“Soon after independence all these states acceded to one or the other dominion as per the arrangement except Hyderabad, Junagadh and Kashmir.”

Historical Context

Jammu and Kashmir was one of the 562 States under the suzerainty of British Crown after the independence of India and its partition on the basis of religion which was left to decide its future. All these states automatically regained full sovereign and independent status, free to join either of the two dominions or remain independent. The underlying principle for the choice before the states was the will of the people and the geographical location, even though these principles were not binding on the princely states.

According to legal expert, Faizan Mustafa, technically, the Instrument of Accession was like a treaty between two sovereign countries that had decided to work together. The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured.

The last Viceroy of the British empire, Lord Mountbatten put forward before the rulers two documents – the Instrument of Accession and a Standstill Agreement, for the continuance for the time being of agreements and arrangements in matters of common concern between the states and the dominion of India.

Mountbatten told the princes on July 25 1947 that the “Indian independence Act releases the States from all their obligations and the states have complete freedom technically and legally they are independent.” He added that the states are theoretically free to link their future with whichever they may care “but when I say they are at liberty to link up with either of the two dominions may I point out that there are certain geographical compulsions which cannot be avoided.” He elaborated you “cannot run away from the dominion government which is your neighbour any more than you can run away from the subject for who’s welfare you are responsible.”[i]

Soon after independence all these states acceded to one or the other dominion as per the arrangement except Hyderabad, Junagadh and Kashmir.

Junagadh and J&K

A.G. Noorani in his book ‘The Kashmir dispute – 1947 to 2012’ makes a comparison of Jammu and Kashmir which was a Muslim majority State ruled by a Hindu ruler and Junagadh, a Hindu majority ruled by a Muslim ruler. India’s first prime minister Jawaharlal Nehru had objected to Junagadh’s accession to Pakistan on grounds that the population of Junagadh was 80% Hindu and batted for a referendum under impartial auspices. The princely state was surrounded on all of its land borders by India, with an outlet onto the Arabian sea. Its ruler, Nawab Muhammad Mahabat Khanji argued that Junagadh was linked to Pakistan by sea against the advice of Mountbatten.

The Indian position was that Junagadh had acceded to Pakistan ignoring geographical considerations and the principle of religion or the exercise of the will of the people. This became the basis of Indian army’s military intervention in Junagadh to wrest it of Pakistan’s and the Muslim ruler’s control. This, however, was followed by a hasty referendum in February 1948 and by an almost unanimous vote the people showed their preference for India. Many scholars, however, have observed that India annexed Junagadh by force and laid down the international opinion on the principle of accession – geographical contiguity to the dominion and the demographics. The mobilisation of Indian defence forces in the lead up to the accession of Junagadh in November 1947 and the management of violence directed at Junagadh’s Muslims afterwards are an instance of the forcible incorporation of Indian princely states and Indian Muslims into the reconstructed post-colonial state.[ii]

Mountbatten and Ayyangar both agreed that the issue of geographical contiguity had no legal standing and that Junagadh’s accession to Pakistan was strictly and legally correct. But Sardar Patel demanded that the matter of the state’s accession should be decided by its people instead of the ruler.

“The state of Jammu and Kashmir had concluded a Standstill Agreement with the government of Pakistan in regard to the maintenance of the existing arrangement in respect of posts and telegraphs etc and thus it was open to Kashmir to exceed to either of the two dominions or remain independent.”

Hyderabad, ruled by a Muslim leader presiding over a Hindu majority and with no geographical link to Pakistan, met a similar fate. Stephen P. Cohen writes, “The vision of a future India and Pakistan rubbed against the ambitions of some of the princes, with the result that the rush to force them to join one or the other ignited several significant conflicts.” Although, technically, the decision to accede was in the hands of the ruler, not the ruled, India used force to incorporate Hyderabad and Junagadh, he writes.[iii]

Scholars are divided on the question of whether the decision was to be made by the rulers or the ruled. The will of the latter, a principally more moral option, could be asserted only through a referendum. Whatever the morality of the question, India could not have applied two yardsticks for the different princely states awaiting a decision on their future.

Besides, if the principle of geographical contiguity and demographics was valid for Junagadh, could a different yardstick be applied to Kashmir. The state of Jammu and Kashmir had concluded a Standstill Agreement with the government of Pakistan in regard to the maintenance of the existing arrangement in respect of posts and telegraphs etc and thus it was open to Kashmir to exceed to either of the two dominions or remain independent.

“This period of indecisiveness coincided with several other almost simultaneous events – the communal troubles in Jammu following the movement of refugees from West Punjab into Jammu, the Poonch revolt against the Maharaja and the armed tribals entering the state with the connivance and support of the Pakistan authorities, forcing the Maharaja to send a desperate distress appeal for help to the government of India.”

Period of indecisiveness

Mahatma Gandhi on a visit to the state in August 1947 said that the will of the Kashmiris should decide the fate of Jammu and Kashmir and added that the sooner this was done the better he also hoped that the question would be decided between the two dominions, the Maharaja and the Kashmiris, elaborating that “if the four could come to a joint decision then much trouble would be saved.”

The Maharaja who wanted to save and safeguard his princely privileges was uncomfortable in signing an accession either with India, looking towards a democratic and anti-feudal future, or with Pakistan, with its Muslim majority. Sheikh Abdullah, who was released from jail in September 1947, also made his preference publicly known towards independence, warning that that if the state declares accession to India or Pakistan, he would raise the banner of revolt.

This period of indecisiveness coincided with several other almost simultaneous events – the communal troubles in Jammu following the movement of refugees from West Punjab into Jammu, the Poonch revolt against the Maharaja and the armed tribals entering the state with the connivance and support of the Pakistan authorities, forcing the Maharaja to send a desperate distress appeal for help to the government of India. The exact chronology of events is a matter of speculation and academic debate, in the light of fuzzy evidence but what is significant is that all of these factors were co-related and had a direct or indirect bearing on the other, engendering tensions and creating divisive fault lines that would become part and parcel of the region’s destiny.

Instrument of Accession

After the armed tribals from North West Frontier province entered Kashmir, Indian minister V.P. Menon flew to Srinagar where he met the Maharaja on October 26, 1947 and both left Srinagar for Delhi where Menon reported to the defense committee that the only basis of sending troops into an independent country had to be accession. He also opined that in view of the composition of the population, accession should be conditional on the will of the people being ascertained after the raiders have been driven out of the state and law and order have been restored. After this meeting it was decided that the accession of Jammu and Kashmir should be accepted subject to the proviso that a plebiscite would be held in the state when the law and order situation allowed this decision. This had the fullest support of Sheikh Abdullah, noted Menon.

The circumstances of accession were peculiar. The Hindu Maharaja of the Muslim majority state had initially wanted to stay independent. He signed the Instrument of Accession on October 26, 1947, after Pashtun tribals aided by Pakistan invaded Jammu and Kashmir, and India agreed to help only on the condition of accession. The Schedule appended to the Instrument of Accession clearly gave the Indian Parliament power to legislate for Jammu and Kashmir on only three subjects – defence, external affairs and communications.

Faizan Mustafa writes, In Clause 5 of the Instrument of Accession, Hari Singh said that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. In Clause 7, he said: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”

Article 370 was a constitutional recognition of the conditions mentioned in the Instrument of Accession, and reflected the contractual rights and obligations of the two parties.

In his reply on October 27 1947, Lord Mountbatten responded, “it is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invaders, the question of the state’s accession should be settled by a reference to the people.”

Particularities of J&K accession

Noorani notes that Jammu and Kashmir accession was the only unique instance of being accompanied by a letter which the Maharaja wrote to Lord Mountbatten. The significant details of the letter state that “Jammu and Kashmir is contiguous to both the dominions it has vital economic and cultural links with both of them”. It also points out its international strategic significance with proximity to Soviet republic and China. He mentioned that “under the standstill agreement the Pakistan government was operating Posts and Telegraph system in the state” and that “Pakistan had tried to put pressure on the state to accede culminating in the communal tribal raids”. It added, “with the conditions obtaining at present in my state and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian dominion. Naturally they cannot send the help asked for by me without my state acceding to the dominion of India I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your government the other alternative is to leave my state and my people to free booters.”

In his reply on October 27 1947, Lord Mountbatten responded, “it is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invaders, the question of the state’s accession should be settled by a reference to the people.”

The accession thus was not permanent and irrevocable. It had to be settled by a referendum which was principally agreed to by the Indian government before and after the dispute went to United Nations. New Delhi took the case to the UN resulting in a UN resolution to resolve the dispute through a referendum after demilitarization from both sides, beginning with withdrawal of Pakistan Army from the state. Both India and Pakistan occupy the two parts of J&K and have kept the political dispute alive, giving rise to insurgency since 1989.

Article 370

On October 17, 1949, Article 370 was included in India’s Constitution by the Constituent Assembly after it was moved for consideration as Article 306A. In defence of the special status for Jammu and Kashmir during the Indian Constituent Assembly proceedings, N. Gopalaswamy Ayyangar had pointed out that the condition of the state was “not ripe for full integration” and reasoned that a significant degree of autonomy had to be given within the constitutional structure of the Indian Union. He said, “The effect of this Article is that the Jammu and Kashmir State which is now a part of India, will be a unit of the future federal Republic of India.”[iv]

Ayyangar said, “we have also agreed that the will of the people through the instrument of the Constituent Assembly will determine the constitution of the state as well as the sphere of union jurisdiction over the state. At present, the legislature which was known as the Praja Sabha in the state is dead. but neither the legislature nor the constituent assembly can be convoked or can function until complete peace comes to prevail in that state. We have therefore to deal with the government of the state which, as represented in its council of ministers, reflects the opinion of the largest political party in the state. Till a Constituent Assembly comes into being only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangements existing in the case of other states now if you remember the viewpoints that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system Article 306A is an attempt to establish such a system.”[v]

It is also a relevant piece of history that Article 370 (then Article 306A) was passed unanimously with only one dissenter. He was interestingly not the Hindu right-wing ideologue, Shyama Prasad Mukherjee, but Maulana Hasrat Mohani, founder of Communist Party of India. The latter’s objection was not to the grant of special status to Kashmir but he was seeking similar models of autonomy for all other states of India in pursuance of his concept of federalism.[vi]

Promise of referendum

The commitments to Kashmir’s special status and promise of a referendum were reiterated several times, thereafter. At a press conference on June 11, 1951, Nehru said, “we have made it perfectly clear that the constituent assembly of Kashmir was not meant and is not meant to come in the way of any decision which might flow ultimately from the security council’s decisions” in response to a question.

At another press conference in New Delhi on June 21, 1952 Nehru said, “when Security Council asked us about it we made it clear to the council again that the Kashmir government had every right to have a constituent assembly to frame the internal constitution but so far as we were concerned we would not be bound by their decision on the question before the Security Council”.

Subsequently in a speech delivered by Nehru in the Lok Sabha on 26th June 1952, Nehru said, “Let us suppose there was a proper plebiscite there and the people of Kashmir said ‘we do not want to be with India’. Well, we are committed to it. We would accept it. It might pain us but we would not send an army against them. We might accept that, however, much hurt we might feel about it and we would change our constitution about it.” In another important speech in the parliament on 7th August 1952, Nehru again said, “We do not want to win people against their will and with the help of armed force and if the people of Jammu and Kashmir state so wish it to part company from us, they can go their way and we shall go our way. We want no forced marriages no forced unions like this.” [vii]

Legal scholar, Faizan Mustafa, writes, “Some critics of Article 370 have argued that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status. However, the drafting of the Constitution ended on November 26, 1949 — Article 370 had been included before the Constitution was adopted.”

Conciliation and resolution, however, always remained peppered with mutual suspicions. Attempts to resolve Kashmir dispute came a cropper right in the beginning. New Delhi and Pakistan issued a joint communique on August 21,1953 to reiterate their commitment to holding a plebiscite on Kashmir and decided that the plebiscite administrator should be appointed by April 1954. Both the prime ministers of India and Pakistan took keen interests, following this significant communique with further correspondence and were nearing an agreement both with regard to a regional plebiscite and the choice of the plebiscite administration to be selected from an Asian State but signs of discord soon appeared.

Apparently, Nehru developed cold feet on the news of massive US aid for Pakistan and negotiations for a military pact between Pakistan and United States, invoking fears in New Delhi that United States would interfere in the Kashmir question. Nehru conveyed his apprehensions to Pakistan but even after the US-Pakistan pact was signed on May 15, 1954 Nehru said India still stands by her international commitments on the Kashmir issue and “will implement them at the appropriate time.”

These statements pointing to India’s reiteration of commitment towards referendum and settlement of Kashmir dispute are indications of the legality of Kashmir dispute. Kashmir’s accession to India and its consequent constitutional status were thus only interim arrangements. Article 370 was temporary only till the Constituent Assembly of Jammu and Kashmir could modify, retain or reject it. The Constituent Assembly of Kashmir before adjourning sine die in 1957 decided to retain it.

Legal scholar, Faizan Mustafa, writes, “Some critics of Article 370 have argued that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status. However, the drafting of the Constitution ended on November 26, 1949 — Article 370 had been included before the Constitution was adopted.”

Inevitability of special status and anxieties

The need to recognize the special status in view of the nature of partition and the history of Jammu and Kashmir coupled with the unique circumstances of its accession continued to be felt even as New Delhi remained uneasy with respect to the state’s Muslim majority status in conjunction with the hostile journey between India and Pakistan. The anxieties of the Muslims living within were reciprocal like Newton’s third law of motion; and both these eventually began to shape the aspirations and desires of the minorities of Jammu and Kashmir. The Indian state was not only mindful of both. It played up the latter to counter the former. But before that happened, Nehru was guided by the moral and democratic question.

Abdullah, who had played a key role in Kashmir’s conditional accession with India had expressed fears about the future of a Muslim majority region in India, thus, earning Nehru’s mistrust. When the Sheikh brought plebiscite demand out of the bag, it was a red herring for Nehru.

According to A.G. Noorani, the 1952 Delhi Agreement, between then Indian Prime Minister Jawaharlal Nehru and Kashmiri leader Shiekh Mohammad Abdullah, has explicitly given the solemn pledge to protect identity and culture of Kashmiri people by preventing outsiders to own land in the disputed region as well as to protect its demographic character in the Hindu majority India, an identical reason that compelled Hindu ruler to enact the law in 1923.

“So, the present government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. So, we agreed and noted this down,” Nehru told Indian parliament in 1952.

Abdullah, who had played a key role in Kashmir’s conditional accession with India had expressed fears about the future of a Muslim majority region in India, thus, earning Nehru’s mistrust. When the Sheikh brought plebiscite demand out of the bag, it was a red herring for Nehru.

Erosion of Article 370

These mutual anxieties and insecurities prompted New Delhi to manipulate Jammu and Kashmir’s politics and continuously make attempts to erode its special status and hollow out Article 370 after Sheikh’s deposition and arrest. The Presidential Order of 1954 and subsequent orders allowed the extension of almost the entire Indian Constitution to Jammu and Kashmir.

94 out of 97 entries in the Union List were applicable to Jammu and Kashmir, 260 out of the 395 Articles of the Constitution as well as 7 out of the 12 Schedules of the Indian Constitution were extended to the state before the Article 370 was completely decimated on August 5, 2019. Article 35 A, which defined the classes of persons who are, or shall be, permanent residents of the state of Jammu and Kashmir; or conferring on such permanent residents any special rights like employment in the state government and acquisition of immovable property, came into being through one such presidential order but only to lend clarity to the definition of Jammu and Kashmir’s ‘permanent resident’.

Eventually, the Constituent Assembly of Jammu and Kashmir enacted the Constitution of Jammu and Kashmir, which accepted the state’s position as an integral part of India while retaining the special status provided under Article 370. It also barred on the future Legislative Assembly from interfering with the constitutional relationship between the state and the Union. The full and final seal to Article 370 was stamped making it irrevocable.

Was Article 370 temporary or irrevocable

A common myth with respect to Article 370 is that it was temporary and thus could have been revoked any time. According to the constitution, Article 370 was a temporary provision in the Constitution to govern the state’s relationship with the rest of the Union but only till such time as the Constituent Assembly of Jammu and Kashmir met to determine the exact nature of the relationship. Eventually, the Constituent Assembly of Jammu and Kashmir enacted the Constitution of Jammu and Kashmir, which accepted the state’s position as an integral part of India while retaining the special status provided under Article 370. It also barred on the future Legislative Assembly from interfering with the constitutional relationship between the state and the Union. The full and final seal to Article 370 was stamped making it irrevocable.

The Jammu and Kashmir Constituent Assembly adopted a Constitution on November 17, 1956, to come into force on January 26, 1957. Its Article 3 stated that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Article 4 lays down that the territory of the State shall comprise of the territories which on the 15^th of August 1947 were under the sovereignty or suzerainty of the ruler of the State. It was also decided that the legislative assembly would consist of 100 members and 25 seats were to be left vacant “until the area of the State under the occupation of Pakistan ceases to be occupied…..”

Several court rulings in recent years are illustrative of the fact. In 2016, the Supreme Court acknowledged the special status of J&K and reaffirmed that Article 370 was not temporary. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir. In 2017, Delhi High Court rejected a petition that argued that Article 370 was temporary, and that its continuation was a fraud on the Constitution. The same year, the apex court said that due to historical reasons, Jammu and Kashmir had a special status. In April 2018, the Supreme Court said that the word “temporary” in the headnote notwithstanding, Article 370 was not temporary.

The verdicts prior to these were also on similar lines. In the famous 1968 case of Sampat Prakash versus State of Jammu and Kashmir, the apex court decided that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. “Article 370 has never ceased to be operative,” the Supreme Court laid down.

August 5, 2019 J&K Reorganisation Act

The watering down of Article 370, re-orientation of Jammu and Kashmir state, its division and creation of two separate union territories on August 5, 2019 thus brings into focus the legality of such a move, as is argued by constitutional jurists. The manner in which this was done raises questions of constitutional, moral and democratic propriety.

On August 5, 2019, the constitutional changes to Jammu and Kashmir were brought by a Presidential Order 272, a statutory resolution in the parliament that recommended the president to de-operationalise Article 370 and the J&K Reorganisation Act that broke up the state into Union Territories of Ladakh, without a legislature, and Jammu and Kashmir, with an emasculated legislature, under two all-powerful Lieutenant Governors, enabling Central Government to directly rule the state.

According to this presidential order, the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir was under President’s Rule and thus the consent taken was that of the Governor, virtually a representative of the central government. This was a case of the Centre taking its own consent to amend the constitution. This was ultra vires of the constitutional provision of Article 370, according to whose Clause 3 the recommendation of the Constituent Assembly of J&K was imperative to make any amendments. However, the Constituent Assembly of J&K ceased functioning in 1957.

The President invoked modification powers under Article 370 by issuing the Constitution (Application to Jammu and Kashmir) Order, 2019 to substitute the Constituent Assembly of the state with the Legislative Assembly of the state, thereby removing the constitutional requirement to convene a newly elected Constituent Assembly to determine the future of Article 370. Since President’s rule under Article 356 was in operation in Jammu and Kashmir, the government argued that Parliament can act as the Legislative Assembly of Jammu and Kashmir while recommending the abrogation of Article 370.

The Presidential order adds a sub-clause to Article 376, replacing the terms “Constituent assembly of Jammu and Kashmir” to mean “legislative Assembly of Jammu and Kashmir” and “government of Jammu and Kashmir” to mean “governor of Jammu and Kashmir acting on the aid and advice of the council of ministers”. The Presidential order also requires the concurrence of the government of the state. But since the state at that time was under presidential rule, the consent of the Governor, an appointee of the Centre, is meaningless as it virtually means that the government is taking its own consent to radically alter the constitution.

Legal experts on Article 370 revocation

“Even if the words can be replaced, it breaches the spirit of the provision. The Constituent assembly’s recommendation is essentially to include the key stakeholder’s voice while making substantial changes to Article 370. The Centre cannot do so unilaterally,” according to senior advocate Raju Ramachandran.

When a State is under President’s rule, Article 356 (1) (b) empowers the President to vest the powers of the Legislative Assembly of the state with the Parliament. But these powers are an interim arrangement for the enactment of laws till a new Legislative Assembly is elected, so that the state is not adversely affected due to the absence of an Assembly. The consent required under Article 370 (3) is not routine legislative power. It is a constituent power which determines the nature of the constitutional relationship between Jammu and Kashmir and the rest of India.

Faizan Mustafa argues that the presidential orders were issued against the letter and spirit of the Instrument of Accession and that the August 5, 2019 were “a negation of the constitutional compact” signed between India and the J&K Maharaja. Jammu and Kashmir had acceded to India in 1947, only on three subjects – defence, foreign affairs and communication. 

What the Central Government did was to use Article 367 which provides various guidelines about how the Constitution may be interpreted to remove the necessity of J&K constituent Assembly’s consent from Clause 3 of Article 370. This is the first time that Article 370 was used to amend Article 367 eventually to amend the Article 370 itself.

Gautam Bhatia, clarifies, “370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order.”

Thus, the interpretation of the special provision was altered to dilute the very provision and wipe it out without fulfilling the requirements under Clause 3 of Article 370. What the BJP government did by bringing a presidential order, a resolution and a bill to reorganize the state in the parliament on August 5 is to invoke modification powers under Article 370 to substitute the Constituent Assembly of the state with the Legislative Assembly of the state, thereby removing the constitutional requirement to convene a newly elected Constituent Assembly to determine the future of Article 370.

Faizan Mustafa argues that the presidential orders were issued against the letter and spirit of the Instrument of Accession and that the August 5, 2019 were “a negation of the constitutional compact” signed between India and the J&K Maharaja. Jammu and Kashmir had acceded to India in 1947, only on three subjects – defence, foreign affairs and communication.

Article 370 limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Gautam Bhatia writes, “Perhaps the most important part of 370 was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370.”

The proviso stated that: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

So, effectively, in view of dissolution of the legislative assembly in Jammu and Kashmir which is under president’s rule, the government arrogated the right of the assembly to the Parliament, where the BJP enjoys absolute majority. The August 5 changes were based on this flawed premise of deeming the J&K Governor as the legal and constitutional substitute for Constituent Assembly or even legislative assembly.

Secondly, presidential rule is temporary and therefore changes of permanent character like constitutional amendments without the existence of the elected legislative assembly amounts to a constitutional fraud.

In an interview, senior advocate Rajeev Dhavan said, “This order seeks to supersede a constitution—Jammu and Kashmir has a constitution devised by a constituent assembly. Therefore, Article 370 came into being [in 1950] while Jammu and Kashmir had not established its constitution. Article 370 was transitional only to the extent, and until, Jammu and Kashmir constitution came into place……… Jammu and Kashmir constitution [formed] by an independent constituent assembly is a fact—it is a legal fact, a spatial fact and a temporal fact. You cannot abolish it, as simple as that—it does not grow out of the [The presidential] order.”

Similar view was shared by legal expert, A.G. Noorani, who has authored a book on Article 370, among several other books on Kashmir. “The Indian government’s power to abrogate Article 370 had vanished after the dissolution of Kashmir’s Constituent Assembly in 1956. Article 370 was meant to express the identity of Jammu and Kashmir, because of the special circumstances, in which it acceded to India. And that identity is sought to be destroyed. It got a special status because of the historical circumstances,” he explained.

Emphasising that the Indian parliament was not empowered to either amend or delete the provision, Noorani said, “For this, the approval of the J&K State’s Constituent Assembly was necessary. Any concurrence of the state government is always subject to the elected assembly’s final approval. When the state is under governor’s rule or president’s rule, neither can accord that concurrence,” he said. “The Centre cannot acquire concurrence from its own handpicked appointee (Governor) removable at will,” he wrote in an article and termed the action by Indian government “illegal and against the spirit of its own constitution”.

The constituent assembly of Jammu and Kashmir did not exist on August 5, 2019. The legislative assembly was dissolved.  No consultations were ever held with any of the stakeholders turning this exercise into something that invokes a sense of humiliation among its citizens. Not only were the people’s special status rights snatched, they were also divided and granted a status that was much lower than the status of a fully integrated state in this forced integration process as per the J&K Re-Organisation Act that was subsequently passed on August 9, 2019.

There are four grounds to believe this assertion to be reasonably true.  1) The Instrument of Accession with Jammu and Kashmir was finalized with the provision of Article 370 in the Indian Constitution. 2) The Bill was not referred by the President to the state assembly 3) Governor is neither an equivalent of constituent assembly or legislative assembly and thus cannot arrogate on himself the legislative powers of the state government. 4) The illegitimacy of using Article 370 to amend Article 367 which in turn is used to completely make Article 370 redundant.

Senior Congress leader, parliamentarian and lawyer, Manish Tewari, in an interview with Kashmir Times, said that the grounds for bringing down Article 370 was laid down in December 2018 when the presidential proclamation, announcing president’s rule in Jammu and Kashmir, suspended proviso 2 of Article 3 of the Indian Constitution. He said that this was unique and removed the mandatory provision of consultation with the state legislature before re-organisation of any state.

J&K residents stripped of agency

Article 370 was amended, not revoked, neutered and made inoperative. By virtue of this dilution, all the Presidential Orders since 1950, including Article 35A that defined who a permanent resident is, protected the Muslim majority status of the state and protected the exclusive land rights of all its citizens, stood invalidated, and Indian constitution was extended to state of Jammu and Kashmir, truncated and demoted into two union territories in toto.

The constituent assembly of Jammu and Kashmir did not exist on August 5, 2019. The legislative assembly was dissolved.  No consultations were ever held with any of the stakeholders turning this exercise into something that invokes a sense of humiliation among its citizens. Not only were the people’s special status rights snatched, they were also divided and granted a status that was much lower than the status of a fully integrated state in this forced integration process as per the J&K Re-Organisation Act that was subsequently passed on August 9, 2019.

Effectively, the people of Jammu and Kashmir had not been consulted about their future by circumventing the constitutional provisions. Before the union home minister moved the legislation, 13-14 million people whose fate Parliament was deciding were virtually put under a siege with imposition of Section 144, excessive militarization and internet ban. With sweeping arrests and detentions, civil rights kept under prolonged suspension, what was abrogated were the last remaining vestiges of democracy in Jammu and Kashmir. A smooth transition from autonomy to complete integration was ensured by trampling the civil rights of its 14 million people under the sheer weight of military jackboots.

Even the pretense of democracy was discarded in doing this, making the residents of Jammu and Kashmir feel emasculated, humiliated and disenfranchised.

History of political, constitutional frauds

Political and constitutional frauds on Kashmir have been part of the last seven decades as Article 370 had been hollowed out and reduced, as infamously mentioned by former prime minister Gulzari Lal Nanda, to a “tunnel in the wall”, mostly through presidential orders and often papered with consent of the state legislature. Perhaps, the only similarity with the present case is the gross constitutional abuse in 1986 when the presidential order extended to Jammu and Kashmir Article 249 of the Constitution in order to empower the Parliament to legislate on the strength of a Rajya Sabha resolution and the concurrence was given by Centre’s own appointee, the then Governor Jagmohan.

Despite this similarity in the way concurrence was sought, August 5, 2019 presidential order was distinct as it signalled the absolute demolition of the edifice on which the compact between India and Kashmir was founded.

The constitutional change also sets a dangerous precedent for India’s federalism and its asymmetric federalism model, in which Jammu and Kashmir occupied the centre-space. Federalism has been part of the basic structure of India’s Constitution, as also upheld by the Supreme Court. Article 370 was an essential facet of India’s federalism because it governed the relationship of the Union with Jammu and Kashmir.

The August 2019 changes prompted A C Michael, Former Member of Delhi Minorities Commission to remark, “Through same act, Delhi’s statehood could be withdrawn by putting who is who of India residing in Delhi under house arrest. Same act, can be used to bifurcate states under the government of other political parties. A very dangerous precedence set by the present government for future governments. This is an emergency of another kind.”

The anxieties of the Centre repeating the J&K experiment elsewhere are deeper in several other states with certain special provisions. Article 35A closely resembles Article 371 of India’s Constitution that offers similar safeguards to the people of the north-eastern states with respect to government jobs, ownership and transfer of land and its resources. Under Article 371A, central laws do not automatically apply to the state unless approved by its legislature. The state enjoys full autonomy with respect to customary practices and laws with respect to land ownership and its resources. Similarly, in Manipur (Article 371C) and Arunachal Pradesh (Article 371H), the local laws safeguard the land and customary rights of tribals. With respect to Sikkim (Article 371F), even the Supreme Court’s jurisdiction has been restricted on issues of treaties. Ownership of property is also reserved in Uttarakhand, Himachal Pradesh, and parts of Jharkhand and Chhattisgarh, among other states. Maharashtra and Gujarat also enjoy a special status under Article 371. Under this provision, the President may provide for special responsibilities to the governors of the two states for establishing separate boards for Vidarbha and Marathwada (in Maharashtra), and Saurashtra and Kutch (in Gujarat), and equitable distribution of funds to these areas.

Pratap Bhanu Mehta aptly summed up the stealthy measures as a new form of repression “reminiscent of the Reichstag or Chinese constitutional ideology that sees federalism as an obstacle to a strong state and homogenous culture” and expressed concerns about India’s asymmetric federalism arrangements outside of Kashmir. He wrote that if such precedents of unilaterally declaring states to be Union Territory were to be applied elsewhere, we will simply become “a union of Union Territories that happen to be a state at the discretion of the Centre.”

“For the people of Jammu and Kashmir, what was lost was not just the special status of J&K with its emotive appeal but also the privileges and protections it gave to the residents of J&K.”

What changed for J&K

Several petitions challenging the J&K Reorganisation, including the de-operationalisation of Article 370, were filed in the apex court within weeks of the action. In July 2023, the Supreme Court began hearings on a daily basis and reserved the judgement. While that is expected to be delivered on December 11, 2023, the government has used J&K Reservation Act as basis for introducing sweeping legal and political changes in Jammu and Kashmir with far-reaching consequences. Many central laws have been extended to J&K and erstwhile state’s own laws have been repealed.

In a late-night move on March 31, 2020, one week after the Covid-19 nation-wide lockdown was announced, the Indian federal government announced the gazette notification altering over 100 J&K laws and totally repealing about 30 through a simple order called the J&K Reorganisation (Adaptation of State Laws) Order, 2020. More laws have been adapted, scrapped and altered ever since in the most arbitrary manner. The word ‘permanent residents’ was purged in the several clauses of various laws. More significantly, the Civil Services Recruitment Act was amended by replacing ‘permanent resident’ with ‘Domicile’, opening jobs in government services to Indian citizens outside the erstwhile state. Automatically, the clauses in all the acts of the J&K constitution, particularly with respect to jobs and land ownership, which required proof of being permanent resident – possession of a PRC – were rendered meaningless. In October 2020, the government repealed or altered 26 land laws with far reaching consequences for J&K’s population. Several other laws have been introduced since and fresh amendments were recently introduced or passed in the parliament.

For the people of Jammu and Kashmir, what was lost was not just the special status of J&K with its emotive appeal but also the privileges and protections it gave to the residents of J&K.

[i] A.G. Noorani, ‘The Kashmir dispute – 1947 to 2012’ – Volume II; Tullika books; 2013

[ii] Rakesh Ankit, The accession of Junagadh, 1947–48: Colonial sovereignty, state violence and post-independence India; Indian Economic & Social history Review; Aug 3, 2016

[iii] Stephen P. Cohen, Shooting for a Century: The India-Pakistan Conundrum; Brookings Institute, 2013

[iv]Article 370: A Short History of Kashmir’s Accession to India, August 6, 2019, EPW (https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india)

[v] Constituent Assembly Debates, 17 October 1949 (Noorani: Kashmir Dispute 1947-2012: Volume 2)

[vi] In an interview with Krishan Dev Sethi, one of the members of the Jammu and Kashmir constituent assembly, who was also witness to the debates on Article 306A that later came to be known as Article 370.

[vii] Noorani, Kashmir dispute

Courtesy: Kashmir Times

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AFGHANISTAN

Who are the minorities in Afghanistan?

Afghanistan has minorities based on religion, ethnicities and language. The religious minorities include Hindus, Sikhs and Christians which make for roughly 1% of the population (as per South Asia State of Minorities Report 2018). The ethnic minorities include Kyrgyzs, Balochs, Aimaqs, Ismailis, Brahuis, and Nuristanis etc which comprise 1% or less each (as per Asia Foundation report of 2014).

How many Hindus, Sikhs and Christians are there in Afghanistan?

Although a proper census has not taken place in Afghanistan in decades, surveys conclude that there are 220 Hindu and Sikh families in Afghanistan. According to 2009 report of the Bureau of Democracy, Human Rights and Labor of the US State Department, Christian Community size ranged from 500 to 8,000 back then.

By what measure has the Hindu and Sikh population in Afghanistan reduced?

As per an Afghan researcher studying the minority religions of Kabul, in the 1970s, there were around 700,000 Hindus and Sikhs. In 1992, Hindus and Sikhs were a 220,000-strong community just before civil war in Kabul.

What is the reason for the decline in Hindu and Sikh population in Afghanistan?

As per an Al Jazeera article of 2017, many Hindus and Sikhs fled the country majorly due Kabul war and religious persecution.

How many refugees have come from Afghanistan to India?

As of July 1, 2018, there were 14,500 refugees registered with UNHCR who came to India from Afghanistan.

PAKISTAN

Who are in minority in Pakistan?

The religious minorities of Pakistan include Christians, Hindus, Sikhs, Ahmadiyya and Shias.

What is the latest available data on population in Pakistan?

Since Pakistan has not released religion wise data of its latest 2017 census, one has to refer to its last released data of 1998. No census has taken place in Pakistan between 1998 and 2017.

Which is the largest minority in Pakistan?

As per its 1998 census, Hindus are the largest minority in Pakistan comprising of 1.6% of the population.

As per census 1998 figures can one estimate the Hindu Population of Pakistan?

Yes. If the Hindu population is assumed to be stable at 1.6% then one can say Hindus in Pakistan comprises of 3.3 million people.

How much is the composition of other minorities in Pakistan?

Christians comprise of 1.59 % of population and Ahmadiyas were at 0.22% as per 1998 census data.

As per reports which religious groups face discrimination in Pakistan?

As per Global Human Rights Defence 2019 report, religious minorities, including Christians, Hindus, Sikhs, Ahmadiyya and Shias, face discrimination due to their faith.

Who are Ahmadiyyas of Pakistan?

Ahmadiyyas are a Muslim community. Ahmadiyyas believe the Messiah Ghulam Ahmad lived after Islam’s prophet Muhammad. In 1974 they were declared non-Muslims by Pakistan government and have since faced social and legal discrimination in the country.

Does the Shia community in Pakistan suffer?

Yes. While such was not the case since the time of partition, things changed for worse for Shias in Pakistan after 1979 when Islamic Revolution started in Iran. Even an anti-Shia terrorist group was formed in Pakistan called Anjuman-e-Sipah-e-Sahaba. According to data collected by South Asia Terrorism Portal (SATP), around 2,693 Shias were killed until June 2018, in targeted attacks and bomb blasts.

Do Hindus face persecution in Pakistan?

Yes. There are reports of Hindu girls facing kidnappings and forced conversions in Pakistan. There are also reports of Hindus, along with other religious minorities, being targeted under charges if blasphemy under the stringent law as also attacks on Hindu temples. As per a list prepared by US based platform, Open Doors, Pakistan ranked at 4 among top 10 nations inflicting persecution on non-Muslims.

Are there any other marginalized non-religious groups in Pakistan?

Yes, as per MinorityRights.org Dalits in Pakistan are a part of not just Hindu and Christian communities, but Muslims as well. According to the International Dalit Solidarity Network, Pakistani Dalit representatives state that their actual population could be as high as 2 million in Pakistan.

How many Pakistani Hindus have migrated to India in recent times?

There is no official figure on number of Pakistani Hindus in India, however, in response to a query by BBC, Indian government said that 1,400 Pakistanis have been given citizenship since 2011 and majority of them were Hindus.

BANGLADESH

Who are religious minorities in Bangladesh?

As per MinorityRights.org, Hindus, Buddhists and Christians are the religious minorities in Bangladesh.

What is the composition of minorities in Bangladesh?

As per 2011 census, Hindus comprise 8.5%, Buddhists make up 0.6 % and Christians form 0.3% of Bangladesh’s total population.

Has the Hindu population in Bangladesh declined?

Hindus comprised 9.2% of the population as per 2001 census while as per 2011 census Hindus comprise 8.5% of the population.

However, Bangladesh Bureau of Statistics (BBS) released their vital sample statistics report which measured Hindu population at 1.70 crore by the end of 2015 which was an increase from 2014 figures of 1.55 crore Hindus in Bangladesh. BBS statistics are based on random sampling.

Which religious groups/sects are persecuted in Bangladesh?

The above-mentioned religious minorities face persecution in Bangladesh along with Ahmadiyyas and Shia Muslim communities.

How are Muslim sects targeted in Bangladesh?

The Muslim communities of Shia and Ahmadiyyas are targeted in Bangladesh by acts of terror such as bomb blasts in their religious processions or attacks on their mosques. There are reports that Ahmadiyyas face the worst kind of persecution on a daily basis whereby they are ridiculed for following their faith and are obstructed while burying their dead and often face social ostracism.

Resources

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The Trinamool Congress delivered body blows to the BJP in all three constituencies where bye elections were held in November, winning even the state BJP state chief’s constituency! So how exactly did the all-powerful and extremely well-funded BJP snatch defeat from the jaws of victory?

Look no further than its misadventures on the subject conducting a National Register of Citizens (NRC) exercise across India. While the BJP investigates the reasons behind its failure, there are whispers by party members themselves that it was the manner in which the subject of NRC was approached that tanked their chances of success.

Bengal had already witnessed what was happening next door in Assam where over 19 lakh people were left out of the final NRC published on August 31, 2019. In fact, panic cause by the NRC has already led to a spate of suicides in Bengal. It was these concerns that the BJP failed to address as it brandished about its shiny NRC-CAB double edged sword.

BJP Chief Amit Shah has never minced words about the party’s desire to replicate Assam’s NRC across India. He reiterated his government’s commitment to conducting a nationwide NRC in the Lok Sabha recently. Bengal has been a much-coveted state for the BJP that is desperate to make further electoral gains in the state following the 2019 general elections where it made significant inroads. 

Meanwhile, West Bengal Chief Minister and TMC chief Mamata Banerjee has been extremely vocal about her determination to ensure a similar exercise is not conducted in her state. It is noteworthy though, that Banerjee has come a long way since her 2005 campaign against illegal migrants from Bangladesh, a move many political pundits attribute to minority appeasement for cultivating a dependable vote bank.

In fact, the BJP’s Kaliaganj candidate Kamal Chandra Sarkar told The Telegraph, “Trinamul went on campaigning on NRC and highlighted the consequences. On the other hand, our leaders went on asserting that our party is determined to introduce it in Bengal, which is why it backfired. As a result, a section of voters did not support us this time like they had in the parliamentary polls.”

Kaliaganj has a large population of Rajbanshis, as well as refugees and alleged illegal migrants from Bangladesh. It is alleged that right wing supremacist organisations wanted to club together Rajbanshis and Bengali Hindu migrants and refugees, leaving those from the Muslim community to bear the brunt of the proposed Citizenship Amendment Bill (CAB). Karimpur shares a 25-kilometer-long border with Bangladesh and it is alleged that close to a quarter of the electorate comprises Bangladeshis who crossed the border in wake of the 1971 war. The talk of NRC is therefore a huge cause for concern, putting any party, that advocates it, on shaky ground.

Thus, results in these constituency were a clear indication of public rejection of a divisive agenda and the politics of fear.

Related:

WB bye elections: TMC knocks the wind out of BJP, wins all three constituencies
TMC-BJP face off in crucial by-polls in Bengal
Bengal Suicide: Panic over NRC is taking lives

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Following the judgment of the Supreme Court which upheld the disqualification of 17 MLAs of Karnataka Assembly, but did not debar them from contesting elections again, in absence of any constitutional provision for the same, the BJP issued a press release on November 14 declaring the names of candidates from their party who would be contesting the bye-elections. This included 13 MLAs from the Congress-JD(S) alliance, who were disqualified by reason of having defected. The Chief Minsiter, B S Yediyurappa declared that the rebel legislators would be given ministry portfolios. “These MLAs have sacrificed everything to ensure that the BJP comes to power in the state. Due to this, all BJP workers should join hands and ensure that they are re-elected to the Assembly,” he said.

Part of the press release:

Background

The results of Assembly elections in Karnataka were declared on May 15, 2019 in which BJP had won 104 seats and congress had 78 seats. Janata Dal (Secular) had acquired 37 seats. A coalition government of Congress and JD(S) was formed but this government only lasted for 14 months as the Chief Minister, Kumaraswamy lost the trust vote in the House on July 23, 2019. Following the trust vote which went against the coalition government, a few disqualification orders were passed by the Speaker leading to the disqualification of 17 MLAs, 15 of which belong to the Congress party, 1 belonged to JD(S) and one was an independent candidate of KPJP (Karnataka Pragnyavantha Janatha Party). Dissatisfied by these orders, the MLA’s approached the Supreme Court by filing 9 writ petitions.

The judgment

The judgment authored by Justice N.V. Ramana was unanimous from a bench including two other judges, namely, Justice Sanjiv Khanna and Justice Krishna Murari. The judgment which is about a 100 pages delves into the details of the authority of the Speaker of a Legislative Assembly as provided for the Constitution, thescope of judicial review in a decision of the Speaker and the law of defection. The court observed with disdain that there has been a trend of Speakers of Legislative Assemblies acting against their constitutional duty of being neutral and also how horse trading and defection have denied the citizens stable governments.

The Four Main Issues

1. Whether the Writ Petition challenging the order of theSpeaker under Article 32 is maintainable?

“In Jagjit Singh v. State of Haryana[1], (this court) has   explicitly   held   that   a   challenge   to   an   order   of disqualification under the Tenth Schedule is available under the writ jurisdiction of this Court.”

The Court however noted, “that by challenging the order directly underArticle 32, the Petitioners have leapfrogged the judicial hierarchy as envisaged under the Constitution.”

The Court still proceeded with the matter since certain interim orders had already passed by a co-ordinate bench of the court in one of the writ petitions and so that the same exercise is not repeated before a High Court, to save the precious time of judiciary, the Supreme Court heard the matter on merits.

Giving rest to this issue, the bench finally noted,“Despite the fact that this Court has sufficient jurisdiction to deal with disqualification cases under the writ jurisdiction, a party challenging a disqualification order is required to first approach the   High   Court   as   it   would   be   appropriate,   effective   and expeditious remedy to deal with such issues.”

2. Whether the order of the Speaker rejecting the resignation and disqualifying the Petitioners is in accordance with the Constitution?

While examining the scope of judicial review in case of rejection of resignation of members by the Speaker, the court held thus, “Determination ofwhether the resignations were “voluntary” or “genuine” cannot be based on the ipse dixit of the Speaker, instead it has to be based on his “satisfaction.  Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine…. This satisfaction of the Speaker is subject to judicial review.” Article 190(3)(b) provides that the resignation tendered by the members should be voluntary and genuine and the Speaker should be satisfied that the resignation is voluntary and genuine. This was a proviso inserted by the 33^rd Amendment Act, 1974.

The Court held that “genuine” referred to the authenticity of the resignation letter and “voluntary” meant a resignation which is not based on threat, force or coercion. The Supreme Court dismissed the contention that the Speaker can go into the motive of the member behind such resignation.

The court finally held that, “Once it is demonstrated that a member is willing to reign out of free will, the Speaker has no option but to accept the resignation. It is constitutionally impermissible for the Speaker to take into account any other extraneous factors while considering the resignation.”

The Court refused to admit that after tendering of resignation an order of disqualification is not valid. The court instead held that, “If we hold that the disqualification proceedingswould become infructuous upon tendering resignation, any member   who   is   on   the   verge   of   being   disqualified   would immediately   resign   and   would   escape   from   the   relevant sanctions in the Constitution.” The Court also held that “Courtsare obligated to take an interpretation which glorifies   the democratic sprit of the Constitution[2].” The court further held that in this case, the act which resulted in the eventual disqualification took place before the tendering of the resignation and hence the resignation tendered, even if before the disqualification order would not be upheld.

3. Even if the Speaker’s order of disqualification is valid, does the Speaker have the power to disqualify the members for the rest of the term?

The Speaker had issued the disqualification orders as the petitioners had voluntarily given up the membership of their respective political parties, which was apparent from the fact that the members did not attend meetings called by the party, despite of having been issued a whip, for one reason or the other, which were eventually held to be invalid and false, in some cases.

The Court, further, drew a distinction between two types of disqualifications of members of Legislative Assembly, as provided for in Article 191(1) and (2) of the Constitution.  While Article 191(1) disqualifies a member for being chosen as and for being a member, Article 191 (2) which deals with disqualification under the Tenth Schedule, provides for disqualification for being a member. This means that a member disqualified under the tenth schedule is only disqualified from being a member and it is inferred that such a member can contest elections again.

While upholding only the disqualification part of the orders, the Court held, “The Speaker, in our view, had concluded based on material and evidence that the members have voluntarily given up their membership of the party, thereby accruing disqualification in terms of the Tenth Schedule, which facts cannot be reviewed and evaluated by this Court in these writ petitions. So, we have to   accept the orders of the Speaker to the extent of disqualification.”

The court further held that, “ Since neither the Constitution nor any Act provides for defection to another party as a bar from contesting   further   elections,   reading   such   a   bar   into   the nebulous concept of the inherent powers of the Speaker is impermissible and invalid.”

The Court also held that sufficient opportunity was given to the petitioners of being heard and hence the disqualification order were not in violation of principles of natural justice.

4. Whether the issues raised require a reference to the larger Bench?

The Court held that question of constitutional interpretation would arise only if two or more possible constructions are sought to be placed on a provision, which was not the situation in this case. Hence, the issues did not require a reference to a Constitution Bench.

The Defection Menace

The issue of defection has preoccupied the national conscience from the 1960s. Having experienced earlier Governments falling due to such practice, the legislature introduced the bill inserting the Tenth Schedule (Provisions as to Disqualification on Ground of Defection) in the Constitution, for discouraging such practice. In Kihoto Hollohan v. Zachillhu[3], this Court, about the Tenth Schedule, had observed, “The object is to curb the evil of political defections motivated by lure of office   or   other   similar   considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who   is   found   to   have   defected   from continuing as a Member of the House.”

As a deterrent to defection, a few other Articles were added to the Constitution [75(1B), 164(1B) and 361B], which barred any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re­elected to the legislature, whichever is earlier.

The provisions of the Tenth Schedule however fall weak when dealing the problem of defection as a whole, since if the defecting member is allowed to contest for the by elections of the same term, it is likely that they will get elected again and their disqualification in the first place would hold no value. The Court hence mentioned that the parliament ought to reconsider the provisions of the tenth Schedule to discourage such undemocratic practices.

Key takeaways:

• Speaker is a quasi-judicial body and his/her decision is not completely outside of judicial review
• The Court observed that there is a dire need for amendment to the Constitution in order to include stronger deterrents in case of defection.
• A resignation tendered by a member does not amount to him not being a member and a disqualification order still holds against such member, especially if the act of defection occurred before the resignation.
• The right legal approach in cases of disqualification of MLAs is to approach the High Court first, for it to decide the case on its merits.
• This case does not set a precedent on the amount of time to be provided by the Speaker to respond to a hearing of a disqualification petition. In this case, even though only 3 days’ time was granted, it was held to be valid by the court, in the light of the unique facts and circumstances of the case.
• The Constitution does not debar a member disqualified under Tenth Schedule from re-contesting elections even within the same term.

The full judgment can be read here:

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To be, or not to be, that is the question:

Whether ’tis nobler in the mind to suffer

the slings and arrows of outrageous (RTI applications) fortune,

or to take arms against a sea of (information requesters) troubles

and by opposing end (their right to know) them.”

(with apologies to Shakespeare for a poor parody of his creative genius and Hamlet- the brooding Prince of Denmark)

Unlike his contrarian predecessor, the present Chief Justice of India, Ranjan Gogoi has, in concert with four brother Justices, declared his august office, covered by the RTI Act. In its 15^th year of implementation, this unanimous opinion of the Constitution Bench (CB) strengthens the transparency law in many ways and paves the way for bringing another constitutional authority, namely, the Governor of a State under its compass. That question of law opened up twelve years ago through an RTI application penned by a former Union Defence Minister when he was the Leader of Opposition in Goa. Although the appeal case itself has been dismissed and the applicant is no longer with us, the Apex Court is yet to constitute another Bench to answer this important question of law.

In the latest case that the CB has decided, the RTI applicant Subhash Chandra Agarwal’s, the wait was not any less protracted. Three of his RTI applications, which formed the subject matter of the dispute are more than a decade old. Curiously, two of them have been referred back to the Apex Court’s Public Information Officer (PIO) for making a decision in accordance with the expansive procedures laid down by the law and the principles of interpretation explained by the Bench collectively and by Justices Ramana and Chandrachud, individually. Whether or not the information continues to have any currency, the RTI applicant will have to tell us. Will he move the Courts again this time on questions of fact, if the PIO rejects the requests after following due process, is a moot question. The struggle for transparency even in the judicial realm is not any easier than it is in the executive sphere, going by the experiences of millions of private citizens.

Leaving the facts of the three cases aside, the common and individual opinions penned by the Justices clarify several interpretational matters for the benefit of both the seekers and holders of information. However, in some respects, they also pose serious challenges to the already well-established understanding of the interplay between the right of access to information and the grounds for rejection of such access. In a couple of places, lay readers are likely to end up in confusion about the seeming divergence of views between the common opinion and the individual opinions of the Justices. In this piece, I hope to illustrate these issues in brief in order to encourage the readers to negotiate the 250-page long judgement to make their own determination about the import of this judicial milestone of sorts.

Let us start with the many positives for which the judgement deserves unqualified appreciation. First, despite not intending it to be so, because the facts of the cases related to accessing information from a State institution, the explication of Section 2(f) is a very welcome jurisprudential development. While the first limb of the definition of ‘information’ brings within its scope a wealth of forms in which information may be held by a public authority, such as samples and models of materials used, in addition to conventional records, logbooks, reports, written opinion and advice, electronic data and emails, it also includes information that a public authority may access from any private body under the provisions of any other existing law.

The CB’s conjunctive interpretation of the term ‘information” and “right to information” which is “under the control” of a public authority clarifies that it has a duty to collect information about a private hospital, school, shop, hotel, firm or factory, under lawful authority of course, and furnish it to an RTI applicant in accordance with the Act’s provisions even though such information was not held in material form in its records at the time of receiving the request. This provision has not been used to the fullest and wherever attempts were made, PIOs often resisted the performance of such duties. This judgement is a potent tool in the hands of RTI applicants who would like to make private entities that are not directly covered by the Act, more transparent about their activities.

Second, both the common and individual opinions of Justice Chandrachud contain a very detailed discussion of how to interpret “public interest” in the context of disclosure of information which is rejected by a PIO by invoking one or more grounds listed in Section 8(1) of the Act. Readers familiar with the RTI Act will recall, ten clauses in Section 8(1) contain more than 30 grounds on which information sought by an RTI applicant may be legitimately refused. However, these exemptions are subject to a later clause that requires even such information to be made public if by so doing the larger public interest will be served better.

Justice Chandrachud’s opinion, in particular, builds upon the gold standard of interpretation of how to balance competing for public interests favouring transparency and continued confidentiality that Justice P. N. Bhagwati (as he then was) developed in S. P. Gupta vs President of India & Ors. in 1981. Not only is this portion of Justice Bhagwati’s opinion highlighted for the benefit of the reader, a non-exhaustive list of factors that must be taken into consideration while performing such a balancing test is also underscored. Factors such as likelihood of disclosure causing embarrassment to the Government – a criterion that continues to guide the labelling of official records as “secret” or confidential” within the Government, or the RTI applicant’s likelihood of misunderstanding or misinterpreting the contents of a record or the high seniority of the author of an official record are all irrelevant considerations for the purpose of applying the “public interest test”.

The Department of Personnel and Training which often loses no time in sending out circulars highlighting regressive interpretations of the RTI Act contained in occasional judicial pronouncements would do well to show similar enthusiasm in circulating these portions of the judgement to PIOs, First Appellate Authorities and Information Commissions. This will go a long way in shedding ossified practices of denying access to information on such frivolous grounds.

Third, the common opinion consigns to the dustbin of history, the penchant of public authorities and even many an Information Commissioner to refuse to treat an individual’s quest for justice by seeking information, as a matter of “public interest”. All five Justices have agreed that public interest has “no relationship with the number of individuals adversely affected by disclosure or the number of individuals wanting such disclosure. The decision will vary depending upon how the public interests in maintaining the exemptions will be balanced with those favouring disclosure depending upon the facts and circumstances of every case.

Some readers might scorn at this ‘case-to-case’ approach as it lends no fixity to the concept of “public interest” but that indeed is the inherent strength of the method. It is not based on treating an entire class of information as being exempt for all time to come. What matters ultimately is the effect of disclosure- the facts and circumstances of each case- will it harm a public interest already listed in the exemptions or be beneficial to the public interest or remain neutral. Only the first effect requires continued confidentiality. The common and individual opinion of Justice Chandrachud provides very useful guidance to public authorities in this regard, if only they were to read it intently.

Now moving on to the challenges and confusion that the judgement poses to the implementation of the RTI Act. Much has already been said and will continue to be said about the interface between the fundamental rights to privacy and to access information from public authorities- both being judicial discoveries as Part III of the Constitution does not make a reference to them at all. The CB has itself hoped that some of the tensions in the interplay of these two rights are likely to be resolved with the enactment of the long-pending personal data protection law. So also with the clarification of the conditions in which fiduciary relationships arise and become a brake on the drive for greater transparency. We will not dwell on these topics in any detail.

Perhaps the most deleterious impact of the common opinion on the RTI regime may be said to be the inclusion of “motive” of the RTI applicant as a relevant factor while administering the public interest test. The CB recognizes that the purpose of the information seeker will have no relevance while making a decision on an RTI application but it will be a relevant factor while applying the public interest test to decide whether exempt information may be disclosed (para #79). This despite the CB recognising the existence of a bar on compelling an RTI applicant to disclose her or his motive while seeking information under Section 6(2).

Strangely, nowhere in the common or the individual opinions is Section 19(5) of the RTI Act even mentioned. Under this provision, the burden of proving why the requested information must remain exempt is on the PIO. The RTI Act does not place a corresponding obligation on the RTI appellant to explain motives for demanding access to information at any stage of the internal and external appeals. It is not clear whether this matter was brought to the notice of the Justices at all in the pleadings and written submissions.

This significant and embarrassing lapse is likely to embolden public authorities and Information Commissions to insist on a declaration of the purpose of seeking not just exempt information but eventually all information. It is very well known that decisions of PIOs and appellate authorities, not to mention several Information Commissioners, often raise this point when their obvious intent is to prevent disclosure of the requested information.

Second, the common opinion divests the PIO of the power coupled with a duty to direct disclosure of exempt information on grounds of public interest under Section 8(2) of the RTI Act. Instead, the CB has declared that this is a “discretionary power” exclusively vested with the “public authority” which the PIO represents (para #27). It is respectfully submitted, this interpretation creates two problems.

First, under Section 8(1)(j) of the RTI Act, the PIO is clearly vested with the power of making a decision to disclose personal information of an individual other than the RTI applicant (after following due procedure of third party interests are attracted as per the terms of Section 11 of the Act). That power coupled with duty cannot be taken away through judicial pronouncement unless the Court wants to supplant legislative intent, which it has always abhorred and avoided.

Second, the only clear finding on a question of fact in the entire case is the determination that the Supreme Court as established under Article 124 of the Constitution is one “public authority” and the CJI’s office is part of the same public authority. So if the “public authority” is an institution, who, then in such an institution as well as in other similarly labelled institutions will wield the power to determine whether exempt information will be disclosed under the terms of Section 8(2) of the Act? The common and individual opinions are silent on this point.

Next, the explication in both the common and individual opinions of the manner in which competing public interests must be harmonized and the factors that will be relevant or irrelevant for the purpose of determining public interest in favour of disclosure or otherwise, clearly indicates that it is in the nature of a quasi-judicial function. Where is the scope for applying any “discretion” in matters where the competing public interests must be balanced? It is respectfully submitted that “discretion” will only colour the entire exercise with arbitrariness.

Third, with the deepest respect to the wisdom of the Justices, it must be pointed out that the common and individual opinions betray a contradictory approach with regard to the manner of application of exemptions. This point cannot be illustrated without delving a bit into the jurisprudential development around the manner of invoking of exemptions. If memory serves us right, the earliest explanation of how exemptions must be invoked is found in Justice Ravindra Bhat’s opinion in Bhagat Singh vs Chief Information Commissioner & Ors., of 2007 when he served in the Delhi High Court. In that judgement, Justice Bhat (now elevated to the Apex Court) pointed out that exemptions listed in Section 8(1) of the Act, being exceptions to the general rule of transparency contained in Section 3 must be construed strictly.

In several other matters decided by the High Courts of Kerala, Madras and Calcutta, this interpretational rule was accepted. However, the Apex Court overturned that position in 2011 while deciding Central Board of Secondary Education & Anr. vs Aditya Bandopadhyaya and Ors., (see slide 35 at this weblink). The Court said that the exemptions must not be treated as “fetters on the right to information”, instead a harmonious approach must be adopted to balance these competing public interests. This position reiterated in ICAI vs Shaunak H. Satya delivered the same year and subsequent judgements of the Apex Court is also appreciated and explained in the common opinion of the CB. However, the individual opinion of Justice Ramana contains a discordant note as it gives currency to the approach several High Courts adopted between 2007 and 2011.

After lending his name to the common opinion, at para #23 of his individual opinion, Justice Ramana writes as follows:

“There is no doubt it is now well settled that exemption clauses need to be construed strictly. They need to be given appropriate meaning in terms of the intention of the legislature.”

In our humble opinion, this is also an area that needs some curative action from the Apex Court to avoid the embarrassment of contrary opinion being presented by a Justice at two different places on the same issue.

Fourth, both the common opinion (para #26) and the individual opinion of Justice Chandrachud (para #75) treat seven of the ten exemptions listed in Section 8(1) of the RTI Act as “absolute” in character where the PIO is barred from disclosing such information even if the larger public interest in disclosure outweighs the harm caused to the protected interests. Three exemptions relating to commercial confidence, trade secrets and intellectual property, information covered by a fiduciary relationship and the last clause which protects personal privacy are not absolute in so far as they are tempered specifically by public interest override clauses. In our humble opinion this characterization is not in accordance with legislative design and intent.

Most of the blame for this confusion must lie with the draftspersons and we the advocates of transparency who pushed Parliament to legislate without cleaning up the initial draft. The RTI Bill tabled in Parliament did not contain an omnibus public interest clause which now exists as Section 8(2) in the Act. Instead, Section 8(2) in the original Bill contained what is now a proviso underneath Section 8(1) which contains the noble principle that information which cannot be denied to Parliament or a State Legislature cannot be denied to any citizen. Only clauses under Sections 8(1)(d), 8(1)(e) and 8(1)(j) whose contents are explained at the beginning of this paragraph were subjected to a public interest override clause.

The omnibus public interest override clause was inserted as Section 8(2) upon the recommendation of the Parliamentary Committee which vetted the Bill with copious inputs from civil society advocates, lawyers and academics. Due to the rushed passage of the final version of the Bill (on the last days of the Session of both Houses of Parliament), the draft was perhaps not cleaned up (the hard copy of the gazette notification of the Act contains at least two typographical errors even now). So the public interest override element stays in the three exemption clauses in addition to the omnibus clause as part of the law and is the source of this confusion.

However, a basic principle of interpretation of the law is that Parliament intended for every word and formulation to exist in the manner it is crafted and visible in the final text adopted and notified after Presidential assent. So the doctrine of harmonious construction comes to play to resolve any conflict between two or more provisions oflaw. It is respectfully submitted that characterising seven out of ten exemptions clauses as being “absolute” does not amount to harmonious construction but amounts to doing injustice to legislative intent. We hold this view for multiple reasons. First, if Parliament had intended for these exemptions to be absolute then the opening limb of Section 8(1) would have read- “The following information shall not be provided or disseminated” in the manner of Section 3(3) of Nepal’s Right to Information Act enacted in 2007. Several other countries place such a prohibition which can be realistically termed “absolute”.

The Indian RTI Act, however, takes a different approach. The opening limb reads” Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen…” In our humble opinion, this implies- a citizen cannot reasonably expect to get information covered by these exemptions as a matter of right- a principle which the common opinion also recognizes. However, that does not turn seven of these clauses into absolute exclusions.

First, Section 8(2) provides the exception to these exemptions- so they cannot be termed exclusions at all.

Second, Section 8(3) prohibits the invoking of seven out of ten exemptions for information that is more than 20 years old. This 20-year rule applies to five of the seven exemption clauses which the common opinion characterizes as absolute. So here again the characterization of these exemptions as absolute is not sustainable in our humble opinion.

Strangely, this important provision does not merit even a mention in either the common or the individual opinions of the Justices. Unless these confusions are cleared up through a curative petition, public authorities are likely to misuse this portion of the judgement to deny access to more and more information which was not the intent of Parliament in the first place.

Last, but without putting too much emphasis on it as it is most likely to be the handiwork of a negligent law clerk which went unnoticed, Justice Chandrachud’s opinion contains a howler. The seminal paragraph where the citizens’ right to know was discovered for the first time by another 5-Member Constitution Bench in State of U.P. vs Raj Narain, was authored by Justice K. K. Mathew and not the then Chief Justice of India, Justice A. N. Ray as attributed in this opinion.

However, it must be acknowledged that despite the cautious manner in which the common opinion seeks to strike a balance between citizen’s access to information about how judges are appointed (a point which has been remanded back to the PIO for afresh decision) and the need for ensuring the independence of the judiciary and preventing possible attacks on the reputation of candidates for judgeship in the constitutional courts, Justice Chandrachud mentions a non-exhaustive list of essential norms in regard to judicial appointments in his opinion.

Will the PIO reveal the norms that went into the elevation of certain judges over and above others, now that the RTI application has been remanded to him for fresh consideration remains to be seen. What objections will the individuals so elevated will pose to making this information transparent also becomes a matter of immense public interest? How effectively will the PIO apply the tests and the interpretative tools laid down by the common and the individual opinions remains to be seen as well?

At the other end of the spectrum of this creative tension characterizing the adjudication undertaken by the CB is the anxiety expressed by Justice Ramana that RTI could become a potential tool of surveillance to scuttle the effective functioning of the judiciary.

With the deepest respect and in all humility it is submitted that RTI cannot be equated with the tools that empower the government to conduct surveillance over anybody- citizens and high public functionaries alike. The latter is abhorrent to human dignity and a violation of basic human rights and freedoms when attempted in an illegal and illegitimate manner.

The RTI Act contains adequate safeguards as noted by the Hon’ble Justices themselves that have convincingly until now and will in the future prevent disclosure of information that should legitimately remain under wraps. If not, these three cases would not have reached the Supreme Court’s high table of justice.

(Venkatesh Nayak is Head, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi. Views are personal.)

First published in https://theleaflet.in/

The post SC, CJI under RTI: Examining the Verdict appeared first on SabrangIndia.

Mumbai: India ranked 82nd among 128 countries for generosity over the last 10 years, as per the 10th World Giving Index (WGI). 

Up to a third of Indians helped a stranger, one in four donated money, and one in five gave their time volunteering, the report said, attributing India’s low ranking to its strong culture of unorganised and informal giving to family, community and religion. It recommended more formal mechanisms of donating to charity.

The report, published online in October 2019, was based on surveys of 1.3 million people in 128 countries over the last 9 years (2009-2018). It asked interviewees if they had helped a stranger, donated money to charity or volunteered their time in the past month. The surveys used Gallup World Poll data and were commissioned by Charities Aid Foundation (CAF), a UK charity that provides services and assistance to international charities and their donors.

India’s rank on the Index has yo-yoed vastly, the lowest being 134th in 2010 and the highest being 81st last year. This year’s report aggregated data for each country for the last 10 years. India’s overall WGI score this year was 26%.

Source: World Giving Index 2019 report

India and the World

Of the top 10 countries, seven are among the wealthiest in the world. Yet, global generosity is on the decline, stated the report, highlighting that individual giving is now lower in countries with long histories of philanthropy such as the United States, Canada and the United Kingdom.

“The top ranking countries will usually have a strong culture of giving, or are more developed,” said Meenakshi Batra, who leads CAF India, a non-profit organisation that works to enable effective giving. “Individuals have more resources to give and there is infrastructure for them to give to formal organisations.”

Source: World Giving Index 2019 report

India’s 26% WGI score was less than half of 58% scored by the United States in the top spot. China, with a score of 16%, was at the fag end of the index. The Asian giant also had the lowest score for all three measures considered–helping a stranger, donating money and volunteering.

New Zealand, on the other hand, was the only country to appear in the top 10 on all three counts.

India fails to match Asia’s pace

Five of the 10 countries to have improved their rankings the most on the giving index were in Asia. Indonesia, the country that improved its ranking the most, moved into the top 10 for donating money and volunteering. Sri Lanka achieved the highest score for volunteering in the world; at 46%, its volunteering score was more than double of India’s 19%.

The report attributed this rise in rankings to cultural factors. For example, a majority of people in Myanmar are practising Buddhists, 99% of whom are followers of the Theravada branch that mandates giving. Sri Lanka too has a high population of Theravada Buddhists.

Similarly, in Indonesia, which has the largest Muslim population in the world, giving is closely tied to the religious obligation of giving, zakaat. 

The improved rankings are also an outcome of countries’ economic development. “It is not a surprise that these Asian countries have been increasing [their ranking] due to their rising economic prosperity,” said Ingrid Srinath of the Centre for Social Impact and Philanthropy at Ashoka University in Sonipat, Haryana.

India was the least generous of the seven South Asian countries in the Index, behind neighbours Pakistan, Nepal and Sri Lanka. India’s economic growth in recent decades has been felt by fewer and fewer people, which may explain why its philanthropy is not increasing at a rate similar to that of its Asian counterparts, Srinath said.

Lower-income families are less likely to have donated or sponsored in the last 12 months (69%), than those with a household income of more than Rs 1.7 lakh (~$2,400) per month (82%), the report stated. “The study does not account for the degree of giving from an individual, only whether they are giving or not,” said Batra of CAF India.

“India also has more cleavages than other countries around it in terms of religion, class and caste,” said Srinath. “It is possible that these divides make people less inclined to commit to national philanthropic efforts.”

Under-reported giving

“In India, there is a strong culture of regularly helping and assisting each other,” said Batra. More Indians (64%) said they give money directly to people and families in need or to a church or religious organisation (64%) than to a non-profit or charitable organisation (58%), as per the India Giving Report, a country-specific report by the CAF Global Alliance, a network of organisations working in philanthropy and civil society.

Besides, India has over over 500 forms of traditional religious giving, such as Hindu daan and utsarg, Islamic zakaat, kums and sadaqa. “This form of giving may not show up on the Index because Indians consider this a family or a religious obligation,” said Batra. “For instance, it is commonplace for Indians to feed poor people outside places of worship, or serve a meal to pious and holy men. Those responding to the survey would not have counted this as giving, because they consider this to be their duty.”

Incidentally, upto 38% Indians said they would donate more if they knew how their money would be spent, and 32% would donate more if there was more transparency. “There is potential for organised non-profit organisations to provide more formal options of giving,” said Ben Russel of CAF.

Billionaires show little giving spirit

In 2017, the wealth held by India’s wealthiest 1% increased by Rs 20,913 billion ($303 billion). This was equivalent to the central government’s total budget that year, as per this report by Oxfam India.

The contribution of India’s richest to philanthropic activities has grown at a slower pace than the increase in their wealth, as reported by IndiaSpend earlier this year. Large contributions (more than Rs 10 crore) by ultra-high net worth individuals (individuals who have a net worth of more than Rs 25 crore) have decreased 4% since 2014.

India’s lowest WGI score in the last six years (22% in 2018) coincided with its reporting a record number of 121 billionaires–the third highest number of ultra-rich individuals in any country, behind China and the United States.

(Habershon, a graduate from the University of Manchester, is an intern with IndiaSpend.)

Courtesy: India Spend

The post ‘Indians Less Charitable Than Asian Counterparts’ appeared first on SabrangIndia.

One expects that after having waited for years for a law to be passed, the troubles caused by its absence will simply go away. That is, however, does not happen as the devil lies in the implementation. The lack of both awareness and application of the Witness Protection Scheme, 2018 is surely one of the reasons where the country over, witnesses –especially from the most marginalised sections –are still subject to threat to their lives and destruction of their property.

An English philosopher Jeremy Bentham is oft quoted on the subject, “Witnesses are the eyes and ears of justice.” In yet another shocking incident of its kind, two Dalit witnesses were brutally assaulted by the accused in a criminal case. The incident was caught on camera and it took place in Mainpuri, Uttar Pradesh. They had taken refuge in a nearby village apprehending such an attack. After suffering severe injuries and even filing a complaint, no arrests have yet been made.

Although the 2018 Witness Protection Scheme has been around for close to a year now, on the ground, India’s criminal justice system continues to reel without its implementation.
 

CJP and Witness Protection, the long battle

The Citizens for Justice and Peace (CJP) has been actively pushing for a witness protection programme/scheme since its direct involvement with legal aid for the Victim Survivors of the Gujarat 2002 pogrom. In Witness Protection A Pre-requisite to a Healthy Criminal Justice System, secretary CJP, Teesta Setalvad, argues that

“That the Indian Criminal Justice System suffers from multiple sores, affecting the deliverance of justice has been acknowledged by all. While large numbers of pending cases and delays are the simplest manifestations of this malaise, broken down, case by case, trial by trial there are four areas that need citizen’s attention and campaigns for reform. CJP has centered its initiatives in correcting these maladies. Without a sustained and robust campaign the system, with vested interests will not allow correction.

Time bound trials, Independent Investigation, Witness Protection and Independent Prosecution are these four areas.

After 67 years of a constitutionally driven Criminal Justice System, indicators about the state of the rule of law, a vital ingredient in a democracy, are frightening:

• Criminal Trials take an average of 10-15 years to reach completion
• Convictions are as low as 4 per cent, in mass crimes, and about 33 per cent in individual crimes
• In over 70 per cent of our cases witnesses turn hostile

In 95 per cent of the cases where the criminal cases fall flat because of the malady of the witnesses turning hostile, the State does not play a positive role, remains passive, and does not appeal the acquittal. The state in fact does little or nothing to reassure the witness and provide adequate security cover. Therefore a disturbing trend that has come to light is that the state has become the major defaulter in the failure of the rule of law.

Justice M Jagannadha Rao had expressed his views on the subject in an article published on Sabrangindia in 2005,

“The victim of a crime is an important player in the administration of justice both as a complainant/informant and as a witness for the prosecution/state….Without the victim’s active support, the investigation of a crime may not come to a logical end….But despite being an important component of the criminal justice system, much attention has not been paid to the rights of victims.”

He identified two important aspects in terms of witness protection; first was to ensure that the witness does not turn hostile which can be done by protecting the identity of the witness and the second is to protect the physical and mental vulnerability of the witness by providing physical protection to the witness, so he or she does not feel threatened.

A very critical case in which witness protection was identified to be a critical aspect of the administration of public justice was the one of the Gujarat 2002 related criminal trials, the Naroda Patiya massacre case. In 2011, the Special Trial Court directed the Special Investigation team (SIT) to provide more protection to 6 witnesses in the case after receiving an application from them to that regard and also because one important witness in the case, Nadeem Saiyed was killed in broad daylight by unidentified persons.

In fact, in pioneering orders from the Supreme Court in the matter (NHRC v/s State of Gujarat (2010), 15 SCC 22) and those of 2004, human rights defenders, Teesta Setalvad, over 600 witness survivors were accorded witness protection by the CISF that continues to this day.

Witnesses turn hostile in a high number of criminal cases. The experiences of the Best Bakery Case (Zahira Habibullah Shaikh v/s State of Gujarat, 2004), the Sakshi case, (Sakshi v/s Union of India, 2004)  and the Domestic Working Women’s Case (Delhi Domestic Working Women’s Forum v/s Union of India, 1995) have all pointed to the need for urgent witness protection. The experiences in all these cases show that only when non state players, citizens, back witnesses that the struggle for justice become meaningful and in some degree successful. It is only in such situations that witnesses have found the courage to speak out. CJP’s complete stance and its analysis of witness protection, before the witness protection scheme of 2018 came into being, can be read here.
 

The Supreme Court’s on Witness Protection

The need for witness protection has been highlighted in many judgments of the Supreme Court, specially cases like Sakshi v. Union of India where the court took extra ordinary measures to ensure protection of the witness:

“The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.”

The problem of witness turning turning hostile was highlighted by the Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat[1]:

“If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface.… Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer.… There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before the court and justice triumphs and that the trial is not reduced to a mockery”

The Court also highlighted the role of the state in protecting witnesses in criminal cases where parties involved are powerful in terms of money and political patronage:

“As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.”

There are several other such judgments of the Supreme Court where the State’s role in protecting its witnesses has been emphasised. It is this growing body of jurisprudence that led, ultimately to the Witness Protection Scheme 2018 coming into being. This was a case where the witnesses in the Asaram rape case had petitioned the court seeking protection. This Scheme was drafted with the inputs from 18 States/UTs and the Central Ministry of Home Affairs. Although criminal intimidation of witnesses was made a criminal offence under section 195 A of the Indian Penal Code in 2006, no formal structure had, until then, been established for protection of witnesses per se.
 

Adverse impact of lack of Witness Protection

The lack of witness protection over the years has led to many a case where the culprits have gotten away and one such controversial case was the infamous Sohrabuddin case in which over 90 witnesses had turned hostile because the accused in the case were people with strong political backgrounds and that included the current Union Home Minister, Amit Shah.

Another case which is sub judice presently, is the Pehlu Khan lynching case and in one incident in September 2019, a vehicle carrying the lawyer, Pehlu Khan’s sons and other witnesses was attacked by men in an unmarked vehicle while on their way to the Court to depose in the case. A letter was then written to DGP and IGP of Rajasthan by the People’s Union for Civil Liberties with the support of CJP requesting provision of witness protection to the witnesses in the case as there was evident apprehension of imminent threat but the same did not elicit action.

The Judgment that laid out India’s Witness Protection Scheme

The 14th Law Commission Report (1996-97) was first such report to focus on the issue of witness protection. The most instrumental piece of law in witness protection remains the case of Mahender Chawla & Ors. Vs. Union of India & Ors. [Writ Petition (Criminal) No. 156 of 2016]. The Witness Protection Scheme laid out in the said judgement, as per Article 141/142 of the Constitution of India, is binding on all Courts within the territory of India and enforceable in all States and Union Territories; this was endorsed by the government in the Rajya Sabha in July 2019.

Some key observations made by the Supreme Court in this landmark judgment are noted below:

“Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter.”

“In the words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.”

“Because of the lack of Witness Protection Programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation and/or testify in courts.”

“The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime. They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc.”

“It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State”

The Court, while quoting from a judgment in Swaran Singh v. State of Punjab[2]  emphasized upon and reiterated several hardships that witnesses have to undergo in criminal cases like how the witness is not given any respect by the court, there is no proper place assigned for them to wait until the hearing begins, during the trial the witness is subjected to prolong stretched examinations and cross examinations

The court rightly observed that criminal justice is closely associated with human rights.

“Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law.”

The Court also interpreted Article 21 of the Constitution as follows:

“If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure. “
 

The provisions of the scheme, in brief

In order to receive protection, an application in prescribed form is required to be made to the competent Authority (Standing Committee in each District chaired by District and Sessions Judge) which then calls for a Threat Analysis report from the ACP/DSP of the concerned police division. The report categorizes threat protection (as per the three categories, ‘A’, ‘B’, and ‘C’) and suggest protection measure. The application is to be disposed of within 5 days of receipt of said report and the order thus passed is to be implemented by the Witness Protection Cell which is also set up under this scheme.

The scheme specifies that the protection should be proportionate to the threat and should be granted for 3 months at a time. The measures may include, inter alia, temporary change of residence, phone number, and escort to and from court, in camera trials, concealment of identity of witness and so on.

The complete judgment can be read here.

Coming back

The Witness Protection Scheme has been around for about 11 months now but it is not clear whether litigants and lawyers are at all aware of its provisions and even if they are whether it is taken seriously enough to be used by lawyers in their respective cases. In the case that was highlighted in the beginning, of the two Dalit witnesses being assaulted by the accused in a case where they were charged under the SC/ST Act [The Scheduled Castes and The Scheduled Tribes (Prevention Of Atrocities) Act], had they been provided with protection under the scheme, they would have been probably saved from the attack.

Related:

Assault on Dalits for deposing as witnesses in court in Uttar Pradesh’s Mainpuri

Witness protection

After Nadeem’s murder, court orders more security for Naroda witnesses

Witness Protection Scheme

Pehlu Khan’s Sons, Lawyer and two Case Witnesses attacked!

Lack of Witnesses Protection Derailing Justice in Sohrabuddin case?

The post Witness Protection in India: an idea gathering dust appeared first on SabrangIndia.

The report also states that in India, per capita public spending on legal aid is only Rs. 0.75 per annum. In a country where over 1.25 billion population is eligible for free legal aid, the per capita spending of 75 paise is quite a disgrace. One may infer that economically weaker sections must have low accessibility to legal remedies due to lack of proper infrastructure for legal aid across the country.

This is the data offered by the India Justice Report, 2019 brings out other staggering data points. A first time initiative of the Tata Trusts, it lends weight to bare bone common knowledge of India’s failing criminal justice system.

By the people, for the people

Despite every government’s mandate to provide an accessible, affordable, impartial, efficient and responsive justice system to all in keeping with the constitutional promise, either of ‘equality before the law’ (Article 14) or the universal duty of all governments to ensure ‘the protection of life and personal liberty’ (Article 21), India fails in this regard. A judiciary over burdened with litigation, an unprofessional police force, also overworked and insufficient in number, poor conditions of prisons and growing number of under trial prisoners, are just the tip of the iceberg.

India has promised measurable progress in justice delivery via the universally agreed upon UN Sustainable Development Goals (SDGs). Goal 16 specifically recognizes the need to ‘provide access to justice for all and to build effective, accountable and inclusive institutions at all levels’.

However, this report highlights that each individual sub-system is starved for budgets, manpower and infrastructure; no state is fully compliant with the standards it has set for itself.

International rankings

On the 2019 Rule of Law Index, India’s overall ranking is 68 amongst 126 countries. Looking at 3 other parameters in the same index, which comprise the overall index are Order and Security; Civil Justice ad Criminal Justice. While India ranks at a poor 111 for Order and Security, it ranks comparatively better in Civil Justice at 97 and at 77 for criminal justice which is still not among the top 50%.

1. Prisons

Salient findings

• Prevalence of HIV, sexually transmitted infections, Hepatitis B and C, and tuberculosis in prison populations is two to 10 times higher than the general population.
• In 2016, 67.7% of India’s prison population were undertrial prisoners
• Kerala ranks first in overall average of all indicators of prisons in the state.
• The prison occupancy in Delhi is as high as 180%
• In Uttar Pradesh 95,366 inmates are handled by 1 correctional personnel.
• In 2016, Uttar Pradesh, with over 68,000 undertrial inmates, had the highest number and accounted for about 23 per cent of all undertrial prisoners.
• Nationally, 19 states and UTs spent between ₹20,000 to ₹35,000 per inmate annually. This is less than ₹100 per day on each prisoner.

The report speaks of the overcrowding and staff shortages can be as hard on prison staff as prisoners. Low salaries, poor training, lack of promotional opportunities, long hours, arduous workloads and high vacancies at all levels characterize prison administrations across states. High vacancy in prison staff create certain practical compulsions. Where rules provide for convicts to act as warders, convict officers or night watchmen, certain prisons come to be heavily dependent on long-term inmates, who manage various tasks, from main gate registration to working on all administrative tasks and even disciplining others. Dependence means their behaviour with other prisoners—any exploitation, violence, collusion in illegal activities or corruption—has to go unchecked.

For prisons to have a more reformative and rehabilitative character, such shortcomings in terms of budget spending and filling up of vacancies become important considerations. The important factor of increasing number of under trial prisoners is also a ghost that haunts our justice system and many a times unwarranted arrests and delay in filing of charge sheet are responsible for these figures.

2. Police

Salient findings:

• Only 6.4% of the police force have been provided in-service training. That means that over 90% deal with the public without any up-to-date training
• Tamil Nadu ranks first in all indicators of Police which means the state has a strong police force with presumably good infrastructure, resources and adequate human resources which are indicative of their quality of delivery output.
• Only 1 amongst 22 sates (for which this data was available) was able to fully utilise its police Modernisation Fund.
• The police’s capacity to deliver is determined by how well the State provisions the police with adequate budgets, personnel, and infrastructure to fulfil its varied and multifarious duties.
• Karnataka is the only state to have very nearly filled officer-level reservations in all caste categories.
• As of January 2017, the average all-India per capita spend on policing was ₹
• In relative terms, among the large and midsized states, the state that covered urban and rural populations the most evenly was Kerala.

This indicates that most police personnel lack proper training after induction into the forces, this could mean any kind of training which is important to keep the forces up to date with technology, or with the new laws that might require sensitization or soft skills in communication, and general topics pertaining to law such as public policy, new trends in criminology, among others.

The budgetary allocation of the states towards the police force is also an important factor to look at for the holistic growth of the forces, which will help in improving infrastructure and thus better and more effective policing.

3. Judiciary

Salient findings:

• There are 28 million cases pending in Indian subordinate courts out of which 24% have been pending for more than 5 years.
• Tamil Nadu ranks first (among 18 states) again in judiciary in overall average of all quantitative indicators.
• On average, no state or UT apart from Delhi spent even 1 per cent of its budget on the judiciary.
• At the subordinate court level, in twenty-one states and UTs, a case remains pending for 5 years on average or more
• Only Odisha and Tripura had a case clearance rate above 100% in both High Court and subordinate court levels.
• Not a single High Court or state’s subordinate judiciary had reached its complete complement of sanctioned judicial posts

The report deals with the requirements of a that a well-functioning judiciary is without doubt vital to the maintenance of rule of law, social cohesion, and sustainable development. The capacity of the judiciary to deliver is significantly influenced by the infrastructure, budgets and human resources available to it, and the diversity within it. Currently, judiciary budgets cover establishment costs, i.e. salary, allowances, and minimum operational costs, but do not usually stretch to capacity building or allow for innovation and experimentation. In the large and mid-sized category, Haryana spends the most (₹201) per capita, while West Bengal at the bottom spends one-fourth of that (₹52).

4. Legal aid

• There is one Legal services clinic per 42 villages.
• Arunachal Pradesh, Lakshadweep and Andaman and Nicobar Islands) do not have a single legal service clinic.
• Kerala ranks first again in Legal aid in overall average of all quantitative indicators
• None of the state in India have used their entire NALSA (National Legal Services Authority) budget allocation
• In 15 states and UTs out of 36, Lok Adalats settled more than 50% of the pre-litigation cases they took up.
• As of 2018, there were 664 district legal services authorities (DLSAs) and 2,254 sub-divisional/taluka legal services committees established across districts
• Tripura, West Bengal, Telangana, Chhattisgarh, Gujarat and Uttar Pradesh are states that are yet to establish DLSAs in all their judicial districts.
• As of January 2019, there were 63,759 panel lawyers and 69,290 paralegal volunteers (PLVs) working with LSIs across the country.
• India has about 5 legal aid lawyers per 1,00,000 population
• The per capita public spending on legal aid is only Rs. 0.75 per annum

The report says that India’s legal aid system is possibly one of the largest and most extensive in the world. ‘Legal services’ are not only restricted to representation in court cases, but also include spreading legal literacy, facilitating actualization of the entitlements of people under welfare laws and schemes, and the provision of advice and counselling. The biggest challenge in the implementation of legal aid services is the uneven organizational practices in the delivery of legal services across districts and sub-divisions. Given that nearly 1 billion Indians are eligible for free legal aid, the creation of necessary infrastructure is a fundamental pre-requisite in the fulfilment of this mandate.

Important Themes in the Report

1. Women

• There are 7% women in the entire police workforce. And at officer level, we have only 6% women.
• Only 18% of panel lawyers with Legal Services Institutions (LSIs) that provide legal aid are women
• Women account for 28% in the lower judiciary, and 12% at the High Court level.
• Bihar is the lone state that has adopted 38 per cent reservation for women, across sectors in public recruitments.
• Nationally, Chandigarh and Dadra and Nagar Haveli had the highest share of women in their overall police force at 18 per cent and 15 per cent respectively
• Over 5 years, 31 states and UTs have improved women’s representation in the force. The pace, however, is much too slow.
• Maharashtra, Uttarakhand and Kerala posted a decline in the overall percentage of women in the period from 2012-2016.
• There are just 9.6 per cent women across all levels of the prison administration.
• Thirty-six per cent of PLVs (24,999 of total 69,290 PLVs) appointed are women.

Quite naturally women have an important role to play in a justice delivery system where offences against women have consistently been on the rise. A women’s perspective and -approach in dealing with offences against women is imperative and the shortage of women personnel in the justice delivery system is alarming and needs to be mitigated at the earliest, for a balanced system.

The presence of women judges portrays the institution that upholds law and dispenses justice as an equal opportunity space driven by fair, meritocratic, and non-discriminatory practices and norms.[1] The presence of a large number of women panel lawyers and PLVs is essential for reaching out to a constituency that is often under-served and faces socio-cultural barriers when they try to come forward for legal assistance

2. Personnel

Police

• There are 151 police personnel per one lakh people
• Sanctioned strength: 193 per one lakh people
• In India police cover is 1 for every 663 individuals, going as high as over 1,600 in some cases.

This raises some serious questions on the efficacy of the police workforce and and also on public safety. How can one policeman protect 663 individuals?

Prisons

• Prisons are understaffed by at least 33% with the highest vacancies found at the officer and correctional staff levels
• Nationally, on an average, vacancies ranged from 33% to 38.5%.
• The Model Prison Manual, 2016, has suggested one correctional officer for every 200 prisoners, and one psychologist for every 500
• As of 2016, this ratio stands at one welfare officer per 2,033 prisoners, and 21,650 prisoners for one psychologist
• 12 states and UTs have a shortfall of 50% or more medical officers.
• There are only 621 correctional staff across India’s 1,412 prisons.

The report says that the All India Committee on Jail Reforms (1980– 1983), popularly known as the Justice Mulla Committee, had made several recommendations to develop an All India Prison Service as a professional career service with appropriate job requirements, sound training and proper promotional avenues. Unfortunately, even nearly forty years on, these recommendations have not been systematically implemented. After the Mulla Committee Report, there had been no study on prisons and prison reforms, until the Supreme Court set up the Justice Amitava Roy Committee in 2018.

3. Judiciary

• In 27 states and UTs including, Haryana, Maharashtra and Kerala, there is just one subordinate court judge for over 50,000 people.
• Each of the 18 Large and Mid-sized states had High Court judge vacancy of above 25%
• At the subordinate Court level, six of the 18 Large and Mid-sized states had over 25% vacancy of judges
• Only Sikkim has a High Court judge vacancy of less than 20%.

The shortages in personnel or long-standing vacancies lead to overworked staff burdened with increasing workload. It is known that our justice delivery system is over burdened due to increasing population and the justice delivery system needs a workforce commensurate with the increasing population. India is a demographically enriched country and yet we are unable to harness this to mitigate the personnel shortfall across sectors. The report says that there is a structural challenge when it comes to filling the vacancies of judges at high court and subordinate level, the impending lack of infrastructure. However, at the current strength of judges, the infrastructure is even 11.3% surplus, if the positions are to be filled to a 100%, there will be a shortfall of 4,071 court halls.

4. Diversity

• There are 19 States and UTs having more than 15% reservation for Schedules Castes (SCs) in officer; their target has not been met. The average gap being 35%
• There are 14 states and UTs having more than 15% reservation for Scheduled Tribes (STs) in officer cadre; their target has not been met. The average gap being 44%
• There are 22 states and UTs having more than 15% reservation for Other Backward Classes (OBCs) in officer cadre; their target has not been met. The average gap being 55%
• Tamil Nadu ranks first in the Diversity index amongst all 4 pillars of justice, which is based on 10 indicators such as ratio of actual to reserved positions for SCs, STs, and OBCs and percentage of women in all four services; Maharashtra ranks 4^th.
• Only 2 out of 31 states (for which this data was available) met at least 80% of their declared quotas of reservations
• Nine states in India do not reserve any kind of quota.

The report says that diversity within police departments is both an organizational value to be attained and a practical priority when policing a society as varied as India with its state level specificities. The report says that diversity in public institutions affirms the democratic idea of inclusiveness.

Effects on economy

Beyond the moral and normative frame, an unreformed justice system is hampering long-term economic growth. The inability of the system to deliver justice and maintain the rule of law has led to an uptick in violence, which according to the Institute for Economics and Peace, has cost India an equivalent of 9 per cent of its GDP[2]

Development and economic growth are impacted by the degree to which the rule of law is upheld. A closer inspection shows India’s performance is particularly pulled down by delays in registration of property (69 days) and the enforcement of contracts (1,445 days)[3].

 Methodology

The India Justice Report is a quantitative analysis of the capacity of the four pillars of justice, namely, judiciary, police, prisons, and legal aid. They have been studied using six filters – budgets, human resources, work load, diversity, infrastructure and trends (in the last five years). The data sets gathered and presented in this report are vast and quite comprehensive. Here’s a look at the salient features of the report, examining each pillar of justice and the themes therein.

The report points out the absence of qualitative measurement in its methodology and explains that the focus is on qualitative factors like in manpower, infrastructure, the workload burden and trend indicators which are preconditions necessary for qualitative outcomes.

The rankings have been done fairly by bifurcating large and mid-size states and small states on basis of population. Thus, there are 18 Large and mid-size states with population above 10 million and 7 small states with population below 10 million.

The complete report can be read here.

In conclusion

This report, as previous studies have done, makes it amply clear that India’s justice delivery system is plagued with substantive and structural issues which can be resolved with proper and effective budgetary allocation, a need basis assignment of the allocated budget, having well trained and adequate human resources to fulfil the purpose of the institution, have adequate representation for women and other reserved classes so that the justice delivery system can be said to appreciate equal interests of all in the society, build a robust infrastructure to facilitate smooth functioning of all the cogs in the system.  Crucial to all of this however is political will which appears lacking both in the ruling party and the opposition.

While this is not an exhaustive list of measures, one can always innovate and find out newer, better and more efficient ways to make a system work better and to make it more productive and for that it is important that research and development is encouraged in each of the four pillars of our justice delivery system, to recommend time and again innovative ways to improve the workings in the system, instead of waiting for judicial or statutory committees to be formed.

The Executive and the Judiciary have a behemoth task at hand if the entire justice delivery system to work efficiently, all four pillars ought to work in congruence as the success of one depends on the performance on the other and the sooner this is regarded importance, the sooner we will be able to visualize a fair and efficient justice delivery system in India.

[1] Rosemary Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-making’, Current Legal Problems, Vol. 68, (2015), pp. 119–141.

[2] ‘The Economic Value of Peace 2018: Measuring the Global Economic Impact of Violence and Conflict’, Institute for Economics and Peace, Sydney: October 2018. Available at: http://visionofhumanity.org/reports (last accessed on 25 June 2019).

[3] Doing Business, 2019. Available online at: https://www.doingbusiness.org/content/dam/doingBusiness/media/Annual-Reports/English/DB2019-report_web-version.pdf

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Judgment of the Special Bench of the Supreme Court of India in the Babri Masjid-Ramjanmabhoomi title suit (hereinafter, ‘Title Suit’) is expected before the retirement of the Chief Justice of India Ranjan Gogoi on November 18. Justice Gogoi was one of the 5 judges hearing the matter. The Prime Minster of India, Narendra Modi has appealed for peace whatever may be the outcome of the case. It is heartening too, that Hindu supremacist organization the RSS has also appealed for maintaining peace and accepting the judgment with ‘open mind’. Jamiat-e-Ulema-i-Hind, All India Muslim Personal Law Board and Muslim litigants have always said that they would accept the judgement of the Supreme Court in the Title Suit after having done their best to save the Babri Masjid. They will face God on the Day of Judgment (qayamat) with a clear conscience. Other Muslim organizations have also likewise appealed for peace and acceptance of the judgment whatever the verdict may be. With these appeals, we hope that the people of India will maintain peace irrespective of in whose favour the judgment is.

In this short piece, we try to trace the history of the litigation. The story of Babri-Masjid-Ramjanmabhoomi conflict is story of demand of Nirmohi Akhara permission to construct a permanent structure over Ram Chabutra in the outer courtyard of the Babri Masjid premises to the claim of entire 2.77 acre of land on which Babri Masjid once stood with Ramjanmabhoomi Nyas’s filing of the suit in 1989 on one hand and democratic institution of state caving in and crumbling under the pressure of mobilization by the Hindu supremacist organizations watching the rule of law and the might of the Constitution crumble under the weight of the mobilization by majoritarian politics. The executive and the judiciary twiddled their thumbs, passing on the buck to each other to save the Babri Masjid from demolition. The Allahabad High Court then legitimised faith of the majority community and legitimized the demolition of the Babri Masjid. The High court delivered its judgement dividing the land into three parts with Hindu parties getting two-thirds and Muslim litigants.

History of the litigation

In the year 1855, there were communal riots between the Hindus and the Muslims. Some 500 followers were mobilized by orthodox Sunni cleric Shah Ghulam Hussain to claim Hanumangarhi Temple in Ayodhya, which according to him was constructed after the demolition of a mosque. The Hanumangarhi temple is about a kilometre far away from the Babri Masjid. The attack was repelled by 8,000 Bairagis who had assembled to protect the Hanumangarhi Temple. The Bairagis chased the Muslim followers of Ghulam Hussain who took shelter in the Babri Masjid. Several of the Muslims who died during the riots are buried near the Mosque. Nawab of Awadh, Wajid Ali Shah, too ruled in favour of the Temple. The Bairagis of the Nirmohi Akhara laid no claim to the Babri Masjid premises.

It is disputed as to when the Ram Chabutra was constructed. The Muslim litigants in the Title Suit maintained that the Chabutra was constructed after 1855 and surreptitiously, while the Hindu litigants maintain that the Chabutra always existed and Hindus worshiped the idols of Lord Ram in the Chabutra admeasuring 17’ X 21’. After the 1855 riots, iron grills divided the inner courtyard and the outer courtyard adjacent to the iron railings. The Chabutra was in the outer courtyard. In 1856, Awadh was annexed by the British colonisers and in May 1857, Hindus and Muslims together fought the first war of independence against the British rule. The movement was crushed brutally.

Nirmohi Akhara, worshippers of Lord Ram, which moved to Ayodhya sometime between the year 1734 and 1800 filed a suit before the sub-Judge of Faizabad on January 29, 1885 through Mahant Raghubar Das. The suit was only for awarding permission for constructing of temple over the Chabutra which, the suit stated was Janam Asthan, where Charan Punya (embossed on the Chabutra) were worshiped. The plaintiff in the suit claimed possession of the Chabutra, admeasuring 17 feet X 21feet, and permission to construct a temple over it to protect the worshipers from the vagaries of the weather. It is worth noting that there is no claim in the plaint that the construction of the Babri Masjid is after demolition of any temple; that the birth place of Lord Ram is under the mosque or that Hindus worship the entire land as Janam Asthan; or that they were entitled to the entire land premises on which Babri Masjid stood. Pandit Hari Kishan, Sub Judge of Faizabad dismissed the suit by his judgment dated December 24, 1885. The permission was denied as there was likelihood of communal riot in future.

An Appeal was preferred before the District Judge of Faizabad Col. FEA Chamier who dismissed the Appeal by his judgment dated 18/3/86 as “there is no ‘injuria’, nothing which would give a right of action to the plaintiff.” The District Judge, however struck down the observation of the Sub Judge stating that the plaintiff on account of their possession is owners of the land on which the Chabutra was constructed. Second Appeal was preferred before the Officiating Judicial Commissioner, Oudh, and W. Young too dismissed the Appeal vide his judgment dated 1/11/1886. The observations of Young are worth producing here.

“The Hindus seem to have got very limited rights of access to certain spots within the precincts adjoining the mosque and they have for a series of years been persistently trying to increase those rights and to erect buildings on two spots in the enclosure: (1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi… There is nothing whatever on the record to show that Plaintiff is in any sense the proprietor of the land in question”.

This observation of Young proved so true. From a claim over Ram Chabutra as Janam Asthan, the Ramjanmabhumi Nyas filed a suit in 1989 claiming that the entire 2.77 acres of land on which the Babri Masjid was constructed, the inner court yard and the outer courtyard belong to the deity, are sacred to the Hindus and the land would always belong to the deity even if intermittently the possession passed on to any other party, no matter for howsoever long. They borrowed the position Muslim litigants who were arguing – “once a Janambhumi, always a Janambhumi”. Muslim litigants were arguing that a Mosque belongs to Allah, to Him alone, and cannot be alienated or the user or ownership changed. Ramjanmabhumi Nyas argued on similar lines. The Allahabad High Court accepted this as faith of Hindus and the judgment is heavily relies on acceptance of this as faith of all Hindus.

After Independence

Besides a communal riot in 1934, Ayodhya there were no significant developments on the issue of Babri Masjid.

On the intervening night of December 22 and the morning of December 23, 1949, Lord Ram’s idols were taken from the Ram Chabutra in the ourter courtyard and installed the deity under the central dome of Babri Masjid after breaking the locks. A police picket of 15 persons was on duty but did not apparently act. Several instructions were given by the Central Govt. to remove the idols, but they were not on the ground that it would ignite a law and order problem. The installation was not all of a sudden. It was being planned for a while.

On January 5, the Dist. Magistrate locked up the disputed structure and a scheme was framed for the maintenance of the premises. The order of the civil judge restrained by means of temporary injunction from removing the idols in question from the site in dispute and from interfering with ‘puja’ etc. as at present carried on. However namaz was stopped. In 1955, Allahabad High Court upheld the order of the DM passed on January 19, 1950. In 1959, the Nirmohi Akhara through Gopal Visharad filed a title suit claiming the inner sanctum of the Babri Masjid. And Sunni Waqf Board filed a suit in 1961 claiming ownership right over the inner as well as outer courtyard of the Babri Masjid.

On February 1, 1986, the position on ground was again changed. At 4.40 pm the District Court in Faizabad passed an order on an appeal of one Umesh Chandra Pandey, who was not even a party in any title suit and without hearing any party to the title suit to the effect that the lock on the Ramjanmabhumi temple should be opened and unrestricted and free offering of prayers be allowed. The appeal was filed on January 31, 1986 after the Musnsif’s Court of Hari Shanker Dubey rejected Pandey’s application dated January 25, 1986 for opening the lock on the ground that suits were pending in the Allahabad High Court and no such order could be passed. Next day i.e. on 1^st February the appeal was heard without notice to any party in the suit and order passed by Dist. Judge and the same day at 5.19 pm the locks were broken and prayers allowed. Mohammed Hashim who was plaintiff in the title suit filed in 1961 to be impleaded as a party to the Application.

In 1989 Ramjanmabhumi Nyas filed suit as next friend of Ramlalla Virajman claiming that the entire land belonged to the Deity who cannot be dispossessed of the title to the land. Limitation is not applicable to the Deity and the Deity can sue through a next friend. Then on 6^th December 1992, the Babri Masjid was demolished and this time not surreptitiously in the wee hours of morning but after full preparation, planning and mobilization which neither the highest court of the land nor the Central Govt. prevented the demolition which it could have if it had sufficient will.

While twenty-seven years ago, Babri Masjid came crumbling down on  December 6, 1992 amidst massive mobilization by the Sangh Parivar – organizations affiliated to right wing Hindu supremacist RSS. Liberhan Commission which was appointed to look into the circumstances and events that led to the demolition of Babri Masjid found that demolition of the Mosque was meticulously a planned event. It further observed that “Kalyan Singh’s (the then BJP Chief Minister of UP) government was the essential component needed by the Sangh Parivar for its purposes. Kalyan Singh lived up to the expectations of the Parivar”. Regarding the demolition, the Commission stated, “The preparation was accomplished with phenomenal secrecy, was technically flawless with consistency and assured results…. The theme was power. It attracted clusters of young men to support the hidden agenda. Leaders know how passions are aroused and how to prevent the same; they however always see what would be beneficial to them rather than what would be good for the nation. This is what happened in Ayodhya.” The crowd mobilized by the Sangh Parivar cheered the demolition. Among those who cheered the demolition were BJP leaders Murli Manohar Joshi, Uma Bharti, L K Advani and others. What came down on December 6, 1992 was not only the structure called Babri masjid, but also the Constitution of India, democratic institutions that were mandated to protect the rights of the citizens of India in accordance with the Constitution, including the judiciary and the executive. When there were clear signs of planning and preparations to demolish the mosque on 6^th December all were twiddling their thumbs, dilly dallying in taking action, passing the buck on other agencies to take preventive actions to stop the demolition and even hoodwinking each other and hoping that the mosque will not be demolished after all.

Tremendous pressure was mounted on the Supreme Court to expedite the hearing of the Appeal against the Judgment of the Allahabad High Court in the Title Suit. Senior RSS leader Indresh Kumar said on November 28.^, 2018 that the country would not be handicapped for 2-3 Judges to throttle its beliefs and in construction of Ram Temple. Ram Madhav, General Secretary of the BJP warned that if hearing of the Appeal by the Supreme Court is not fast tracked. Other options would be explored.

Arguments of the parties

The Arguments were opened by the Hindu litigants. Nirmohi Akhara sought the possession of the entire disputed plot and a declaration that it’s right to continue to worship at the site as a distinct religious denomination. It argued that Nirmohis were worshipers of Lord Ram. They were dispossessed in 1950 when the DM took over the site. Ramlalla Virajman argued that Ramlalla in Indian jurisprudence has a status of juristic person who can file cases to protect its rights. It was further argued that entire Hindu community considered Ayodhya as birth place of Ramlalla from times immemorial and have been continuously worshipping at the disputed site, whereas Muslims have abandoned the site since 1934, and in any case since December 23, 1949. The character of disputed structure – mosque or temple – can be determined only by who worshiped there.

If we revisit the judgements in 1885 and 1886 in the case, which was filed for construction of a temple on the Ram Chabutra in the outer courtyard of the Babri Masjid and not for claiming the entire site, the claims of Hindu litigants were rejected mainly on two grounds 1) limitation – the claim was too delayed as Babri Masjid has been in existence since 1528; and 2) Possession was the only claim in their favour without any records of title, grant etc. The third issue that went against them was possibility of violent conflicts in future between the worshipers belonging to the two communities. To overcome these handicaps, the Hindu litigants adopted two strategies – 1) disrupt the normalcy and use the threat of breakdown of law and order for augmenting their claims; and 2) Plead faith as a source of their right from times immemorial, not provisions of law, documents or evidence. Thus far their strategy has worked and even the Allahabad High Court’s judgement heavily relies on faith to grant reliefs to Hindu litigants. The threat of law and order is always there.

The outcome

The mobilization for demolition of the Masjid was not for religious attainments. While its immediate objective was to dislodge Congress and install BJP in power, its long term objective was to undermine the Constitution, its core values of liberty, equality and fraternity, rule of law and establish hegemony of Hindu supremacists. The Hindu supremacists wanted construction of Ramjanmabhoomi temple (and by extrapolation, entire polity) to be based not on legality but on the (unsubstantiated) Hindu faith that Lord Ram was born precisely on the spot under the central dome of Babri Masjid. They wanted to create might of Hindu nationalists and governance to be based on might of the mobilized. Every trained blow on the Masjid that day was a blow on the Constitution and rule of law; blow to rule of sanity; blow to the idea that governance should ensure development of the most oppressed and marginalized – antyoday.

Congress failed to protect the Masjid in 1992 and utterly failed to stop the country from sliding into the hands of Hindu supremacists. The demolition of the Masjid was followed by communal violence in several cities and towns, particularly in the western and northern India, including Mumbai, Ahmedabad and Surat. About 900 people were killed in the communal violence in Mumbai, 246 people were killed in Gujarat, 95 were killed in Bhopal communal violence and 25 in other parts of Madhya Pradesh, 200 were killed in UP, 100 in Assam, 60 in Karnataka, 32 in West Bengal, 48 in Rajasthan, 24 in Bihar, 12 in Kerala and Andhra Pradesh each and 2 were killed in Tamil Nadu.

Violence was the weapon deployed by the Hindu supremacists to extend their influence politically and strengthen their party. Demolishing Babri Masjid and advocating violence they demonstrated that rule of law meant nothing to them and their faith was above law; that law could not protect all citizens and that sections they chose to stigmatize could be practically relegated to second class citizenship.

We sincerely hope that the Judgment of the Supreme Court restores confidence of all citizens in rule of law and the Constitution.

(The author is Director, Centre for Study of Society and Secularism, Mumbai)

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Gujarat has been trying to get an anti-terror law passed since 2003, when Narendra Modi was the Chief Minister of Gujarat. Near 16 years later, the Gujarat Control of Terrorism and Organised Crime Bill (GCTOC) has received the President’s assent. When it was first introduced in 2003, the law was named Gujarat Control of Organised Crime Bill.

Why was President assent needed?

The assent of the President is needed under Article 254 of the Constitution when the law being passed is concerned with a matter in the Concurrent list of the Constitution and is repugnant to an existing central law. While the constitution does not list “terrorism” per se in any of its lists under Schedule Seven, it includes defence of India as a central subject and public order as a State subject and criminal law and procedure is included in the concurrent list which means both the Centre and the State can formulate laws on this subject but the power of a State to do so is conditional, it has to receive the President’s assent if the law thus passed has an over riding effect on an existing central law.

The objections of former Presidents

The bill was first returned by the Late A.P.J. Abdul Kalam in 2004 who had raised objections to the provisions pertaining to interception of communication. Again in 2008, then President, Mrs. Pratibha Patil had returned it raising concerns over provision which made statement to a police officer to be admissible as evidence in court. Thereafter, some changes were made to the bill and it was renamed to what it stands today, the Gujarat Control of Terrorism and Organised Crime Bill (GCTOC) and again it was returned by then President Pranab Mukherjee seeking clarifications on what was the fourth draft of the bill.

The Bill and its problematic provisions

The truth is GCTOC is not the only law that has such draconian and inhumane provisions. The provisions of GCTOC resonate to a great extent with MCOCA (Maharashtra Control of Organised Crime Act) and the Karnataka Control of Organised Crime Act. Both of these Acts were given Presidential assent when the BJP led National Democratic Alliance I was in power.The constitutional validity of MCOCA was also upheld by the Supreme Court in Zameer Ahmed Latifur Rehman vs State of Maharashtra since the law dealt mainly with organised crime which pertains to criminal law but also of public order which is a State subject under the Seventh Schedule. The MCOCA has similar draconian provisions but somehow it stood the test of constitutional validity even in the apex court.

The bill defines a terrorist act as an act committed with the intention to disturb law and order or threaten the unity, integrity, and security of the state. The Bill also defines organized crime as criminal activities run for a substantial profit and includes economic offences such ponzi schemes, organized betting as also offences like extortion, land grabbing, contract killings, cyber crime and human trafficking.

The bill gives investigating agencies the power to intercept telephone conversations after getting approval from an authority equivalent to additional chief secretary which can be submitted as legitimate evidence. The law also provides legal immunity to the police officers acting as per its provisions.

Even confessions made before a police officer of the rank of Superintendent of Police and above are made admissible in court, which is contradictory to the provisions of the Indian Evidence Act.  It also provides the investigating agency 180 days’ time to file a chargesheet instead of the 90 days provided for serious offences in the Code of Criminal Procedure (CrPC).

The law also puts onus of proving innocence on the accused, in contradiction to the legal principle of presumption of innocence of the accused.

For some odd reason the copy of the entire bill is not available freely on the internet, even on the official government sites.

Comparison to POTA

The Prevention of Terrorism Act, 2002 (POTA) which was later repealed by passing Prevention of Terrorism (Repeal) Act, 2004. The Act, which had similar provisions as GCTOC has, was repealed after it was believed that the law was being misused to target political dissenters and also minorities. Reportedly, in Gujarat all except one detainees under POTA belonged to Muslim minority and in Tamil Nadu and Uttar Pradesh as well POTA was being abused by police authorities without accountability. Protesters of economic policies, like GATT etc were also booked under this draconian law.

When POTA was repealed, its terrorism related provisions were incorporated in the Unlawful Activities Prevention Act (UAPA). Even this legislative act came in for sharp criticism, given that it was UPA I that incorporated these into the newly amended law. However, even then some of the most inhumane provisions, such as the onus on the accused to prove his innocence, compulsory denial of bail to accused and admission as evidence in the court of law the confession made by the accused before the police officer. Ironically, these same provisions find their place in the GCTOC which has been given assent to by the President.

Politics behind anti-terror laws

The Union Home Minister, Amit Shah claimed that POTA was repealed by UPA I (United Progressive Alliance) government for vote bank politics. This claim does not hold true as, just before POTA was repealed, there was so much clamour about the misuse of POTA by states using it to target communities and settle political scores that the Bharatiya Janata Party-led government at the term set up a review committee to ensure that the law was not being abused.

Another point worth emphasizing is that while one government deemed certain provisions of a law to be inhuman and subject to probable misuse, the same provisions are being upheld by another government time and again under the guise of securing national interest and safeguarding its integrity.  It was as if the GCTOC was just awaiting a President appointed by a BJP-majority government so that it could finally get assent. Former Presidents have refused to let such a despotic bill become law.

What remains to be seen is that, if this law is challenged in the courts, whether the apex court will uphold the Constitution in accordance with its precedential interpretations or lay out a majoritarian interpretation in order to subsume and validate the new law.

Related:

State’s use of Anti-terror Laws against Dissenters also a form of Terrorism

J & K’s PSA Law: How Draconian is Draconian?

NarendraModi’s Gujarat Anti-Terror Bill Finally Gets Presidential Nod

The Daily Fix: Amit Shah is wrong – even Advani admitted that POTA was misused

POTA was repealed for vote bank politics: Amit Shah

Gujarat law against terror — its long journey, and similar laws in other states

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