bareli, including Advani and others, were being tried for allegedly instigating the crowd through speeches.
Seeking a joint trial, the CBI had in October 1993 filed a consolidated chargesheet against both set of accused at Lucknow but the cases could not be clubbed for want of sanction from the High Court before setting up a special court to try both FIRs as one case. In 2001, the Allahabad High Court affirmed the decision that the government’s notification was invalid due to lack of approval from the High Court.
Since no new notification was issued by the state government after this judgment, the Lucknow court dropped proceedings against 21 persons, which included Advani and Kalyan Singh. While Advani and seven others continued to face trial at Rae Bareli where there was a separate FIR against them for inciting the mob from a dais near the site of the incident on December 6, 1992, 13 others, including Kalyan Singh, were let off completely since no charges were pressed separately against them at Rae Bareli after their exoneration in Lucknow.
The CBI appealed against the HC order, and sought trial of all 21 accused under criminal conspiracy charges, apart from other offences. Allowing the plea for a joint trial, the bench said that the evidence for all these offences is almost the same and these offences, therefore, cannot be separated from each other.
It maintained that the CBI’s failure to challenge the 2001 HC order on invalidation of the notification on the joint trial “has completely derailed the joint trial envisaged and has resulted in a fractured prosecution going on in two places simultaneously based on a joint chargesheet filed by the CBI itself”. The court turned down arguments by senior advocate K K Venugopal, who appeared for Advani and Joshi, that the court could not exercise its authority under Article 142 to take away rights of a litigant when there are substantial provisions on the particular subject.
“Article 142(1) of the Constitution of India had no counterpart in the Government of India Act, 1935 and to the best of our knowledge, does not have any counterpart in any other Constitution the world over. The Latin maxim fiat justitia ruat cælum is what first comes to mind on a reading of Article 142 — Let justice be done though the heavens fall,” the bench said.

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Why Kashmir’s students are facing off against the security forces

April 20, 2017

Violent crackdown at Pulwama Degree College triggers demonstrations across the Valley.

Image: Reuters

Pulwama Degree College in South Kashmir bears the marks of a place touched by conflict. The telltale stones and shattered glass seen in so many parts of the Valley have arrived here as well. It is deserted, apart from a lone gatekeeper. Opposite the building marked “IT Centre” is scrawled the legend, “Love you Burhan”.

The college has been closed since Monday. On Saturday, this desolation had been filled with students and security forces, flying stones, tear gas fumes and pellet showers. About 54 students were injured in the clashes that day. Some of those seriously wounded had to be shifted to hospitals in Srinagar.

Saturday’s violence has galvanised campuses across the Valley. The Kashmir University Students’ Union had called for protests in all colleges and universities on Monday in solidarity with the students of Pulwama. Students in Baramulla and Sopore towns in the north, Anantnag and Tral in the south and Srinagar in central Kashmir clashed with security forces. About 70 more students were injured in these incidents, many of them in Srinagar. Among the critically injured are two students with brain injuries.

Graffiti on a wall at Pulwama Degree College. Image credit: Ipsita Chakravarty

On Tuesday, universities, colleges and high schools remained closed, while protesting students in Banihal blocked the Jammu-Srinagar highway, the Valley’s primary supply line. A dour silence descended on Pulwama town, which had gone into shutdown mode, with shops closed and streets sparsely populated. Naveed Dar, a second-year arts student at Pulwama Degree College, had limped to a dim, curtained tea shop in town. This was the first day he could walk after being beaten up by security forces.

“I thought these were stories, these things don’t happen,” Naveed Dar said, bemused. “We came to see the real face of the forces.”

On Wednesday, schools opened but colleges and universities stayed shut.

A skirmish

It started last Wednesday when two armoured Army vehicles known as Caspers entered the Pulwama college campus, said Taufiq Farooq, a first-year arts student who was hit by pellets that day. “You know the situation here, students started pelting stones and the Caspars went back,” he recounted. “Then there was a protest outside the administration block; why had an Army vehicle entered the college?”

According to a statement by Army spokesperson Rajesh Kalia, soldiers had gone to visit the administration to talk about a “painting, drawing competition” in the college. But students did not know the purpose of the visit. “Students thought they were going to raid or pick up students,” Farooq explained. This is common after there is stone-pelting. Anything can happen any time.”

Two days later, Farooq said, a security cordon was laid right outside the college’s gates, and not 200 metres away as the police claimed. According to another student Rayees Mohammad Bhat, however, the cordon was farther away, near the toll post leading into the town, and it was a regular exercise.
Either way, the college students started pelting stones just outside the gate. “They used tear gas from the start,” said Farooq. “After 10 or 15 minutes, they started using pellets.” What followed next, according to Farooq’s account, was a thrust and parry between the students and the security forces that lasted nearly four hours until the evening.

The security forces’ vehicles retreated at first, then they drove up to the gate and started firing shelling into the college, Farooq continued. “They must have called the police station because two Rakshaks [armoured police jeeps] then entered the college premises and stopped at a barricade near the gate,” he said.

Taufiq Farooq shows his pellet injuries. Image credit: Ipsita Chakravarty

Trapped in a stone-pelting crowd, they first fired sound shells, then they stepped out of the Rakshaks and started shelling and spraying pellets. Angry students managed to chase the vehicles out of the campus.

Some students, thinking they had driven away the forces, moved into the administration building to protest against the incursion. Then the police and the CRPF returned with bunkers and reinforcements. “Stone-pelting inside the college had stopped then,” said Farooq. Yet, students at the administration block came under heavy shelling. Though they retaliated with stones, they were forced into classrooms.

“I went into a classroom after I got injured,” said Farooq, whose shoulder and upper arm are still peppered with pellet scars. As pepper and tear gas clouded the classrooms, many girls fainted. When vehicles carrying the injured students tried to make their way to the hospital, boys were pulled out and beaten up, he alleged.

To the library

There were students who did not join in the clashes. Naveed Dar, for instance, said he had taken cover in the geography department building and then the library, where he saw girls fainting from the gas fumes. Then the security forces also entered the library.

“Some teachers came and said nothing will happen, come out,” Naveed Dar recalled. “We were leaving but then the girls were beaten up so we went back in.”

They tried to go out again, twice. The first time, the girls were sent out unharmed but the boys who followed them were beaten. The second time, the security forces said they could all come out, nothing would happen, Naveed Dar continued.

“When one boy came out, they beat him up and he fell down,” he said. “Then they said run now, and we ran. Whoever came in their way was beaten. I was hit twice in the legs and once on my back.”

Naveed Dar with Taufiq Farooq. Image credit: Ipsita Chakravarty

After that, he made his way to the principal’s office, which had been vandalised by the students, to find crying girls crouching there. Then the teachers told them to get into a college bus, Naveed Dar said, and that’s how they managed to escape.

Shahbaz Ahmed Dar, recovering at a Srinagar hospital, said he was attending class when he saw girls being sprayed with tear gas shells by the security forces outside. When he went out to protest, they beat him up. He now has a fractured knee and shoulder injuries.

‘Mild force’

Pulwama Degree College Principal Abdul Hamid was not available for comment. But when contacted by local newspapers a couple of days ago, he had said, “ I too rushed towards the gate and saw two police vehicles entering the college. I stood in front of the vehicles and pleaded, with hands folded, to the policemen not to enter the premises…I told the policemen that 5,000 students were in the college and the situation would turn bad. However, the policemen did not listen to my pleas.”

Bhat admitted that there was shelling on students but he claimed it was only from near the gate. Afterwards, they did return with reinforcements to the administrative building, but it was to rescue, not to attack.

“There were SOS calls from the college, from girls and teachers, saying we are trapped, we have been locked inside our rooms,” he said. “That’s when the police went inside. Mild force was used and the miscreants were chased away. The teachers, staff and students were let out.”

According to Rajesh Yadav, commandant of the 161 battalion of the CRPF, just two units of the paramilitary force are stationed in Pulwama. They are deployed as and when requested by the police. He refuted the claim that students had been beaten up, saying action was taken against stone-pelters alone.

‘You were protecting the boys’

Similar scenes were repeated in other parts of the Valley on Monday. Iqra Sadiq, 20, lay with a fractured skull at the Sri Maharaja Hari Singh Hospital in Srinagar. A first year student at the women’s college in Nawakadal, Srinagar, she had been part of a protest march into the city.

“The boys were leading us,” Sadiq said, speaking slowly. “When we reached Eidgah [a neighbourhood in old Srinagar], the boys started stone-pelting and we ran away. There were CRPF men on the right and left and a Rakshak in front of us.”

In the chaos, a stone hit her on the head. A friend visiting Sadiq at the hospital said she was brought to the hospital by four boys in an auto-rickshaw, early in the afternoon. The doctors had removed blood clots from her head, family members said, and she was expected to be released in four or five days.

“It was a peaceful protest [in the beginning],” Sadiq said. “We were shouting slogans for Azadi, student power zindabad, etc. The police told us to move ahead. They signalled that they would not do anything.”

Iqra Sadiq at Sri Maharaja Hari Singh Hospital in Srinagar. Image credit: Ipsita Chakravarty

Meanwhile, a lecturer at Baramulla Degree College said the slogans started around 11.15 am. “Earlier, two cops had come asking the administration if any police deployment was required, we said no,” she recounted. The college authorities had locked the gate so that students could not leave and the forces could not come in.

“Around 11.45 am, three tear gas shells were fired into the college,” she continued. “We could not see anything in the buildings. One teacher fainted. Another, who was pregnant, had a difficult time even after the smoke cleared up. Boys ran into the college grounds from the main building and the forces also came in. They cleared the boys from the grounds. One was caught near the administration section and brutally beaten. Some members of the staff were also roughed up. The police said, ‘you were protecting the boys’. There had been negligible stone pelting. It was mostly sloganeering.”

The Baramulla police confirmed that they had fired “some” tear gas to disperse the students but denied beating up the college staff. One student was trying to damage a car and he was pushed and beaten up as were three or four other boys, the police claimed. After the violence subsiuded, the police and the tehsildar went into the college to meet the students, said the lecturer.

Fear and anger

For students such as Naveed Dar and Shahbaz Dar, this was their first brush with the security forces. Unlike Farooq and their other classmates, they had not gone out protesting in 2016. Naveed Dar, for one, was worried about finishing his course.

The conflict in Kashmir has hit student life with its constant curfews and shutdowns. In 2016, the boys said, Pulwama Degree College was shut for six months. When it reopened, they went straight into exams. “It’s been three years and I am still in my third semester. At this rate, I will finish college in nine years,” he said.

The turbulence has also meant that students cannot imagine a future. Naveed Dar only knows he wants to get out of an increasingly violent Pulwama as soon as he can. Neither Farooq nor Naveed Dar have career plans. “We never got to think about it,” said Farooq. “When you have to think whether you’ll make it to the next day, it changes things psychologically.”

Such extended periods of closure have also meant that student politics has not taken root in colleges, not in recent years at least. Pulwama Degree College is not strict, students said. During the protests last year, pro-freedom posters and slogans went up and were not taken down by the college authorities. But there were no protests organised by the students as a group.

The last time a protest march started from the college ground was in 2009, when the Valley rose in protest against the rape and murder of two young women in Shopian, allegedly by security forces. The “Shopian Chalo” call, in fact, had come from Pulwama Degree College, said Farooq.

Unlike other parts of the country, student unions are proscribed in Kashmir. The Kashmir University Students’ Union was banned in 2010, the year mass protests erupted and its offices were demolished by the authorities. Its current iteration is not officially recognised. Could the latest spate of clashes between students and security forces lead to a new phase of mobilisation and political organisation in Kashmir’s colleges?

It remains to be seen. For Naveed Dar and Shabaz Dar, it means the last bastion of security has been breached, giving rise to new fears. But Farooq said fear has disappeared among students, it is only anger now. The next time such a clash happens, he added, it could be even more intense.

Courtesy: Scroll.in

Inadequate Pensions Leave India’s Elderly No Choice But To Work

April 20, 2017

Kamla Devi (not her real name), of advanced but uncertain age, lives in Lohari, a remote adivasi village located inside a wildlife sanctuary in Udaipur, Rajasthan. On a summer day in 2016, we approached her as she was chasing after a small herd of goats, to ask questions as part of a study on the relation between ageing, paid work and pensions.

An elderly farmer delivering grain at a paddy procurement centre near Raipur, Chhattisgarh. Over a third of India’s elderly people–38%–continue to work, according to the National Sample Survey Office.

Our very first question–whether she was a beneficiary of the government’s non-contributory pension scheme for the aged–irritated her. She explained that she was indeed a beneficiary but did not want to be one. Local officials had refused to give her work under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA, the law that governs the key central government employment guarantee programme) since she received Rs 500 a month as pension under the scheme.

In a clear violation of MGNREGA, Kamla Devi was informed that the pension was the reason she had been denied work under MGNREGA. She was clear that she wanted to continue working to earn a living, not just because the pension is too little, but, as she explained, because she was still capable of labouring.

In the block headquarters of Kotda in Udaipur district, the study took us to Irfan’s house (he uses one name). He put his age at close to 60 years and said he had spent the better part of his life transporting loads on his head for a fee. Having remarried in his old age, Irfan lived with his young wife and 10-year-old son. He said he suffered from severe back pain and muscle soreness, and would like nothing more than to stop working. However, between his son’s school fees and his own medical bills, he had no choice but to work. Recently, his wife had also begun to look for work to share his burden.

In Rajasthan, women aged 55 years and above and men aged 58 years and above receive a monthly pension of Rs 500 as part of the Centre-led non-contributory social pension scheme, the Indira Gandhi National Old Age Pension Scheme. The central government contributes Rs 200 for those aged 60 and above and Rs 500 for those aged 80 and above and falling below the poverty line. The Rajasthan state government has achieved near universal coverage under this scheme, entitling a minimum of Rs 500 per month to each beneficiary. However, the amount is so grossly inadequate–at just over Rs 16 a day, it would not buy half a litre of milk–that it leaves the elderly who have no other financial resources with no real choice but to work for a living. Yet, whether they find work is subject to lingering prejudices, as in Devi’s case.

No income and social security

Governments across the world provide pensions for varying reasons. However, the shared logic behind old age pension is to enable those beyond a certain age to maintain a reasonable standard of living without having to engage in paid labour. In India, this is empirically true for people who receive assured monthly pensions following their retirement from work, but, in the non-formal sector, people do not retire from work at any stipulated age.

The participation of the elderly in the workforce is all pervasive, particularly in the unorganised sector that employs the majority of Indians, without formal conditions of employment.

According to the 68th round of the employment-unemployment survey 2011-12 conducted by the National Sample Survey Office, over a third of India’s elderly people–38%–continue to work. Extrapolating from the Census 2011 figure of 103 million elderly people in the country would put the number of elderly people who continue to remain in paid employment at 39 million.

The New Delhi-based Centre for Equity Studies (CES) conducted a study–unpublished as yet–in seven locations across rural and urban Rajasthan from August to October 2016, in which trained field investigators interviewed 791 people above the age of 55 years to understand people’s experience of ageing without income security. Of the total sample of 791 respondents, 57% were women and 43% men; 59% reported to be engaged in at least one remunerative job. Field investigators approached every elderly person (above the age of 55 years) in every house in a given location. Those who met Rajasthan’s exclusion criteria for state old age pensions–by receiving a job-related pension and/or being an income tax payee–answered fewer and truncated questions, but their numbers were quite limited (16 individuals).

A key finding of the study was that, in the absence of adequate income and social security, the elderly lack real choice in determining the extent, duration and nature of their engagement with paid work.

Little choice but to work

The survey asked one question to all respondents:

“Assuming a situation wherein you receive an adequate pension to sustain yourself, would you:

1. Work as much as before (before receiving adequate pensions) 2. Continue work but less 3. Not work at all.”

Source: Centre for Equity Studies; N=791

The elderly respondents varied vastly in how they viewed their engagement with work: Over a fourth said they would continue to work as before if given an adequate pension, but nearly half said they would work less (23%) or not work at all (25%).

Of those who said they would continue to work as before, 86% said they were currently engaged in work. In contrast, 32% of those who said they would not work said they were currently engaged in regular remunerative work.

Source: Centre for Equity Studies; P Value: 0.00, N=599

How much would an adequate pension be? Another survey question asked respondents to state a monetary amount that would cover their basic needs. The average amount cited was Rs 1,875–more than three times the monthly pension at present–while the median value was Rs 1,500, three times the current monthly pension.

Adequacy is a concept that cannot be defined in monetary terms alone, yet even in purely monetary terms, people understood adequacy of pension differently. Those respondents who said they would continue working as in the past put the average value of an “adequate” pension at Rs 1,600–over three times the existing old age pension–while those who said they wished to work less or not at all put the amount at Rs 2,000–which is four times the pension given. Clearly, they saw adequacy in relation to their own capacity to work and supplement their pension, as opposed to their age in and of itself.

At the same time, even the highest of the amounts cited as adequate, Rs 2,000 per month, amounts to less than half the existing minimum wage and less than a fourth of the national per capita income.

Gender affects perceptions

There was a stark difference in the responses of male and female respondents to the question whether they would continue to work but in a reduced capacity if given an adequate pension. A greater proportion of the male respondents (36%) looked forward to negotiating the volume of work, as compared with female respondents (26%). However, an equal proportion of men and women–a little over one-third–said they would continue to work irrespective of the pension. This suggests that other considerations aside, women found it difficult to
Table 3
conceive of a scenario where they would be able to negotiate lesser work than their current work burden.

More women (36%) than men (28%) said they would not work at all.

Source: Centre for Equity Studies; P Value: 0.01, N=599

Elderly men are proportionally more likely to work less when given an adequate pension as compared with women, more of whom would rather not do any paid work at all.

India has generally low participation of women in paid work–at present about 25%, according to the International Labour Organisation. It is even lower for women above the age of 60 years, according to a 2016 report, by A. Bheemeshwar Reddy in the International Journal of Social Economics, which argues this could be because women’s relationship with paid work itself is far more complex compared with men’s. Because of the pervasive gender-based division of labour, women perform tasks across the spectrum–contributing to remunerative chores at the workplace, often for a lower monetary value than men’s work, and to non-remunerative chores at home.

Hence, in this study, it is difficult to understand what women mean when they say they will not work at all, CES found. For women, whose labour is unrecognised in multiple ways, often by themselves, retirement is a misleading concept.

Pension, the key enabler

Without adequate pension, it is impossible to imagine a scenario in which the elderly poor can choose whether to work or not. To ensure a dignified standard of living for the elderly, timely and sufficient pensions are imperative.

This choice of working or not has always existed for those who receive assured pensions after retiring from their jobs. This choice must be extended to all older people.

Notes:

The study was conducted in Rajasthan in partnership with Astha Sansthan, UNNATI and Mazdoor Kisan Shakti Sangathan, Rajasthan. A more detailed discussion on old age pensions can be found in the “India Exclusion Report 2016” due to be released in May 2017 by CES and Yoda Press.
Kamla Devi’s name has been changed to protect her identity.

Update: The story was updated to reflect that the number of elderly Indians who continue to work, when extrapolated from the representative NSSO survey, is 39 million.

(Sampat is a Delhi-based researcher. Dey is a researcher with the Centre for Equity Studies, New Delhi.)

Courtesy: India Spend

CAG Report Indicts MOEF & Pollution Control Boards for Non-Compliance: Environmental Degradation

April 20, 2017

The report makes a strong case for a stronger environmental regulator

On March 10th, a significant audit report that has probed into the state of environmental clearance processes and post–clearance monitoring was tabled in parliament.

This 117 pages performance audit report contains very indicting comments on the state of non-compliance which almost borders on impunity. It also shows how State Pollution Control Boards( SPCBs) /Union Territory Pollution Control Committees and Central Pollution Control Board (CPCB) as well as Regional Offices of Ministry of Environment and Forests and Climate Change (MoEFCC) failed to monitor compliance of environment clearance conditions by project proponents. The most shocking audit findings is that many such non-compliances were also observed in the projects operating within Critically Polluted Areas (CPAs). While the audit report contains a minefield of information on the state of environmental governance in country, this article engages with what CAG auditors found with respect to 22 projects that are operated in CPAs.

During the year 2009-10, CPCB in collaboration with Indian Institute of Technology, Delhi carried out comprehensive environmental assessment in 88 prominent industrial clusters. This comprehensive assessment was based on Comprehensive Environment Pollution Index (CEPI), which is a rational number to characterize the environmental quality at a given location following the algorithm of source, pathway and receptor. Out of 88 industrial clusters, 43 industrial clusters which were assigned the score of 70 and above were declared as CPAs.

To restore the environmental quality in these 43 critically polluted areas, MoEFCC had taken several actions during the period 2010-14, the most significant of these being imposition of moratorium on grant of environment clearance in all these 43 critically polluted areas. However, on several occasions during October 2010 to September 2013, MoEF decided to lift moratorium from 26 of these critically polluted areas. This decision was based upon statements furnished by SPCBs to the effect that some ground work had been initiated in line with the submitted action plans.

Missing actions in the plans
During audit scrutiny, it was found that out of 16 states where these 43 critically polluted areas are located, the SPCBs of only 12 states (Andhra Pradesh, Chhattisgarh, Haryana, Kerala, Karnataka, Madhya Pradesh, Odisha, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal) had prepared action plans. CAG auditors couldn’t ascertain the position of preparation of action plans in three states, namely Gujarat, Jharkhand and Maharashtra. Although Najafgarh drain including Anand Parvat, Naraina, Okhla and Wazirpur were identified as critically polluted area, Delhi stated this requirement was ‘not applicable’! Further reply by MoEFCC in October 2016 stated that action plan pertaining to Najafgarh drain basin was in draft stage.

CAG auditors also probed whether the action plan were in public domain and found that only in five states (Andhra Pradesh, Chhatisgarh, Karnataka, Odisha and Punjab) websites of SPCBs provided access to these action plans. In the case of six states (Jharkhand, Haryana, Madhya Pradesh, Rajasthan, Uttar Pradesh and West Bengal), it was claimed that SPCBs had prepared action plans, but these were not displayed on websites of SPCBs. What is absolutely saddening is that during the course of these performance audit, four states (Delhi, Gujarat, Kerala and Maharashtra) did not provide any information vis a vis preparation of action plans.

However, the audit paragraph 6.3 had stated that Kerala’s SPCB had prepared action plan, whereas Jharkhand’s SPCB had failed to do the same and audit paragraph 6.4 listed Jharkhand as having prepared an action plan but not displaying the same. Has this contradiction entered because SPCBs and MoEFCC has made contradictory claims at different times during the course of audit? Or this simply goes on to suggest that CAG auditors were checking compliance and performance merely as ‘ticking the box’ activity.

Environmental activists and organisations would have liked to see a robust analysis of the qualitative parameters of the action plans prepared by SPCBs, with reference to critically polluted areas in an environment audit. Those from Indian Audit and Accounts Service (IAAS) who have a passion and commitment to environmental auditing genre have made efforts to enhance their academic capabilities on this subject, but their efforts are frustrated by audited entities whose non-cooperative attitude almost borders on disrespecting a constitutional institution with impunity.

In a further reply filed by MoEFCC in October 2016 after the draft audit report was presented to them, they argued that all 16 SPCBs have been directed to upload the action plan on their website. One can only wonder and shout aloud, “only if directions would have ensured compliance”!

Monitoring the action plan
So if this was the state of affairs on the front of preparation of action plans by SPCBs and making them accessible in public domain, how did SPCBs perform when it came to monitoring of the action plan execution?

CAG audit notes that “In nine states (Andhra Pradesh, Chhatisgarh, Kerala, Odisha, Punjab, Rajasthan, Tamil Nadu and West Bengal) the implementation of action plan was monitored by SPCBs, whereas it was not monitored in six states (Gujarat, Haryana, Jharkhand, Karnataka, Maharashtra and Uttar Pradesh) by SPCBs, and in case of Delhi, it was stated as ‘not applicable’”. In its reply on this audit observation, MoEFCC stated that “the local level committees in 35 critically polluted areas have been constituted for monitoring the implementation of action plans, while in the respect of remaining eight CPAs, the committees have not been formed and SPCBs were monitoring the progress”.

SPCBs were also required to submit yearly monitoring report of critically polluted areas to CPCB. Audit scrutiny revealed that during the period 2011 to 2015, only eight states (Andhra Pradesh, Karnataka, Madhya Pradesh, Punjab, Rajasthan, Odisha, Tamil Nadu and West Bengal) submitted monitoring reports to CPCB regularly, whereas seven states (Chhattisgarh, Delhi, Gujarat, Haryana, Jharkhand, Kerala and Maharashtra) did not submit the monitoring report to CPCB. In the case of Uttar Pradesh, monitoring reports were submitted intermittently.

Audit scrutiny also showed that only six states (Andhra Pradesh, Karnataka, Madhya Pradesh, Punjab, Tamil Nadu and Uttar Pradesh) brought the increase in pollution levels to the notice of CPCB as well as MoEFCC, while the other states failed to monitor pollution levels.

In April 2016, MoEFCC directed the concerned SPCBs to ensure that monitoring of action plan gets carried out by third-party bi-annually. Third party monitoring was done by five states (Andhra Pradesh, Madhya Pradesh, Odisha, Punjab and West Bengal) and in case of Karnataka, one project (i.e. MRPL) was monitored out of two projects. Audit scrutiny revealed that in remaining 10 states (Chhattisgarh, Delhi, Gujarat, Haryana, Jharkhand, Kerala, Maharashtra, Rajasthan, Tamil Nadu and Uttar Pradesh) monitoring of the implementation of action plan by third party was not done.

Responding to this audit finding, MoEFCC stated in its reply dated October 2016 that “all the SPCBs had been directed to undertake third party monitoring in CPAs on regular basis”.

A lacklustre ministry
And what happens when the ministry issues mere directives?

Audit scrutiny revealed that in September 2013 MoEFCC had directed CPCB to undertake environmental quality monitoring in CPAs through a third party in biennial basis for computing CEPI in these 43 critically polluted areas. It was seen through the scrutiny of records that CPCB had not finalized the firms through which the environmental quality monitoring was to be done till May 2016, although the work was to be completed in the year 2015. In May 2016, during the course of performance audit CPCB merely stated that “the environmental quality monitoring in 43 critically polluted areas would be undertaken by CPCB during 2016-17”. Five months after this moment, when a shocking non-compliance caught by CAG auditors was being responded by CPCB with mere assurances, MoEFCC in its reply field in October 2016 argued, “due to paucity of funds and other administrative difficulties, the third party monitoring could not be performed by CPCB in 2015” and went on to merely assure that “the finalization of zone wise monitoring agency was in process and CEPI score was expected to be evaluated in 2016-17”.

—
*The author is a close follower of many grassroots movements, faculty member at the Azim Premji University, Bangalore. This article was first published in India Together, with the support of Oorvani Foundation – community-funded media for the new India

Breathe Life into the RTI: Set Up Info & Facilitation Centres

April 20, 2017

Set up Information and Facilitation Centres with each public authority to help RTI applicants

The National Campaign for People’s Right to Information (NCPRI) has put out the following issues that need to be part of a mass campaign:

Excerpts from suggestions* of the National Campaign for Peoples’ Right to Information (NCPRI) on the proposed Right to Information (RTI) Rules, 2017:
Several provisions of the RTI Act are not being properly implemented due to the absence of rules. Therefore, we suggest that the Department of Personnel and Training (DoPT) frame rules on the following issues through public consultation:

Compliance with Section 4– In order to ensure compliance with section 4, DoPT must take appropriate steps, through framing of rules, to operationalise and implement the recommendation made by a committee set up under the chairmanship of Shri Devesh Chaturvedi, Joint Secretary – DOPT to examine the report of the committee of experts on suo motu disclosures (report available from https://goo.gl/wc0c0b), that compliance with Section 4 be included as one of the performance indicators in the annual performance appraisal report (APAR) of the HoDs of public authorities.

Accessing information about private bodies- Formulate rules, pertaining to accessing information about private bodies under section 2(f), to specify the obligations of private bodies under the RTI Act and to clarify the procedure to be adopted by PAs in accessing and providing such information to the applicants.

Information and Facilitation Centres- The role of the PIO, as envisaged under the RTI Act, is to provide assistance to persons seeking information and facilitate them in the process (Section 5(3)). Section 6(1) requires the PIO to render all reasonable assistance to a person making an information request orally and also reduce the same in writing. Despite more than 11 years of the implementation of the RTI Act in India, in most public authorities no mechanism to assist information seekers has been put in place. Therefore, it is suggested that ‘Information and Facilitation Centres’ (IFCs) be set up in each public authority. These centres could keep copies of Section 4 disclosures of the public authority, copies of citizen charters, applications forms for various services, and also facilitate the process of filing applications under the RTI Act. The proposal to set up IFCs was also approved by the committee set up by the DOPT to examine proactive disclosures (report available from https://goo.gl/wc0c0b). Till such time that IFCs are set up, it must be ensured that in every public authority mechanisms are adopted whereby information seekers can directly contact the PIO and seek his/her assistance in filing an information application.

Suggested time-frame for disposal of appeals and complaints- Second appeals and complaints before the information commission should be disposed of as speedily as possible and preferably the final order should be no later than 90 days from the filing of an appeal or a complaint.

Appropriate level of officers designated as “Registrar” of the Commission– In order to ensure that officials of adequately senior level are designated as “Registrars” to the Commission, the rules must specify that no officer below the rank of Under Secretary to the Government of India can be designated as a “Registrar” as defined in Rule 2(h) of the proposed RTI Rules, 2017.

MIS for uploading RTI applications and responses – In order to streamline the process of uploading RTI applications and responses, we suggest that rules for a publicly accessible MIS be framed which would, in addition to providing the RTI application and reply, also display relevant dates, status of the RTI application and details of PIO before whom the matter is pending.

Rules related to appointment of information commissioners- The issue of lack of transparency in the appointment of information commissioners has been widely debated since the enactment of the RTI Act. Therefore, to establish a transparent process, appropriate rules are required to be framed.

Procedure for dealing with appeals related to cases of life and liberty- The RTI Act lays down that in matters related to life and liberty, information is to be provided with 48 hours. However, there is no concomitant time-frame for disposal of first appeal, second appeal or complaints in cases where information is not provided within 48 hours. Therefore, to effectively operationalise this provision, appropriate rules should be framed with a clearly defined procedure and time frame.
Procedure for Section 24– DoPT must take appropriate steps through framing rules to put in place a proper mechanism to ensure wide public consultation prior to any public authority being exempted from the RTI Act under Section 24. As per the recommendation of a committee set up by the DoPT (report available from https://goo.gl/wc0c0b), prior to the government issuing a notification under section 24(2), the name of the proposed body, details of its functioning and the reasons on how it responds to the grounds set out under Section 24 should be publicly disclosed and a specified time-frame should be allowed for members of public to raise objections to the proposal. This would also be in line with the proactive disclosures required under Sections 4(c) and (d) of the RTI Act and the government’s stated Pre-legislative Consultation Policy (PLCP).

*Download full text of NCPRI’s recommendations submitted to the Department of Personnel and Training, Government of India, HERE

Lynching of Pehlu Khan: National Call for 3-Day Dharna in Jaipur to Demand Justice

April 20, 2017

In a unique instance of a united initiative, a number of organizations in Rajasthan have come together to protest the lynching of Pehlu Khan and to demand justice in the matter. A large demonstration was recently held in Jaipur, following which many organizations of different political persuasions have come together to call for a three-day national dharna outside the Rajasthan State Assembly from 24-26 April 2017.

The organisations which have issued the appeal published below include: Rajasthan Nagrik Manch, PUCL, CPI (M), CPI, NFIW, AIDWA, WRG, Vividha, National Muslim Women’s Welfare Society, BGVS, MKSS, Suchna Evam Rozgar Adhikar Manch, JIH, Dr. Ambedkar Vichar Manch, CDR, AIDMAM, Welfare Party of India, Jan Vichar Manch, Samajwadi Party, JD (U), SIO, SFI, Rajasthan Smagra Sewa Sangh, HRLN, Samta Gyan Vigyan Manch, All India Kisan Sabha, NAPM, WRG, Vividha, SDPI, RUWA, Zari Workers Union and others.

JAIPUR CHALO!! JAIPUR CHALO!!

NATIONAL CALL TO JOIN THE DHARNA IN JAIPUR, RAJASTHAN

DEMANDING JUSTICE IN THE MATTER OF LYNCHING OF PEHLU KHAN AT BEHROR, ALWAR

Friends,

As you are aware that 55 year old Pehlu Khan a dairy farmer from Nuh, Mewat district in Haryana was lynched by a group of so called Gaurakshaks on NH 8 at Behror, Rajasthan, when he was returning with four others, including his 2 sons, in 2 pick up trucks, after buying a few cows (along with the documents) from the fair in Hatwara, near Jaipur city.

At about 6.30pm on the 1st of April, their vehicles were stopped and they were pulled out of their vehicles and beaten up brutally by a mob and later Pehlu Khan succumbed to his injuries on the 3rd of April at Kailash hospital in Behror. Azmat who was critically injured was harassed by the police in the name of investigations, that he too was not given proper treatment and even today he remains seriously sick and in a state of trauma.

Pehlu khan a dairy farmer was charged by the police of trafficking cows that day and the police booked all 5 of them under section 5 and 8 of the Rajasthan Bovine law. They were allowed to go home after the death of Pehlu Khan. Pehlu Khan’s FIR was also lodged against the attackers, despite the fact that the crime was so serious they were booked under simple bailable sections, except for sec 308 of the IPC, abetment to homicide, not attempt to murder. However, after the death of Pehlu Khan it was converted to sec 302 of the IPC.

To date only five people have been arrested. But not the six who were named in the FIRs. They are being completely protected by the police. We are told that the main accused are not being arrested as they are a part of the Bajrang Dal, VHP and RSS and are professionals and work as either college teachers, nurses and two are also student leaders. It is imperative that they be arrested.

We were also informed that in order to put pressure on the family of Pehlu Khan, the Haryana police has made Irshad the son of Pehlu Khan an accused in a 2011 case of trafficking of cows, police station Tauru in Mewat.

The Rajasthan Chief Minister has not cared to open her mouth on this serious crime in the State. Eighteen days have passed. Initially it was the election campaign period of the Dholpur bypoll and that speaking on this issue maybe politically incorrect for her, we were told. But now that the by polls have been won despite the lynching and death of Pehlu Khan, it does not matter anymore as such issues in no way affects their image with their supporters instead helps them polarise and consolidate the “Hindu” vote even more.

The State Home Minister who spoke to the media soon after the death of Pehlu Khan, instead of assuring the public that fair investigation would happen and the Gau Rakshaks would be behind bars, glorified the Gau Rakshaks and said that they have done a good job except that they should not have been so brutal with Pehlu Khan and not taken the law in their hands.

Groups in Alwar and Jaipur have been protesting from day one. Meetings have happened with the police SP in Alwar, the DG police and the Chief Secretary. On the 10th and the 17th public protests were also organised and memorandum presented to the CMO, as the CM was not there on both days.

Some members of the family of Pehlu Khan came to Jaipur on the 17th of April with the hope of meeting the CM and sharing their side of the story, which they felt the police had
not given them a fair chance, but were disappointed.

The lynching of Pehlu Khan is not the first case in Rajasthan. In Bharloki, Khimsar Tehsil, Nagaur, Abdul Gaffar Qureshi was lynched on the 30th of May, 2015 which led to his death, following rumours of Muslims having consumed beef after slaughtering cows, when it was completely wrong as the evidence showed.

Similarly, in Rajsamand in October 2016, the Banjaras were beaten up badly by Gaurakshaks for buying cows in Rajasamand, despite having all the required documents, then it took several public protests to get them arrested. Similarly, Hotel Hayat Rabbani was shut down on 19th March, following a conspiracy between the police, the Nagar Nigam at the Mayoral level and the gau rakshaks, led by a Kamal didi, where they spread a rumour that the hotel staff served beef. The hotel remains shut even today.

In this context several groups in Rajasthan have decided that till national pressure is not brought on the Vasundhara Raje Government, Pehlu Khan will not get justice.

That is why the three day Dharna has been planned outside the Vidhan Sabha from the 24th to 26th of April.

It is important that the 200 legislators discuss this issue and the government give a reply to our demands.

Apart from the arrest of the attackers the demands consisted of the following”
·       End all vigilantism in the name of a cow now.
·       SHO Behor Police Station, be suspended with immediate effect and the SP of Alwar be removed. There was a failure of due diligence.
·         Home Minister Gulab Chand Kataria , should resign on moral and ethical grounds for openly glorifying and lauding the criminals.
·         Azmat Khan be shifted to a good hospital in the vicinity in Gurgaon.
·         Rs. One Crore be compensated to nearest kin of Pehlu Khan
·         All the injured be provided with Rs. 25 lakh for rehabilitation and recovery.
·         All FIRs against Pehlu Khan and his family members and fellow travellers be closed.
·   A single window access to all documents required when transporting cows from one state to another.
·   Hotel Hyatt Rabbani should be reopened immediately.

DATES OF DHARNA: 24th to 26th of April, 2017

Venue outside the State Assembly of Rajasthan

Timings 11 am onwards

Contact persons: Basant Haryana: 9887767688, Sumitra Chopra: 9462171994, Sawai Singh: 9413200044, Iqbal Siddiqui: 7737509669, Mukesh Goswami: 9468862200, Sanjay Madhav: 9414073669, Nisha Sidhu: 9414443607, Kavita Srivastava: 9351562965

Why I Argue that the Aadhaar Act Is no Valid Legislation and People are Free to act Contrary to It

April 20, 2017

Advocate Prasanna S who is strongly opposed to imposition of the Aadhaar card argues that it is void ab initio

Recently, I attempted a tweetstorm on why I think the 2016 Aadhaar Act does not override, or render useless, the orders passed in Oct 2015 by the Supreme Court. I argued that all of the recent notifications by various central government authorities making Aadhaar mandatory to avail the respective service of those authorities, are in manifest violation of the Supreme Court’s orders. This post is to explain those points in a little more detail and provide a rebuttal to counter-views that are being tweeted out such as this.

Here is a brief timeline of the events leading up to the recent Govt. notifications making Aadhaar mandatory for availing for services like food grain under PDS, mid-day meals for school children, girls rescued from human trafficking and many others.

The unique identification authority of India (UIDAI) was established by an executive notification in January 2009 and had been running/overseeing the operations of data collection, enrolment, deduplication through biometrics, assigning of Aadhaar numbers. It also provided Aadhaar authentication and related services.
The authority operated under executive notification until it was reincarnated into its present statutory form after the coming into force of the 2016 Aadhar Act.

Nearly a dozen petitions challenging the Aadhaar/UID project have been pending in the Supreme Court since 2012. The petitions challenged the project on a number of grounds including:

The Authority operating without a legal sanction and in legal vacuum;
The unconstitutional irrationality of using Biometrics – not just unproven but provably inappropriate technology for deduplication and authentication; and tying the same for the purposes of identification for essential services such as food, NREGA lead to unconstitutional exclusion of people from accessing those services;
The enablement of surveillance, convergence of data without constitutionally sufficient statutory protection being an unconstitutional infringement of the right to privacy;
- National security implications of employing foreign companies with link to foreign national governments and intelligence agencies for biometric operations, endangering the right to life of the entire population of the country;
- Unconstitutional Irrationality of employing private contractors as enrolment agencies and having them handle sensitive personal data without constitutionally adequate techno legal safeguards;
- Unconstitutional irrationality of using Aadhaar authentication or KYC for financial products or inclusion schemes as it facilitates money laundering; promotes exclusion even as it paints a picture of inclusion; and importantly threatens economic sovereignty of the nation;
- The unconstitutional denial of dignity to Indian residents for using unlawful coercion to have then queue up to part with their biometrics and other personal data; and
- The lack of competence, under the constitution of the union executive in operating the project.
Supreme Court passed the first interim order in the matter in September 2013 prohibiting any government body from insisting Aadhaar as mandatory for any of its services irrespective of any circular or notification that may have been issued in that regard.
It reiterated that position a number of times thereafter – November 2013, March 2014, March 2015, August 2015 (after Attorney General for India famously claimed before the Supreme Court, the highest constitutional court of the land, that Indian citizens do not have the right to privacy under the constitution and the matter was sent before a constitutional bench of a minimum of five judges, even as the matter raised grave questions of constitutional interpretation and is “of some urgency”) , and again in October 2015.
The August 2015 order limited even voluntary use of Aadhaar to two schemes viz PDS and LPG. The October 2015 order permitted four more schemes for voluntary usage of Aadhaar.
The October 2015 order categorically made it clear that Aadhaar scheme shall be “purely voluntary” until the matters are finally heard and decided one way or the other.
In March 2016, Aadhaar Act was passed as a Money Bill, bypassing the Rajyasabha. The unconstitutionality of such introduction and passage has also been challenged in the Supreme Court and that challenge has also been admitted and tagged along with earlier petitions before the SC.
Starting January 2017, more than sixty different government authorities issued notifications under Section 7 of the Act, apparently making Aadhaar mandatory for various purposes.

In my humble but considered view, such notifications are unlawful and are in violation of the Oct 2015 order which still holds the field.
I argue that:

The primary basis of a court passing an interim order is the pending dispute before the court. As long as such a dispute is still pending, the orders would ordinarily hold force. In this case, the petitions are still technically pending before the Constitution Bench of the court, even if the Govt thinks they have become infructuous/ useless. The government has not moved the court for such a declaration or dismissal of the petitions or vacation of the orders citing the new law.
Note that this case is different from instances like the Shah Bano story in which a final judgment of the court was sought to be undone by an Act of parliament. In this Aadhaar case, the central government is still before the court and is subject to the jurisdiction and specific restraint imposed by the court. If any authority wants to exercise power, (even newly found power) contrary to such restraint, it cannot do so without the permission of the court.
I am not suggesting that a parliamentary legislation cannot in any case override interim directions of the supreme court. However, I argue that the following are the necessary (but not sufficient) ingredients for that:

There should be an express statement in the objects of the Act as introduced in parliament or elsewhere during the legislation process that this seeks to undo interim directions of the court; or
It is impossible for a person to comply with the later legislation as well as the orders of the court.

In this case, the Act has neither of these ingredients. While Section 7 confers power on various authorities to insist on Aadhaar as a mandatory pre-requisite, it does not impose a duty to do so. The authorities therefore can comply with the Act without being in contravention of the orders of the court, by simply not exercising the powers under Section 7. If any authority is desirous of exercising the newly found power, they can do so – but only with the leave of the court.

Moreover, when the interim orders were passed, the absence of law was not the only issue in consideration. In fact, the central government had argued that the Appropriation Act at the time read with Allocation of Business Rules under Article 77 provided the legislative basis for the project and that IT Act and the Rules under IT Act have enough statutory safeguards for data protection; and therefore there was no legislative vacuum under which the project was operating.

Government of India, and others seem to take a view that the 2016 Act did not exist before October 2015 and that there is no principle of automatic stay of an Act of parliament that did not exist at the time of passing the order and therefore, October 2015 order would not prohibit authorities from exercising power under Section 7 of the newly enacted Act.

That argument does seem to be appealing on the face of it. However, a plain unqualified application of that argument leads to absurd results.

Assume for one moment, that the 2015 Act did stay the operation of a law – lets call it Aadhaar Act-1. Say parliament passes another identical Act and lets call it Aadhaar-Act-2. Can the government continue to implement and enforce Act-2 believing that there is no automatic stay? Such a result would be absurdity. Why have constitutional courts at all if legislatures can simply reiterate their earlier position and escape orders of such a court? My point is that the question as to whether or not an earlier interim restraint prohibits persons from exercising powers under a future Act depends on the facts and circumstances under which the earlier orders were passed and the contents of such future Act. For instance, SEBI applied to the Court to modify the 11th august order complaining that the 11th August imposed a restraint on its statutory powers even though they were not in challenge before the Court. On the face of it one may argue that there is also no principle in constitutional law to put restraints on statutory powers when such a statutory provision is not under challenge. But the court did not accept such a contention in its 15th Oct 2015 order and disallowed SEBI’s application.

I also argue that the Act was incorrectly introduced and passed as a money bill in the parliament in brazen disregard for the qualifications of being a money bill under Article 110 (3) of the Constitution and in glaring violation of the principle of Federalism, which is a part of what is called “Basic Structure” of India’s constitution. I am of the view that the Act is still-born and people are not bound by it. Note that this is different from an Act which is contrary to provisions of Constitution such as any fundamental right etc. In such a case, people are required to act as though they are bound by it until such a law is declared unconstitutional by the court. However, because this Act is no valid legislation at all i.e. it is void ab initio, people are free to act contrary to it. It is no different from a random resolution passed by your neighbour’s family – to give a crude example.

(The author is one of the advocates acting for some of the petitioners in the Aadhaar petitions before SC. Source: https://aamjanata.com)

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Breathe Life into the RTI: Set Up Info & Facilitation Centres

Set up Information and Facilitation Centres with each public authority to help RTI applicants

Lynching of Pehlu Khan: National Call for 3-Day Dharna in Jaipur to Demand Justice

Why I Argue that the Aadhaar Act Is no Valid Legislation and People are Free to act Contrary to It

Advocate Prasanna S who is strongly opposed to imposition of the Aadhaar card argues that it is void ab initio

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