News channels that run on our television screens 24 hours a day have been branded as “mainstream news media” though commercial media that no longer plays a part in actual dissemination of news may be a more apt definition. This media has, of late, often being showcased for a deliberate suppression of news while selectively creating studio discussions on selective subjects that fuel a divisive, one-sided majoritarian agenda that currently suits the ideology of the party in power.

The technique used is hysterical and repetitive, with one-sided WhatsApp forwards based on no truths becoming the focus and subject for discussion! The one channel that has been prominently badgering its viewers with this persistently unethical, anti-constitutional and stigmatising anti-minority, narrative is Times Now Navbharat, affiliated to the all-powerful media house, the Times of India group.

Citizens for Justice and Peace has been consistently monitoring news channels and their tiresome trope and tools used to spread and further demonise the religious minorities. In this process, CJP has filed several complaints with the News Broadcasting & Digital Standards Authority (NBDSA) and received favourable orders as well. In our analysis we have found that while the narrative of news channels is similar to each other, it is the frequency that now plays a part. In this year, 2023, alone, CJP has filed five complaints against the channel and out of these five shows, CJP has complained against, three shows used the “jihad” trope. The channel is often seen using emotionally charged language, misinformation, and biased narratives to sway people’s beliefs and attitudes.

Even with noticeable trend, the past fortnight was a shocker. Not one day passes without this channel pushing its vicious, dehumanizing agenda. With CJP’s sizeable complaint bank behind us, we now bring you an analytical look at just one week of Times Navbharat content and leave our readers to judge what the motivations and ethics underlying generation of such content may be.

Repetition as Propaganda:

Picking the same issue over and over

After the violence in Kolhapur in the past few days, news channels kept running the debate over ‘Aurangzeb’! The main focus was on ‘Aurangzeb’ as villain in 2023! One of the last Mughal emperors that has had a particularly significant impact on the Deccan plateau, the historical narrative of his betrayal of and subsequent encounter (through Afzal Khan) with Shivaji is part of folk and political lore, given that Shivaji is a much loved figure, albit one who’s image has been also distorted for political gain. Anyway back to the channel, Times Navbharat. The channel, day on day, has been itself in the act of pushing the narrative that even harking (or hailing) back to Aurangzeb –who is and was un undeniable part of India’s past – is both sacrilegious and seditious, an outrageous (even unlawful) notion pushed by India’s present rulers, in Delhi and Maharashtra (belonging as they do to the majoritarian Bharatiya Janata Party (BJP). The channel appears to be on its own mission to convince (or brainwash?) its viewers into terming Aurangzeb referencing today as not only treason but acts that retaliatory targeted violence.

On this one incident alone, the channel ran provocative taglines in all their shows. These include:

“Aurangzeb par fasaad , kaun Pakistan ki aulaad” (riots over Aurangzeb, who is the son of Pakistan?)

“Shivaji ke Vanshaj vs. Aurangzeb ki aulaadein?” (Descendants of Shivaji vs. Sons of Aurangzeb?)

“Hinduon ka atyachari ki kis ke liye Krantikari?” (The oppressor of Hindus, for whom, is he a revolutionary?)

Such propaganda often relies on oversimplification and selective generalisation to stereotype religious minorities. It portrays them as threats to national integration, social order, national security, or cultural values, emphasizing their “differences” from the majority population. By portraying them as “the other,” propaganda fosters an “us vs. them” mentality, making it easier to sow seeds of hatred and discrimination.

Religious conversions

Forced conversions are another trope the channel consistently harps upon. The false narrative is the claim that religious conversions in India are primarily forced or coerced. Through its shows the channel suggests that religious minorities, particularly Muslims and Christians, engage in unethical practices to convert individuals from Hinduism or other faiths.  This coverage flies in the face of actual circumstance and data from the ground, as questions and answers in Parliament, studies conducted on the issue from government gazettes (New Indian Express) all show that in fact maximum converts were towards Hinduism! Pertinently also the Indian Constitution accords every citizen the right to freely choose and propagate any faith.[1]

By depicting each alleged cases of forceful conversion, the channel exaggerates these incidents as a phenomenon and suggests that large-scale conversions are eroding the majority religion and threatening the nation’s cultural fabric.

The all-time favourite “Love Jihad”

Despite there being no empirical evidence to prove the existence of this conspiracy theory of “love jihad” and many alternate news portals busting this falsehood, the news channel (any many others of its kind) have continued running with it. ‘Love Jihad’ is a conspiracy theory of the right-wing, which claims that Muslim men feign love to non-Muslim, especially Hindu women to induce them to convert to Islam with an intention to increase their population. However, what is pertinent is that no official agency has come forward with a definition or any data to substantiate the claims.

The coinage of the term gained national prominence in 2009 and its origins can be traced back to Kerala and the coastal belt of Karnataka. On June 25, 2014, then Kerala Chief Minister Oommen Chandy informed the state legislature that 2,667 young women had converted to Islam in the state since 2006. However, he stated that there was no evidence for any of them being forced conversions, and that fears of ‘love jihad’ were “baseless.”

Here are some instances of shows the channel ran through last one week using “love jihad” as the main angle.

In this news report, the channel made sure to highlight the religious identity of the victim, a Hindu. It becomes amply clear when the channel does this, that the accused has to be a Muslim.

On the other hand, when an incident of murder came to light from Mumbai where in a live relationship, the man killed his partner in a rather gruesome manner (akin to the Shraddha Walkar case), the religion of neither the victim nor the accused was mentioned, because both were Hindus.

They even invented another term – “Gaming Jihad” alleging that there is game created by a Mulsim whereby Hindu boys are coaxed into converting to Islam. The news report ran an “investigation” on how this games allured Hindu boys into religious conversion to Islam.

Other divisive tools

When the trope of all kinds of “jihad” and religious conversion are used, they also resort to other tools. Like, establishing hegemony of Hindus by claiming Hindus saved Muslims:

Portraying certain prominent individuals/political figures as enemies of Hindus by vitute of them speaking in favour of Muslims:

Creating unsubstantiated trivial controversy over Muslim actors entering temples and seeking blessing of Hindus gods is also another of their favourites.

Questioning the sensitivity of certain topics and defending propaganda: When the teaser of the movie “72 hoorain” came out, the channel aired a debate on why are Muslims offended over it.

This week long overview establishes a clear political agenda and motive.

The intention of the channel is clear: to create a distorted reality that fosters division, fear, and animosity towardsthe Muslim community. False narratives contribute to the marginalization and stigmatization of religious minority communities, fostering discrimination, and hostility. This has already led to social exclusion, violence, and restrictions on the religious freedom. The spread of false narratives further deepens existing communal tensions and perpetuates an “us vs. them” mentality as well.

Where this leaves the quality and standards of fair and equitable practices in broadcasting is a question that has more than serious implications for India and Indian democracy.

[1] What do the figures tell us? CJP Legal Resource: Hinduism saw the largest increase in new converts, according to statistics collected by The New Indian Express collated from government gazettes that contain official figures for the year 2020. Hinduism, says this analysis, was “adopted” by 47% of those who converted to a different religion in Kerala during the referred year. 241 of the 506 people who reported their change of religion with the government were Christians or Muslims who converted to Hinduism. Islam attracted 144 converts overall, compared to 119 converts to Christianity.[2] The majority of Dalit Christians, or Christian Cheramars, Christian Sambavas, and Christian Pulayas, made up 72% of the new Hindu converts. It was clear that the absence of quota and reservation advantages had led to the re-admittance of Hinduism by many Dalit Christians. Christianity lost 242 believers to the other two religions and attracted only 119 persons. Islam gained 144 new believers and lost 40 during the period. Buddhism received two new believers who switched from Hinduism.As many as 77% of the new converts to Islam were Hindus and 63% women. It attracted the highest number of persons from Ezhava, Thiyya and Nair communities. 25 persons, including 13 females, switched from the Hindu Ezhava caste, to Islam. Data reveals that 17 Thiyya community members including 11 females converted to Islam. 17 persons including 12 females were from the Nair community. Of the 33 persons who crossed over to Islam from Christianity, 9 were Syrian Catholics, who included two women.

Related:

CJP SENDS COMPLAINS TO TIMESNOW NAVBHARAT AGAINST THEIR PROBLEMATIC DEBATE SEGMENT, PARTICIPANTS INDULGED IN COMMUNAL DIATRIBE

TIMES NOW NAVBHARAT USES ‘MAZAAR JIHAD’ IN A SHOW, CJP SENDS COMPLAINT

NBDSA: CJP ESCALATES COMPLAINT AGAINST TIMES NOW NAVBHARAT’S ‘ZAMEEN JIHAD’ SHOW

ANOTHER COMPLAINT TO TIMES NOW ON POLARISED DEBATE OVER MADRASSA SURVEY IN UP

The post Times Now Navbharat: Where hate sells like hot cakes daily appeared first on SabrangIndia.

It is pertinent to note that linking the registry of birth and death to Aadhar card has also been proposed by the government in the past. IN November 2021, the Ministry of Home Affairs floated proposed amendments to the Registration of Births and Deaths Act, 1969 which entailed a national database of records of births and deaths and linking Aadhar information to the same. The MHA had also expressed its intent to use this data to update the much opposed National Population Register (NPR). The Ministry had stated that the data will be used for updating NPR, Electoral Registers, Aadhar Database, Ration card database, Passport Database as well as the driving license database.

The Ministry has started again from where it left things in November 2021. At the inaugural event, Shah said that registration of births and deaths is important for updating citizens’ register, electoral rolls and list of people who avail beneficiary schemes, reported The Hindu.

What about the Census?

The description sounds quite similar to what a Census is supposed to be. 2021 was the year when our Census was due. However, the same could not be held on time due to the COVID-19 pandemic. However, with the pandemic long behind us, there is absolute silence from the government on when the Census will be conducted. The general elections are due for 2024 and the Union government has shown no political intent to conduct Census anytime before that.

Under the Census Act, there is no mandate or obligation upon the Union government to conduct Census every 10 years. The section 3 of the Act states:

3. Central Government to take census.—The Central Government may, by notification in the Official Gazette, declare its intention of taking a census in the whole or any part of the territories to which this Act extends, whenever it may consider it necessary or desirable to do so, and there upon the census shall be taken.

Shah did say during the event that previous censuses were not accurate and the government will now conduct the Census electronically so that the data can be audited and verified, reported The Hindu.

What the government plans to do

Shah has said that the Registrar General of India will be the authority for birth and death registration. The RGI is the nodal agency for Census and also implements Registration of Births and Deaths Act. Shah said that the RGI “will ensure that the Election Commission is informed by the related software, immediately after the death of a voter, and the due process to strike off his or her name can be adopted. The opposite can be done to include a new voter in the voter list as soon as he or she becomes 18 years old.”

A source from the government speaking to Hindustan Times disclosed, “The proposed amendments say that the birth and death registration data will be necessary for admission into educational institutions, issuance of driving license, preparation of voter list, registration of marriage, appointment in government jobs and for passports etc.”

Why is centralization of this data a problem?

The Centre has clearly stated that this data will be used for updating NPR, Electoral Registers, Aadhar Database, Ration card database, Passport Database as well as the driving license database. This means, the Centre will be able to track births, deaths,

The Centre will have a record of all the registered deaths and will use the same to update NPR which will in turn be used to make the nation wide NRC. However, the question arises, what about those births that are not registered?

Citizen for Justice and Peace’s experience working on the citizenship issue in Assam has led to the realization that out of people excluded from NRC, vast numbers were children because the parents could not provide their birth certificates. Children below 18 do not have voter’s ID cards and if they have not given class 10 or 12 board examination their only proof of birth in the country is the birth certificate and if the infrastructure for registering births is not robust in rural or remote areas, it is likely that a large chunk of population does not exist on paper for the government and there is no way for them to prove that they were indeed born in this country. Hence, if this data is centralized and used to update NPR and eventually the NRC, this population has no strong proof of citizenship and stands at the risk of becoming non-citizens or aliens in the country they were born in. This, in itself, is a potential grave humanitarian crisis.

Based on information received from 32 States/UTs, the share of institutional births to total registered births is 81.2 percent. This means that despite institutional births, there are loopholes whereby registration of births has been missed out.

Related:

Centralising record of deaths and births: Centre’s play at a future NRC?

Census is not a priority for the Union government

Identifying fake Aadhaar, a plot to bring in CAA-NRC?

The post New Bill to link birth and death registry with Electoral rolls in next Session: Amit Shah appeared first on SabrangIndia.

The five-judge bench of CJI DY Chandrachud, Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha unanimously gave a decision in a judgement authored by the CJI holding that the Governor was not justified in calling for a floor test. However, the court also held that since former chief minister Uddhav Thackeray did not face the floor test (that has now been held to have taken place in illegal circumstances!) and “voluntarily resigned” as the Chief Minister (CM), the court has not quashed this “voluntarily given resignation”. Had Thackeray faced the floor test, even if the actions of the Governor and speaker are violative of the law, the Court could have restored the status quo ante.

Much has been said in comment on this judgement that has a significant bearing on the overtly political (even partisan) role that Governors have played. Analyist and journalist Suhas Palshikar has publicly said that, “Very strictly speaking, hasn’t the SC actually said that formation of Shinde government doesn’t have legal basis? It may not have ordered removal of the government but once legality is gone, government must go too.”

In eight-odd hearings that took place to a full galaxy of senior advocates etc earlier, the Supreme Court bench had considered the practicalities of reinstating Uddhav Thackeray when he had already resigned after acknowledging that he did not have the required strength of MLAs in the house.

It was in June 2022, that a group of Shiv Sena MLAs led by strongman from Thane, Eknath Shinde rebelled against Udhav Thackeray – saying that the latter’s decision to align with the Congress and the Nationalist Congress Party went against the party’s Hindutva ideology. When it became evident that the rebel MLAs – with the support of the BJP-appointed governor – would call for a trust vote, the Shinde received disqualification notices from the then deputy speaker!

The original Shiv Sena led by Udhav Thackeray, that faction moved the Supreme Court to consider whether the rebels should be disqualified

The Background and Timeline

IN October 2019, after the then conducted Maharashtra State Assembly elections, the BJP got 106 seats, ShivSena got 56, NCP got 53 and INC got 44. In November 2019, the Shiv Sena, the NCP, and the INC formed a post-poll alliance which came to be known as the Maha Vikas Aghadi which then formed the government. This alliance broke a pre-poll alliance between the BJP and Shiv Sena that had fought the elections jointly.

During the entire period of the Covid 19 pandemic, it was chief minister, Udhav Thackeray’s sobre responsive governance that received wide approbation. The refusal to allow Maharashtra to erupt on communal lines, and the curb on hate speech was also noteworthy.

However, after some months of speculation before, serious efforts were made by the central BJP regime and former chief minister Devendra Phadnis to de-stabilise the government. In June 2022 news reports revealed that some MLAs who belonged to the Shiv Sena were meeting with leaders of the BJP. At this time, the office of the Speaker lay vacant, and the functions of the Speaker were being discharged by the Deputy Speaker, Mr. Narhari Zirwal. The issue of the sudden resignation of Nana Patole from the state assembly and the failure of the MVA to appoint a speaker has also been subsequently questioned, even criticised! The Maharashtra Assembly was without speaker since February 4 2021 and  Narhari Zirwal was discharging functions of a Speaker since then until July 3, 2022.

Thereafter, the Shiv Sena fractured into two factions: one led by the then Chief Minister, Mr. Uddhav Thackeray, and the other led by the Group Leader, Mr. Eknath Shinde. Each faction claimed to represent the “real” political party and passed various resolutions pertaining to the affairs of the original party.

Why the Supreme Court did not disqualify the MLAs

The petitioners have relied on Rajendra Singh Rana (supra) to urge that this Court should invoke its extraordinary jurisdiction and itself decide the question of disqualification against the respondent MLAs. Alternatively, it is urged that this Court should direct the Deputy Speaker, Mr. Zirwal, who was performing the functions of Speaker prior to July 3, 2022, to decide the disqualification petitions.

In Rajendra Singh Rana the Supreme Court had observed that it normally remit the matter to the Speaker or Chairman to take a proper decision in accordance with law. However, this Court decided to adjudicate the disqualification petitions since the Speaker failed to decide the same in a time bound manner as the petitions had remained pending for more than three years.

This Court should normally refrain from deciding disqualification petitions at the first instance, having due regard to constitutional intendment. Disqualification of a person for being a member of the House has drastic consequences for the member concerned and by extension, for the citizens of that constituency. Therefore, any question of disqualification ought to be decided by following the procedure established by law. Even in cases where the Speaker decides disqualification petitions without following the procedure established by law, this Court normally remands the disqualification petitions to the Speaker. Therefore, absent exceptional circumstances, the Speaker is the appropriate authority to adjudicate petitions for disqualification under the Tenth Schedule.

The petitioner however submitted that the disqualification proceedings should not be remanded to the Speaker since he has demonstrated himself to be incapable of acting fairly and impartially. in Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly (2020) 2 SCC 595 where it was observed that the Speaker does not deserve to be reposed with public trust and confidence if they are not able to dissociate from their political party and if they act contrary to the spirit of neutrality and independence.

The petitioners also challenged the decision of the Speaker to cancel the role/position of Shiv Sena’s Sunil Prabhu as the Chief Whip to argue that the Speaker is impartial. The Court stated that even if it sets aside this decision, it was not a sufficient reason to decide the disqualification petition. The court also discarded the argument that Deputy Speaker must be allowed to decide on disqualifications since the Deputy can perform duties of a Speaker only when office of the Speaker is vacant and the current Speaker was duly elected.

Finally however, the court, said that decision of the Speaker on the question of disqualification is subject to judicial review.

Constitutional sequence in deciding symbol

The petitioners also sought a constitutional sequence from the Court to state that the Election Commission of India (ECI) cannot decide upon which party should get the symbol until the Speaker decides upon the disqualification of members. This proposition was not accepted by the Court since, the Speaker’s order became final only after all avenues for appeal are/were exhausted and the time this would take is uncertain.

“The ECI, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time,” the court said (Para 148).

How does the ECI decide which party gets the main symbol after defection?

The court observed that in arriving at the decision of which party gets the symbol, “it is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order.” (Para 150)

“The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test,” the court added. (Para 150)

The court also noted that nothing in the Symbols Order mandates use of a particular test for the ECI to reach a decision. “The ECI must apply a test which is best suited to the unique facts and circumstances of the case before it. The parties in the dispute before the ECI are free to propose a suitable test and the ECI may either apply one of the tests proposed or fashion a new test, as appropriate.” (Para 151)

“An evaluation of whether rival groups are adhering to the aims and objects of the party as incorporated in its constitution, and which of the rival groups is more in consonance with such aims and objects, is an entirely subjective exercise… The ECI must remain a neutral body and refrain from passing a subjective judgement on the approaches preferred by the rival factions.” (Para 153)

The court also clarified that the ECI decision on symbol has a prospective effect and it is not necessary that the decision of ECI must be consistent with the decision of the Speaker on deciding disqualification. Both can run concurrently and can be followed in letter and spirit.

Neither can the disqualification proceedings before the Speaker be stayed in anticipation of the ECI decision.

Can a ‘split’ in party be a defense for the disqualification of member?

The court has refuted this argument.

“No faction or group can argue that they constitute the original political party as a defense against disqualification on the ground of defection,” the court said in view of the deletion of Paragraph 3 under Tenth Schedule of the Constitution. “In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction.” (Para 164)

The Speaker may be called upon to determine who the “real” political party is while adjudicating disqualification petitions. Since Paragraph 3 of Tenth Schedule has been deleted neither factions can be considered to constitute the original political party.

“In arriving at their decision, the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party. If the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the ECI before the rival factions emerged.” (Para 168)

This means that when the two parties appoint whips the Speaker decides which of the two represent the party.

“Thus, the adjudication of the Speaker on whether a member must be disqualified under Paragraph 2(1(b) would also depend on the decision of the Speaker recognising one of the two (or more) Whips.” (Para 169)

Role of the Governor as per the Constitution

Among the sharpest observations in the judgement are those regarding the role the Governor, Bhagat Singh Koshyari played in this unseemly political controversy. In Paragraph 193, the bench explains how the governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the house and that he should call for a floor test. Hence, the exercise of discretion by the governor, in this case, was not in accordance with the law, the bench held.

Powers of the Governor: The Executive power of the State is vested in the Governor. Article 163 requires the Governor to exercise their legislative and executive power on the aid and advice of the Council of Ministers. Article 163(2) empowers the Governor to exercise their discretionary powers when required by or under the Constitution. It is under this power that the Governor acted and directed Thackeray for a floor test. Article 174(1) provides that the Governor shall from time to time summon the House to meet at such time and place as they think fit, which means calling for a session of the House. Article 175(1) empowers the Governor to address the House and Article 175(2) permits the Governor to send messages to the House whether with respect to a pending Bill or otherwise.

The court held that the power of the Governor to summon the House under Article 174 must be exercised on the aid and advice of the Council of Ministers. At the same time, if the Speaker and the Government attempt to circumvent a no-confidence motion, the Governor would be justified in exercising the power under Article 174 without the aid and advice of the Council of Ministers.

Was the governor right in directing a floor test?

After the Governor received letters from the Leader of Opposition at the time, Mr. Devendra Fadnavis, and seven MLAs who were elected as independent candidates, requesting the floor test, the Governor, on June 28, 2022 issued a letter to Uddhav Thackeray. Thackeray challenged the same before the Supreme Court on Juen29 and the court refused to grant an interim stay on the floor test. Thus, Thackeray resigned as the Chief Minister.

The court, in Shivraj Singh Chouhan v. Union of India 2020) 17 SCC 1 held that the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Court emphasised that the Governor should not use their discretionary power to destabilise or displace democratically elected governments.

Rule 95 of the Maharashtra Legislative Assembly Rules stipulates that a member who wishes to move a motion of no-confidence in the Council of Ministers shall do so by a notice in writing. “If the Speaker and the Government attempt to circumvent a no-confidence motion, the Governor would be justified in exercising the power under Article 174 without the aid and advice of the Council of Ministers.” (Para 179)

“The power of the Governor to act without the aid and advice of the Council of Ministers is of an extraordinary nature. The exercise of such power has ramifications on parliamentary democracy. Hence, the ambit of the exercise of such power by the Governor must be calibrated to meet the exigencies of situations where the Governor is satisfied on the basis of objective material that there is sufficient cause to warrant the exercise of their extraordinary power. The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law.” (Para 181)

The court examined the reasons which led to the Governor’s decision to call for a floor test and observed that although the resolution of June 21, 2022 specified that some MLAs of the SSLP were dissatisfied with the functioning of the MVA government, it does not record their intention to withdraw support from the Government and some of these were even Ministers int hat government. On the basis of this resolution the Governor concluded that “a majority of the Shiv Sena MLAs have given a clear indication … that they intend to exit from the Maha Vikas Aghadi Government.” (Para 184)

Even the opposition party did not issue a notice for no-confidence motion against the MVA government.

The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government. The resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government. The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test… Once a government is democratically elected in accordance with law, there is a presumption that it enjoys the confidence of the House. There must exist some objective material to dislodge this presumption. (Para 186)

The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party disputes or intra party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for. (Para 188)

Nothing in any of the communications relied upon by the Governor indicates that the dissatisfied MLAs from the Shiv Sena intended to withdraw their support to the Chief Minister and the Council of Ministers. At the highest, the various communications expressed the fact that a faction of MLAs disagreed with some policy decisions of the party. Whether they would choose to enter deliberations with their colleagues in the House or in the political party, or mobilise the cadres, or resign from the Assembly in protest, or opt to merge with another party, was uncertain. Therefore, the Governor erred in relying upon the resolution signed by a faction of the SSLP MLAs to conclude that Mr. Thackeray had lost the support of the majority of the House. (Para 190)

The Governor also relied upon the letter dated June 25, 2022 from 38 SSLP members claiming that the security provided to them and to their families was illegally withdrawn. The appropriate response of the Governor in such cases is to ensure that the security that they are lawfully entitled to continues to be provided to them (Para 191).

The third communication that the Governor relied on is the letter dated June 21, 2022 addressed by Eknath Shinde to the Deputy Speaker stating that the appointment of Ajay Choudhari was illegal. The court held that this was within the domain of the legislature and discretionary power of the Governor under Article 163 of the Constitution is limited to situations where a constitutional provision expressly provides for it. In any event, the contents of the letter did not indicate anything to suggest that the then-Chief Minister Mr. Thackeray had lost the confidence of the House. (Para 192)

The Governor also relied upon the letters written by Mr. Fadnavis and seven ‘independent’ MLAs, calling upon him to direct Mr. Thackeray to prove his majority on the floor of the House. The court opined that Fadnavis and other could have just moved a motion of no-confidence. A request made by some MLAS for CM to prove majority does not amount to a relevant and germane reason to call for a floor test. Hence, the exercise of discretion by the Governor in this case was not in accordance with law. (Para 193)

Why was Thackeray not reinstated?

The main reason behind why the court did not reinstate the previous government like it had in S R Bommai v. Union of India (1994) 3 SCC 1 and Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1, was that Thackeray did not face the floor test on 30 June 2022 and instead submitted his resignation. The court is not in a position to quash a resignation that has been submitted voluntarily.

The court in its interim order where it had refused to stay the floor test (dated June 30, 2022) had clearly said that

the outcome of the trust vote to be conducted on 30 June 2022 “shall be subject to the final outcome” of this batch of petitions. Since the trust vote was not held, the question of it being subject to the final outcome of these petitions does not arise. (Para 194)

The court also refused to accept the petitioner’s contention that the pendency of disqualification petitions before the Speaker or the Deputy Speaker ought to have resulted in the postponement of the floor test. The court held that the pendency of disqualification petitions does not bar an MLA from participating in the proceedings of the House, which includes a floor test.

The option of initiating a no-confidence motion after the adjudication of disqualification petitions is open to the MLAs. However, this Court cannot stay the proceedings of the House until the disqualification petitions are decided. To do so would amount to interfering with the proceedings of the House. (Para 195)

Was the Governor right in inviting Shinde to form government?

The petitioners challenged the Governor’s discretion in inviting Shinde to form the government since his appointment was barred by Article 164(1B) and that Governor has exceeded the scope of his authority by recognizing one of the two rival factions as being the “real” Shiv Sena.

The court observed that this Article states that the member if disqualified cannot be appointed as a Minister. The bar begins to operate only upon the member of the legislature incurring disqualification, not if the petition for disqualification has been instituted.

The court held that the Governor’s decision to invite Shinde headed collation to form government was justified. This is because the CM post lie vacant on June 29 and on the same day, Fadnavis, wrote to the Governor claiming that 106 MLAs of the BJP extend their support to Mr. Eknath Shinde for the formation of a government, so did 8 independent candidates. The Governor accordingly asked the Shinde led government to prove majority on the floor of the house. Hence, his decision was justified.

Conclusion

1. The correctness of the decision inNabam Rebia (supra)now stands referred to a larger Bench of seven judges;
2. This Court cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this Court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period; .
3. An MLA has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualification. The validity of the proceedings of the House in the interregnum is not “subject to” the outcome of the disqualification petitions;
4. The political party and not the legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party. The decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated 3 July 2022 is contrary to law. The Speaker shall recognize the Whip and the Leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement
5. The Speaker and the ECI are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively;
6. While adjudicating petitions under Paragraph 15 of the Symbols Order, the ECI may apply a test that is best suited to the facts and circumstances of the case before it;
7. The effect of the deletion of Paragraph 3 of the Tenth Schedule is that the defence of ‘split’ is no longer available to members facing disqualification proceedings. The Speaker would prima facie determine who the political party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claim to be that political party;
8. The Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him, to reach the conclusion that Mr. Thackeray had lost the confidence of the House. However, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation; and
9. The Governor was justified in inviting Mr. Shinde to form the government.

The Supreme Court, has in its final decision on the issue, certainly clarifies a few cobwebs that surround understanding and application of the Tenth Schedule to the constitution since it was enacted in 1985 to disqualify legislators on the ground of defection. But its inability (or refusal) to provide relief to the petitioner, despite seriously faulting the governor and the speaker for their decisions –held bad in law and unconstitutional– resulting in the unseating of Udhav Thackeray’s government, leaves no lasting judicial solution to an inherently faulty illegal political process.

The complete judgement may be read here:

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The post What and Why of the SC judgement on Maharashtra 2022 politics: Shiv Sena v/s Shiv Sena appeared first on SabrangIndia.

Government seeks modifications

The clarification sought in the order dated June 3, 2022 was that the Eco-Sensitive Zones (ESZs) which have already been notified (final and draft) by the Ministry of Environment Forests and Climate Change (MoEF) or the proposals for which have been received in the Ministry be exempted from the directions. A modification was also sought that paragraph 56.1 of the order be not made applicable where National Parks and Wildlife Sanctuaries are located along inter-State boundaries and/or common boundaries.

Paragraph 56.1 of the order read as follows:

“56.1. Each protected forest, that is, national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed and prescribed in the Guidelines of 9-2-2011 shall be strictly adhered to. For Jamua Ramgarh Wildlife Sanctuary, it shall be 500 m”

Modification were also sought in paragraph 56.5 which stated that if any activity (which is not a prohibited activity) is being already carried in such ESZ around a national park or sanctuary, it may continue with permission from the concerned Principal Chief Conservator of Forests (PCCF) and such permission may be granted (for any activity not so prohibited as per February 9, 2011 guidelines) if they were in place before the order was passed. The paragraph also said that no new permanent structure can come up in the ESZ.

The judgement dated June 3, 2022 may be read here:

The February 9, 2011 guidelines were framed after consulting the National Board for Wildlife as well as state and UT governments. The government submitted that the paragraph 56.5 in the 2011 order can cause hardships to residents of ESZs. The union government as well as many state governments appearing before the court stated that there cannot be a uniform boundary for a particular National Park or Wildlife Sanctuary. It was further argued that there is no settlement of rights for [persons living in ESZs and in such areas since people are residing, various developmental activities like construction of schools, dispensaries, anganwadis are required to be undertaken. Further, it would mean that persons residing there cannot construct new homes and getting permission from PCCF would be tedious as well.

Background: History of order passed on ESZs / buffer zones

On September 16, 2005 an order was passed in [(2006) 5 SCC 25] which restricted mining activities in buffer zones even with any temporary permit. The order also asked MoEF to tell the court its views on buffer zones after consulting with NBWL.

On August 4, 2006 [(2010) 13 SCC 740] was with regards to banning the mining activities in the National Parks, Sanctuaries and forest areas and laid down pre-conditions for granting temporary work permits.

On December 4, 2006 [2011) 15 SCC 791] the court expressed its anguish towards various state governments for not responding to the letter issued by MoEF asking them to identify suitable areas. This order also referred to a decision dated January 21, 2002 that directed to notify the areas within 10 kilometres of the boundaries of National Parks and Sanctuaries as ESZs. The MoEF letter had made a departure from this directions of “10 km” buffer zone.

In order passed on April 21, 2014 in Goa Foundation v. Union of India and Others [(2014) 6 SCC 590] the court had observed that there shall be no mining activity within one kilometre of the safety zone around National Park or Wildlife Sanctuary and that this has to be enforced. The court had also directed MoEF to issue the notification of ESZs around the National Park and Wildlife Sanctuaries of Goa within 6 months.

In an order dated December 11, 2018, the court noted that the central government had submitted that there were 104 National Parks and 558 Wildlife Sanctuaries making a total of 662 National Parks and Wildlife Sanctuaries in the country and that while proposals were received form states, 21 National Parks and Wildlife Sanctuaries still lacked proposals. The Court therefore expected the MoEF & CC to actively pursue the preparation of the draft Notification and to issue a final Notification at the earliest. The court also expressed anguish that even 12 years later no effective steps were taken by state governments and thus directed that an area of 10 kilometres around these 21 National Parks and Wildlife Sanctuaries be declared as ESZs.

Guidelines

The February 2011 guidelines refer to a meeting of the Indian Board for Wildlife held on January 21, 2002, in which “Wildlife Conservation Strategy-2002” was adopted wherein under point it was envisaged that lands falling within 10 kilometres of the boundaries of National Parks and Sanctuaries should be notified as eco-fragile zones.

The guidelines stated that:

·        the purpose of declaring ESZs around National Parks and Sanctuaries is to create some kind of Shock Absorber for the Protected Areas

·        the activities in the ESZs would be of a regulatory nature rather than prohibitive nature

·        many of the existing Protected Areas have already undergone tremendous development in close vicinity to their boundaries (such as Guindy National Park, Tamil Nadu, Sanjay Gandhi National Park, Maharashtra) therefore that defining the extent of ESZs around Protected Areas will have to be kept flexible and Protected Area specific.

·        as a general principle, the width of the ESZs could go up to 10 kilometres around a Protected Area

·        in case where sensitive corridors, connectivity and ecologically important patches, crucial for landscape linkage, are even beyond 10 kilometres width, these should be included in ESZs

·        first step to create an inventory of land use patterns operating around the protected areas and a Committee could be formed to suggest extent of ESZs, best methods to manage them etc

·        where the boundary of a Protected Area abuts the boundary of another State/Union Territory where it does not form part of any Protected Area, it should be the endeavour of both the State/Union Territory Governments to have a mutual consultation and decide upon the width of the ESZs around the Protected Area in question.

·        guidelines are indicative in nature and the State/Union Territory Governments may use these as basic framework to develop specific guidelines applicable in the context of their National Parks, Wildlife Sanctuaries, important corridors etc.

The guidelines also listed commercial mining, setting of saw mills, setting of industries causing pollution, Commercial use of firewood, Establishment of major hydroelectric projects, Use of Production of any hazardous substances, Discharge of Effluents and solid waste as prohibited activities.

Court’s observations

The MoEF in an office memo dated May 17, 2022 required that any activity listed in Schedule of the EIA Notification 2006, when conducted in a notified ESZs when conducted within 10 kilometres of such National Park or Sanctuary, requires the consideration and recommendation of the NBWL.

The court held that there are inbuilt safeguards for preventing rampant construction and abuse of process which may be detrimental to the development and maintenance of wildlife habitats and if paragraph 56.5 is left un modified, the PCCF will receive hundreds of permit pleas and it would be left with no other job but to deal with and also even a farmers desiring to conduct farming activities would have to seek permission. “We find that such a direction is impossible to be implemented,” the court said (Para 50). “If the direction as issued is continued, it would certainly hamper the day to day activities of the citizens residing in ESZs. As such, we find that the said direction needs to be modified,” the court added (Para 52).

Moving on to paragraph 56.1 of the impugned order, the court noted that the “area to be declared as ESZ cannot be uniform and will be Protected Area specific. In some cases, it may be 10 kilometres on one side and 500 meters on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of the Protected Area.” (Para 55). The court however, emphasised that a detailed procedure as given under Rule 5 of the 1986 Rules has to be followed and once ESZ is notified after such procedure, the same has to be followed.

“There are various factors which will determine the ESZs for a particular Protected Area. The circumstances may differ from one Protected Area to another Protected Area. As such, we find that the direction which prescribes a uniform one kilometre ESZ requires to be modified.” (Para 56)

The court also noted that final notifications have been issued in respect of 474 Protected Areas whereas draft notifications have been issued in respect of 102 Protected Areas and 73 proposals are pending. In the impugned order the court had said that minimum width of the ESZ may be diluted in overwhelming public interest but for that the state/UT government would have to approach the Central Empowered Committee (CEC) and MoEF who would then make recommendations to the court which would then pass orders.

With respect to paragraph 56.1 th3 court held,

“…the directions contained therein would not be applicable to the ESZs in respect of which a draft and final notification has been issued by the MoEF & CC and in respect of the proposals which have been received by the Ministry.” (Para 61)

“We, however, direct the Central Government that wide  publicity should be given to the draft notification which is  required to be published under the provisions of clause (a) of  sub-rule (3) of Rule 5 of the 1986 Rules. We further direct  that the final notification to be published under clause (d) of  sub-rule (3) of Rule 5 of the 1986 Rules shall not be given  effect for a period of 30 days from the date of issuance  thereof.” (Para 62)

The court also gave liberty to anyone aggrieved such notification to approach the court directly by filing an application.

“We further clarify that the direction contained in paragraph 56.1 of the order dated 3rd June 2022 (supra) would not be applicable where the National Parks and Sanctuaries are located on inter-State borders and/or share common boundaries.” (Para 64)

Paragraph 56.5 of the impugned order was replaced by the following:

(i) The MoEF & CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities;

(ii) We further direct that while granting Environmental and Forest Clearances for project activities in ESZ and other areas outside the Protected Areas, the Union of India as well as various State/Union Territory Governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May 2022 issued by MoEF & CC. (Para 66)

Conclusion

Examining the history of how ESZ came into being, it is clear that the earliest opinion expressed in the present connection, as far back as 2002 was to keep a 10 km radius area as buffer zone. However, state governments delayed proposals to the union ministry and even the Ministry itself tweaked the court’s directions for the 10km buffer (which the court has surprisingly not addressed). Further, suddenly, with respect to Goa, the directions were changed to one km of a buffer zone and now that has been further diluted and the discretion has been left up to a “committee” which will decide how much buffer zone is to be kept for which national park and Sanctuary. The concerns raised by the government seemingly about residents living in the buffer zone areas who might want to reconstruct their houses. However, while addressing this concern, the union government has managed to convince the court to do away with permissions required for other non-permitted activities as well. However, in any case, mining activities remain prohibited in the 1 km buffer area, irrespective.

The complete judgement may be read here:

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The post Has the recent Supreme Court order further diluted Eco-sensitive zones? appeared first on SabrangIndia.

These withdrawals have favoured over 2,000 accused and 1,000 of which were accused in cases of communal crimes. Those who benefited from these withdrawals include a BJP MP and MLA. However, the report does not disclose the name.

Withdrawal of cases requires recommendation by the Home Minister, clearance by a state Cabinet sub-committee, and approval of the Cabinet. However, in August 2021, the Supreme Court bench led by then CJI NV Ramana directed that no criminal case against MPs or MLAs can be withdrawn without an approval of the high court of the concerned state. This was done when misuse of Section 321 of the Criminal Procedure Code (CrPC) was flagged before the court by an amicus curiae. In September 2020, the Supreme Court asked the high courts to register suo motu writ petitions to monitor trials against MPs and MLAs, and asked them to examine the cases of withdrawals.

Even the Congress had resorted to withdrawal of cases during its last tenure (2013-2018) which were filed against about 1,600 activists which included activists of the SDPI and now-banned PFI. However, most of these cases appear substantially different and were linked to violation of prohibitory orders imposed by the police.

As per IE report, Of the 182 cases with communal links dropped under the BJP government, 45 pertain to violence allegedly by right-wing activists in the Uttara Kannada district in December 2017, following the death of a Hindu youth, Paresh Mesta, which was found to be a case of accidental death by the CBI. Further, the orders for withdrawal of prosecution include four incidents of cow vigilantism in Chikamagalur, several incidents of violence in Kodagu and Mysuru over celebration of Tipu Jayanti, incidents around festive occasions like Rama Navami, Hanuman Jayanti and Ganesh Festival, protests over inter-religious marriages, and conversion, writes IE.

One of these withdrawals was challenged in the Karnataka High Court by the People’s Union for Civil Liberties (PUCL). This was pertaining to withdrawal of cases against Mysuru BJP MP Prathap Simha and BJP MLA Renukacharya following this, there were no withdrawal orders between 2020 and 2022.

Four cases against the leader of an emerging right wing group in the state, Hindu Jagran Vedike, Jagadish Karanth were dropped in October 2022.

Another beneficiary is Sri Rama Sene leader Siddalinga Swami who was accused of hate speech in Kalaburgi in April 2016. The case against him was withdrawn in March 2023.

Right Wing outfits enjoy state shield, impunity?

Hindu Jagran Vedike leader had targeted Muslims girls at the centre of the hijab controversy in Udupi, and said that the girls had maligned the name of the coastal region and that the HJV had exposed their “true colours”. It was at HJV’s annual convention of December 2022 that terror accused Sadhvi Pragya Thakur made some provocative remarks and incited Hindus to keep weapons at home. She also said that Hindus should “answer those involved in love jihad the same way”. In December 2022, HJV members tried to enter Jamia Masjid in Srirangapatna, Mandya district. About 2,000 police personnel were deployed to avoid law and order situation and despite this, a young Hindu devotee climbed atop a house owned by a Muslim family where a green flag was erected and replaced with the saffron flag amidst chants of “Jai Sri Ram“. HJV is an outfit that has made itself visible in many of the communal incidents in the state, be it the hijab controversy or the boycott of Muslim traders from temple fairs in the state.

Sri Ram Sene is another outfit in Karnataka which is consistently involved in targeted crimes against minorities. In January 2023, it worked with Vishwa Hindu Parishad (VHP) as they called for boycott of Muslim vendors during the Panchalingeshwara temple fair in Vittal town in Dakshina Kannada district and evicted the shop of a Muslim owner. Pramod Muthalik, who is the chief of the Rashtriya Hindu Sena, the parent organisation of the Sri Ram Sene, is known to deliver hate speech from time to time. In February, a month later, he made a misogynistic comment urging Hindu men to “get 10 Muslim girls for losing 1 Hindu girl”. In January, while delivering a speech in Belagavi, he claimed that displaying a sword at home would not result in police officials filing any complaints and that the purpose of doing so was to defend women rather than to kill. Sri Ram Sene is also known to spread terror among consenting couples during Valentine’s Day, in the name of protecting the “Hindu culture”. One of the Sri Ram Sene members is also accused of killing journalist Gauri Lankesh in 2017.

Court rejects govt order

In February 2023 however, a civil judge and magistrate in Sirsi in Uttara Kannada defied the withdrawal order (dated February 28, 2023) against 66 accused who allegedly were involved in communal violence in the Paresh Mehta death case. The court deemed the offences to be triable by the Sessions court.

Court’s stand on withdrawal of cases

In State of Bihar vs Ram Naresh Pandey & Anr. AIR 1957 SC 389 the Supreme Court held that while granting consent to withdrawal the court just needs to ensure that the Public prosecutor has exercised his executive function properly and that it is “not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes”.

In Sheonandan Paswan vs State of Bihar & Ors (1987) 1 SCC 288 the majority judgement held that the court in deciding to grant consent to the withdrawal petition must restrict itself to only determining if the Prosecutor has exercised the power for the above legitimate reasons.

The Supreme Court, in State of Kerala v K Ajith and Ors (in Cri Appeal No. 697 of 2021; decided on July 28, 2021), after analysing precedents pertaining to section 321 CrPC laid down the following principles on withdrawal of prosecution:

(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:

(a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

(d) The grant of consent sub-serves the administration of justice; and

(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.

The post BJP govt in Karnataka drops 182 cases of hate crimes in 4 years: Report appeared first on SabrangIndia.

As per sources quoted in The Wire, the Election Commission of India sent back 6.5 lakh VVPAT machines for being defective. These were from among the newest machine that were purchased in the run up to the 2019 General Elections. They were also subsequently used for Assembly Elections of many states. A total of 17.4 lakh VVPAT machines were ordered in 2018 and it has now been revealed that over 6.5 lakh of these machines turned out to be defective.

These machines were sourced from Bharat Electronics Limited (BEL) as well as Electronics Corporation of India Limited, Hyderabad, among others.

“The defective VVPATs were awaiting repairs following a decision taken by the ECI on October 8, 2021. The Wire has learnt that instructions have not been sent to the union territories of Andaman and Nicobar Islands, Lakshadweep and Daman and Diu,” reported The Wire.

When the publication spoke to a member of the opposition, they said that no explanation was given to them about the reason for which the machines were being sent back.

What is VVPAT?

The full form of VVPAT is Voter Verifiable Paper Audit Trail. It is a machine as important as the EVM or Electronic Voter Machine as it gives instant feedback to the voter with a printed voting slip. Once a vote is registered by the voter, by pressing on a button, the VVPAT machine prints the slips containing the name of the candidate voted for and automatically drops it in a sealed box. It is placed in a transparent box and when it prints the vote, it is displayed to the voter for 7 seconds before it gets dropped in the storage box.

However, VVPATs are not tallied in every polling booth. It has been a long standing demand of political parties that VVPATs be tallied with the final vote count. For now, VVPATS are counted in a random fashion where only some constituency’s votes are tallied with VVPAT slips.

VVPAT verification is also done when there are allegations of fraud or miscalculation of votes.

In case of discrepancy between number of votes counted by EVM and number of votes recorded by VVPAT, the latter is upheld.

In the 2019 general elections at least 8 cases of mismatch between EVM and VVPAT votes were found in Rajasthan, Himachal Pradesh, Manipur, Meghalaya and Andhra Pradesh.

VVPAT slips were hurriedly destroyed in 2019

The revelation of these defective VVPATs brings into question why the ECI destroyed voter slips recorded by the VVPATS merely within 4 months of the 2019 general elections, in violation of the law.

The Conduct of Elections Rules, 1961, under rule 94 (b) states that packets referred to in Rule 93(1) shall be retained for a period of one year and shall thereafter be destroyed and those packets containing the counterfoils of used ballot papers shall not be destroyed except with the previous approval of the Election Commission.

The packets referred to in Rule 93(1) include:

               (a) The packets of unused ballot papers with counterfoils attached thereto;

(b) The packets of used ballot papers whether valid, tendered or rejected;

(c) The packets of the counterfoils of used ballot papers;

(d) The packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub-section (1) or sub-section (2) of section 152; and

²[(dd) the packets containing registers of voters in form 17-A;]

(e) The packets of the declarations by electors and the attestation of their signatures; (emphasis provided)

This means it is mandatory for the Election Commission to retain used ballot papers (among others) for at least a year. Then why were these ballot papers recorded by VVPATS in the 2019 general election destroyed within 4 months? The Quint had earlier both found and exposed this information that the VVPAT slips were destroyed through an RTI three years ago. Through the RTI it was found that the VVPAT slips were destroyed on the basis of express orders issued by the ECI. The publication also found that after VVPATS were assigned for the elections, they were checked and maintained by employees of a private company which left them vulnerable to be tampered with.

 Supreme Court petition

A plea was filed by the NGO Association for Democratic Reforms last week seeking a declaration that it is the fundamental right of every voter to verify that their vote has been ‘recorded as cast’ and ‘counted as recorded’, reported LiveLaw. The plea pointed towards a vacuum in law as there is no procedure for the voter to verify that the vote has been ‘counted as recorded’ since there is no procedure to match the EVM voted with VVPATs. This refers to the randomly selected constituencies where such cross checking is done while other constituencies rely upon just EVM votes.

The petition states that a paper trial is a must and indispensable element of free and fair elections.

In 2019 a bench led by then CJI SA Bobade had dismissed a plea filed by Telugu Desam Party (TDP) chief N. Chandrababu Naidu and 21 other parties seeking counting of at least 50% of VVPAT slips.

Civil servants speak

The Wire spoke to a former Chief Election Commissioner as well as another former civil servant to get their view on VVPAT counting. The former CEC said, “All VVPAT slips can be counted in a matter of seconds if they decide to use currency counting machines. These machines can be reprogrammed or the paper size can be enlarged to fit the machine. The technology is available. All that is required is the will.”

A former civil servant and a member of the Citizens Commission on Elections, M.G. Devasahayam, says, “In Germany, they went back to the paper ballot system because the EVM/VVPAT method was found to be ‘unconstitutional’ by their Supreme Court.”

M.G. Devasahayam, a former Army and IAS officer wrote in The Wire how transparent the paper ballot system was, since the vote was cast manually by stamping a paper and counting was done in the presence of the Returning Officer (RO) and candidates’ agents. He pointed out that in Germany EVMs were declared unconstitutional compelling the whole of Europe to go back to paper ballots and most of the USA also followed suit.

Citizens’ Commission on Elections

In January 2021, the Citizens’ Commission on Elections had come out with a report stating that EVMs cannot be assumed to be tamper proof. The CCE is chaired by former Supreme Court judge Madan Lokur and comprises former chief information commissioner Wajahat Habibullah, former Madras High Court judge Hari Paranthaman, economist Arun Kumar, activist John Dayal, senior journalist Pamela Philipose, IIT-Delhi professor Subhashis Banerjee and former IAS officer Sundar Burra.

Many experts had deposed before the CCE as well as members of the technical committee of the ECI. The CCE’s report concluded that due to lack of End-to-End (E2E) verifiability, the EVM/VVPAT system is not verifiable and therefore unfit for democratic elections. The report also pointed out that the EVM design is not open for public technical audit which makes it all the more opaque.

Is EVM-VVPAT combination fool proof?

Kannan Gopinathan, the computer scientist turned civil servant (who resigned from services), who was Returning Officer in the 2019 general elections questioned the EVM-VVPAT system. In his thesis he writes, “If EVM-VVPATs are stand-alone machines not connected to any external device, as repeatedly claimed by the Election Commission of India (ECI), how does the VVPAT machine print the name and symbol of the chosen candidate? When and how are the names and symbols of the candidates uploaded on to the VVPAT? Does this affect the technical, physical and procedural security claims of our electronic voting process?”

These questions have been left unanswered till date by the ECI and consequently the transparency of voting and elections is at a questionable precipice.

It is not clear what defective VVPATS mean. Does it mean these VVPATS were unable to display the vote cast by the citizen? Does it mean these VVPATs were unable to record these votes as counted? Does it mean that if cross checked with the EVM votes, these VVPATS fell short, despite them having precedence over EVMs in cases of dispute? All these questions also remain unanswered.

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The post What do 6.5 lakh defective VVPATs say about India’s election process? appeared first on SabrangIndia.

A video surfaced on Twitter on April 11 showing a crowd of about 100 people, men and women, taking an oath in Bastar Chhattisgarh, to economically boycott Muslims and Christians.  

“Today I vow that I will not deal in trade with any non-Hindu be it Muslim or Christian; be it milk, fruit, mattress, grocery or any type of goods. I take an oath to economically boycott them completely. We pray to Lord Ram that he gives us strength to fulfil this oath” the oath was then concluded with chants of “Jai Shree Ram”. The speaker, who introduced himself as Mukesh Chandak, addressing the crowd said that Hindu businesses should boldly display religious symbols like Swastika, Om etc so that people know that they belong to Hindus.

This is from #Bastar, #Chhattisgarh.

Local #Hindus took oath for economic boycott of #Muslims and #Christians.#Hindutva #HateSpeech pic.twitter.com/H0Vzd3PUb2

— Hate Detector ? (@HateDetectors) April 11, 2023

Economic boycott is one of the most pervasive means of religious persecution which hits the minorities where it would hurt anybody the most, their livelihoods. If a person is unable to earn their daily bread because the ‘majority’ community refuses to deal with them, employ them or carry out any trade with them, they will certainly be pushed towards poverty and the lowest rung of the society.  

Last month, Sabrang India had done a piece on how economic boycott of Muslims could push them further beyond marginalisation. Pointing towards the real economic impact such boycotts have on the community, the article states that Muslim community has largely been on the precipice of poor economic outcomes, based on various studies.  The Census 2011 data showed that almost a quarter of India’s 370,000 beggars are Muslim. A report released in 2018 titled “Vision 2025- Socio-Economic Inequalities, Why does India’s economic growth need an inclusive agenda” [authored by economist Amir Ullah Khan and historian Abdul Azim Akhtar], found that most Muslim asserted that their socio-economic condition had not improved  in the last 10 years. As per the survey, in terms of monthly per capita expenditure, Muslims were at the lowest rung, below SCs and STs in urban areas and slightly above STs in rural areas, reported Times of India.

Such calls for economic boycott were also made in Gujarat in the aftermath of the 2002 pogrom. An archival article of Communalism Combat details how Muslim were discriminated against after the pogrom even a whole year later.

“Muslim women from over 40 households who used to work as agricultural labourers are not entertained, and youth who drove transport vehicles have had their businesses taken over. Hunger and deprivation continues to hit the 400 Muslim residents of Por, with over 70 young persons out of jobs. The total strength of this Patel dominated village is 5,000, of which Muslims number 1,100. Women were also involved in milching cattle, an occupation that is today unavailable to them as they do not have access to buffaloes that were either stolen or driven away. The mosque in Por, which was systematically pulled down using a bulldozer belonging to the municipal corporation, has however been re-built. While some of the village elders such as Nathubhai Nagar are trying to break the social boycott, others insist that for Muslims, the quid pro quo for leading a normal life will be their withdrawal of the pending criminal case where 35 villagers have been accused of rioting and arson. With the survivors adamant on getting justice, (senior advocate Allah Rakha is appearing for the victims), the deadlock, stealthily, continues.”

Economic boycott is also manifested in temple fairs where non-hindus are not allowed to set up stalls. Such instances are rampant in many districts of Karnataka. In March last year, Bharatiya Janata Party (BJP) general secretary Chikkamagaravalli Thimme Gowda Raavu a.k.a CT Ravi had said, “Halal is an economic Jehad. It means that it is used like a Jehad so that Muslims should not do business with others. It has been imposed. When they think that Halal meat should be used, what is wrong in saying that it should not be used?” 

A right wing leader emerging from Uttarakhand, Radha Semwal Dhoni had , last month, recorded a video where she pointed cameras at Muslim vendors and asked them their names and their Aadhar card as well. She claims that they represent themselves as Hindus and that they have come from Lucknow. In the video she says that the vendors lie and spit on the vegetables and sell these in her area (where she lives). She asks them, “why do you come here? Why don’t you carry an Aadhar card? Do you want to sell us vegetables that have been spat on?” to this, one of the vendors says, “it’s not true, we are not spitting on vegetables”.

Articles 21, 14 and 15 are all guarantees that every person has the right to life, equality and non-discrimination. Article 19 ensures freedom of movement and the right to undertake economic activity. While Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, Article 15 prohibits discrimination on grounds only of religion, race, caste, sex, place of birth. Further under article 15(2), no citizen shall be subject to any restriction or condition with regards to access to shops or the used of roads and places of public resort maintained out of state funds or made for the use of general public, merely on the basis of religion, race, caste, sex, place of birth or any of them.

Despite such constitutional safeguards, people are giving such calls for economic boycotts against the minority communities. This is a brazen move to push the minorities to economic deprivation and social ostracization to a point where they will be compelled to live in poverty or flee the country fearing further deprivation and persecution; either of which is the worst outcome for the communities.

Related:

Marginalising the already marginalised: Economic Boycott Targeting Muslims

Are increasing calls for economic boycott of Muslims a sinister precursor to something worse?

Hate Watch: Indians reject #BoycottMuslims call

The post Oath for economic boycott of minorities administered in Chhattisgarh appeared first on SabrangIndia.

Bihar reported several instances of attacks on Muslims, destruction of their property, looting of homes, destruction of a mosque and a madrassa as well during Ram Navami celebrations and even after. Oit has been reported that in the Mochi Tola area of Sasaram, Bihar, a bomb-like explosion was heard but the police could not confirm if it was a fire-cracker or an actual bomb. At least 43 people have been arrested and residents have claimed that they have heard chants of ‘Jai shree Ram’ all around. On Saturday, 5 people were injured after a bomb blast in Sasaram and the police denied any communal angle to it.

Since last year there is an uncomfortable wariness when one comes to know that a religious procession is being organized. It is likely that such processions will end up in “clashes” between two communities. The common thread in all these “clashes” is that stones were pelted, some police personnel were injured and some slogans raised, while the victim is always the minority community. The narrative usually revolves around, why did the minority community pelt stones in the first place, they are the ones who instigated the crowd and the resultant violence ensued.

In Bihar Sharif, 110 year old Madrassa Aziza in Nalanda district of Bihar was burnt down by a Hindutva mob due to which 4,500 books were reduced to ashes. The mob threw petrol bombs into the mosque while chanting ‘Jai Shree Ram’.

What was burnt down along with the books was the legacy of the institution which was established by Bibi Sogra, a well known philanthropist, in memory of her husband, Abdul Aziz. The attacks took place in the afternoon, in broad daylight, however, the police reached the spot at 11 pm, reported Maktoob media. The caretaker of the madrassa told the publication that the library had really old and rare books including Tafsirs of the Holy Quran.

On March 31, Madrasa Azizia was set ablaze by Hindutva mob during Ram Navami violence in Biharsharif, Nalanda, Bihar. At Madrasa, there were about 4500 books. pic.twitter.com/3kT4ajsswD

— Meer Faisal (@meerfaisal01) April 1, 2023

There were disturbing visuals of the mosque burning in flames nas young men with saffron bands tied around the foreheads look on:

A mosque was set on fire by Hindutva extremists during Ram Navami violence in Bihar Sharif, Bihar. pic.twitter.com/FwYRzcpWeS

— Md Asif Khan‏‎‎‎‎‎‎ (@imMAK02) March 31, 2023

There is also a video showing Hindutva mob climbing atop the mosque and waving saffron flag.

Hindutva mob climbed atop mosque, waved saffron flag before vandalising it in Bihar Sharif, Bihar. https://t.co/OFwPu8VxGl pic.twitter.com/x38ZN7kE7N

— Md Asif Khan‏‎‎‎‎‎‎ (@imMAK02) March 31, 2023

“We had just finished Friday prayers when violence erupted at Gagan Diwan locality near Hotel City Palace. A mob then entered the madrasa and started hurling stones. A member of the mosque’s peace committee was threatened and forced to chant ‘Jai Shri Ram’. They threw petrol bombs into the mosque and the library, and set vehicles parked on the premises on fire,” Mohd Siyabuddin, the Imam of the mosque, told The Hindu. He added that two children were also trapped in the room and had they not reached there on time, they could have died. The madrasa, spread over six acres with 450 students, was closed for Ramzan, but the miscreants entered the campus by breaking the lock, reported The Hindu.

Historical Madrasa Azizia was burned down by Hindutva mob during Ram Navami violence in Bihar Sharif.

More than 4500 books reduced to ashes.

? : @meerfaisal01 pic.twitter.com/PhUWNPSOb1

— Md Asif Khan‏‎‎‎‎‎‎ (@imMAK02) April 2, 2023

Further, in Sasaram a Hindutva mob allegedly looted and burnt houses of Muslims and a victim claimed that 50 police personnel were present when this happened. The police allegedly asked the victims to leave their burning homes and run. While speaking to local news channel Bihar Tak, Sajjad was distraught and said that he was simply a laborer and looted and burnt down his house as the police watched.

House of Sajjad Looted, and brunt by the Hindutva Mobs in Sasaram, Bihar.
Sajjad said_
“Everything was Looted, and torched, I am poor this is the only Asset I had, which all is destroyed now I am labour, around 50 Police officers were their , but no FIR about this has been taken pic.twitter.com/khjpgsRKaV

— Noor Mahvish (@TheNoorMahvish) April 2, 2023

In Munger, offensive slogans were raised by Hindutva mobs riding on bikes as they were riding through a Muslim locality. They raised slogans of Jai Shree Ram and also “Jai Shri Ram Bolo, Miya Ko Kato. Jai Shri Ram Bolo Miya ki Topi Utaro”.  A resident while speaking to a media person said that even the BJP MLA of Munger, Pranav Yadav was riding on one of these bikes as they were brandishing swords and were hitting shops with these swords on their way. He said there were more than 100 bikes that went through the area on Friday.

Location: Munger, Bihar

During the Ram Navami procession, extremists entered a Muslim locality, brandishing swords and shouting hateful slogans with blatant calls for violence: “Jai Shri Ram Bolo, Miya Ko Kato. Jai Shri Ram Bolo Miya ki Topi Utaro”.

Note: Miya is an… pic.twitter.com/uMUUDZzxp2

— HindutvaWatch (@HindutvaWatchIn) March 31, 2023

A reportage from The Observer Post showed women from Bihar Sharif alleging that the police misbehaved with them and took away their valuables from their homes. She said that at night they came and held women’s hands, molested them and looted their valuables, jewellery. She said that the men were chased away and curfew was imposed so just women were left at home alone. She said they abused them and used demeaning slurs. Another woman said that a policeman entered their home forcibly and took her son away and when they said they were keeping Roza and they should avoid this commotion, the boy was taken away by the police, while the policeman abused the elderly woman. They took all those without seeing who is innocent and who is not. Another older woman said that the police broke the locks of homes and looted them taking away all money, valuables etc.

Muslim women of Bihar Sharif complain of misbehaviour by the police, who entered their houses and took away their valuables. “Police took away men and forcibly entered our house,” they claim.
“They snatched duppatas and earrings from the ladies,” she added. @meerfaisal01 report pic.twitter.com/tWmgiMzSWe

— Meer Faisal (@meerfaisal01) April 3, 2023

Related:

Aaj Tak’s coverage of Ram Navami violence questions mainstream portrayal of Hindu-Muslim divide

Hindutva’s role in riots and official complicity

What was CJP’s PIL seeking directions for implementation of law for regulation of religious processions all about?

Ram Navami: West Bengal administration on alert as 2000 celebrations planned

Police to closely monitor Ram Navami processions in Hyderabad and Mumbai

The post Hindutva mobs in Bihar run amok, cause loss of Rs. 6 crores appeared first on SabrangIndia.

Delhi Police denied permission for ‘Shree Ram Bhagwan Pratima Yatra’ on Ram Navami proposed for March 30 in Jahangirpuri. The DCP, North west Delhi responded to a request seeking permission for the same and denied the permission citing law and order issues.

Why could there be a law and order situation?

Communal clashes allegedly broke out during a procession in northwest Delhi’s Jahangirpuri area on April 16, 2022. Violence broke out in the area when a religious procession of the majority community made its way past a mosque on the occasion of Hanuman Jayanti. Nine people, including eight police personnel, were injured during the violence. It is alleged that procession participants allegedly chanted abusive slogans, entered a mosque during namaz and tried to plant a saffron flag inside.

The violence was followed by an “anti-encroachment drive” in the area. The local civic body, which is run by the Bharatiya Janata Party (BJP), said the drive was launched to clear illegal constructions in the area. But Muslims say their properties were disproportionately targeted and they also questioned the timing of the drive, which continued for an hour after the Supreme Court gave an interim order to stop it.

What happened in the Jahangirpuri violence case?

Further, in a chargesheet filed on July 14 and July 28, 2022, before the court of the Chief Metropolitan Magistrate in Rohini, the Crime Branch of the Delhi Police have confirmed that members of the Shobha Yatra passing through Jahangirpuri on Hanuman Jayanti were indeed armed.

In the chargesheet it was further stated that the accused (attackers) were active on a Whatsapp group where they shared “hate speech messages against the other community/religion”, and that the group was called “Kabutar Sell Group”. Police named Tabrez Ansari as the main accused in the case. The chargesheet names 37 people who were arrested.

Charges have been filed under Section 307 (attempt to murder), Section 120 B (criminal conspiracy), Section 34 (Acts done by several persons in furtherance of common intention), Section 186 IPC (voluntarily obstructs any public servant in the discharge of his public functions), Section 353 (Assault or criminal force to deter public servant from discharge of his duty) Section 332 (Voluntarily causing hurt to deter public servant from his duty), Section 323 (punishment for voluntarily causing hurt) Section 436 (Mischief by fire or explosive substance with intent to destroy house) Section 147 (Punishment for rioting) Section 148 (Rioting, armed with a deadly weapon) Section 149 (Every member of unlawful assembly guilty of the offence committed in prosecution of common object) and Section 427 (Mischief causing damage) of the Indian Penal Code(IPC) and under various provisions of Arms Act.

Sessions judge had pulled up Delhi Police

The Court of Additional Sessions Judge Gagandeep Singh in May 2022 held that prima facie the case reflected that the local staff of the Jahangirpuri police station, led by inspector Rajiv Ranjan as well as other officials, were accompanying the allegedly illegal procession on its route, instead of stopping it.

The police even admitted that the procession had no permission from the police.

The Sessions judge had observed that the riot was a result of the failure of police officials in preventing the riots and noted, “It reflects the utter failure on the part of local police in stopping the said procession having no permission. The issue seems to have been simply brushed aside by the senior officers. The liability on the part of the concerned officials needs to be fixed so that in future no such incident takes place and the police is not complacent in preventing the illegal activities.”

Clearly, the Delhi Police was openly called out by the Sessions Judge for not doing their job and instead accompanying the illegal procession that had no permission from the Police. To avoid any such lapse from their part, the north-west Delhi police has, this year, decided to act in the interest of law and order.

Related:

 Jahangirpuri demolition drive: Brinda Karat walks the talk yet again!

Eye witness account from the broken heart of Jahangirpuri

Jahangirpuri: Navika Kumar, Anjana Om Kashyap demolish media credibility further

SC orders status quo on demolitions in Jahangirpuri

Jahangirpuri: Hindu, Muslim citizens take out peace march holding Tricolour

The post Why did Delhi Police deny permission for Ram Navami procession in Jahangirpuri? appeared first on SabrangIndia.

What is this sealed cover business? Why would the governments, union or state, or their agencies of law enforcement, desire to make submissions to Courts in sealed envelopes? Such secretive sealed cover procedures have been in operation in not just in Supreme Court but courts at all four levels of the judicial hierarchy, becoming a rather entrenched undemocratic practice. Within a democracy, ensuring that the state has a position and stature at a more dominant level that the people, ordinary citizens, even those challenging arbitrary unconstitutional acts –including the breakdown of law and order – within courts. It is only very recently that the Supreme Court has refused to accept them, that too in some cases!

On March 20, 2023, present Chief Justice of India (CJI) Chandrachud categorically refused to accept sealed cover submissions from the government while hearing a matter relating to disbursal of arrears to retired defence personnel under the One Rank One Pension (OROP) scheme. The CJI declared that he was completely against sealed covers as they are against judicial principles. “It can be resorted to only when it is about a source or endangering someone’s life,” he said.

Significantly, in February 2023, in a major reversal of the SC’s decades-old practice relating to sealed cover material given by the government and probe agencies, (starting with Bofors case accused Ottavio Quattrocchi’s defreezing of London bank accounts to probes into 2G and coal scams) the CJI-Chandrachud led bench refused to accept names of experts given by the Centre for inclusion in the committee to probe the recent diversion of LIC funds to the Gautam Adani group by the Modi 2.0 government. The words used were telling. The bench said, “We will not accept sealed cover suggested names from you (the Centre). We will tell you why. In constituting a committee, we want to maintain full transparency. The moment we accept a set of suggestions from you in sealed cover, it would mean that the other side (petitioners) have not seen it. Even if we do not accept your suggestions, they would not know which of your suggestions we accepted and which we have not. Then, there will be an impression that, well, this is a government appointed committee which the SC has accepted, even when we do not accept your suggestions.” The CJI-led bench further said, “We want to maintain the fullest transparency in the interest of protecting the interest of investors. So, we will appoint a committee on our own, which might be all together better as that would promote a sense of confidence in the process.”
Ironically, not so long ago, in December 2022, a bench headed by Justice SA Nazeer and comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna directed the Union government and Reserve Bank of India to place before “it in a sealed cover”, records pertaining to the government’s decision in 2016 to demonetise currency notes of Rs. 1,000 and Rs. 500. Ultimately, the court, in a majority judgement found no flaw in the demonitisation process, even though Justice Nagarathna was the sole dissenting judge calling the process unlawful. At the conclusion of the much-delayed judicial process in this case (challenges to demonitisation were pending since late 2016), the people of India, sovereign under the Constitution have been left in the dark about the process that led to a sudden decision by the present prime minister, Narendra Modi, moreover one that seriously damaged the economy, of both individuals and the country.

Procedural and substantive justice, hand in hand ensure justice delivery. One without the other, or partial practices that undermine both categories have seriously affected the Indian quality of jurisprudence. Here, we delve deep into the politics and practice behind the “sealed cover”, something that amounts to a pact of underlying secrecy between the judiciary and the excecutive, leaving the people of India, or litigants on the opposing deprived of the charmed circle of understanding what and who makes government decisions and why.

Former CJI NV Ramana was also visibly irked by the concept of sealed covers in March last year, 2022, when it was dealing with a case where the Bihar government was a party, he said, “Please don’t give us a sealed cover, we don’t want it here.” On the same day, Justice DY Chandrachud also deprecated the sealed cover practice from the Union government while hearing a case against the government’s ban on the Malayalam TV Channel, MediaOne. The Kerala High Court had upheld the ban against the channel relying on documents submitted by the Centre in a sealed envelope. The Supreme Court thereafter stayed the ban.

Ironically, however, former CJI, Justice Ramana himself, in August 2022, decided to keep reports of the Pegasus technical Committee as well as the report of Justice RV Raveendran, who was supervising the Committee, in a sealed cover “for the time being”. Reasoning? Justice Ramana had stated however in open court that the reports will be uploaded on the court’s website after necessary redaction. Something changed, however. The order of the court, finally, after a hearing on August 25, 2022 said that the reports have been re-sealed and kept in safe custody of the Secretary General of the court. It is this archival vault that holds answers to many issues raised by citizens while questioning the executive.

Today, while CJI Chandrachud, in some cases at least, appears to be vocally opposing sealed covers and refusing to accept them as a norm, he himself was part of a bench, led by Justice Deepak Misra in 2018, which accepted Maharashtra government’s submissions in “sealed cover”, when it was considering the plea for stay on arrests of the five accused in the Bhima Koregaon case.

Is there a need to maintain secrecy in the first place when it comes to making submissions before a court of law? Especially when crucial issues of state accountability and transparency to the people (de-monetisation), state policies, fundamental rights to life and freedoms (incarceration of individuals and groups) are in question?

In the recent matter, where the Supreme Court spoke unequivocally against this, the grievance of the appellant before the Supreme Court was that the Armed Forces Tribunal had adjudicated upon the matter of Permanent Commission for women in the Armed Forces by receiving records about vacancy in a sealed cover. The AFT dismissed the applications challenging the denial of Permanent Commission in the Indian Navy. The bench of Justice DY Chandrachud and Justice and Hima Kohli said in its judgement,

“non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent.” (Para 28)

“The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque.” (Para 28)

The disclosure in a sealed cover perpetuates two problems.

1. it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover (Para 28)

2. it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information (Para 28)

“The sealed cover practice places the process by which the decision is arrived beyond scrutiny.” (Para 28)

The judgement, however, also maintained that there are certain pieces of information that may not be revealed in the course of a case.

“Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm.” (Para 28)

Which laws allow the sealed cover?

The provisions of law that have permitted sealed cover jurisprudence are now discussed here.

The section 123 of the Indian Evidence Act states as follows:

123. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Section 162 of the Evidence Act deals with production of documents and empowers the court to inspect any document produced before it “unless it refers to matters of State”. This clearly allows the state to claim privilege over a document it has been asked to produce.

Order XIII Rule 7 of the Supreme Court Rules, 2013, states:

Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court.

It is important to note that these Rules of the Supreme Court are formulated under Article 145 of the Indian Constitution which states that the Rules are to be “Subject to the provisions of any law made by Parliament”. Keeping this in view, one needs to then look at the Code of Criminal Procedure, which provides for “Open Court” under section 327.

Section 327 of the CrPC states that

[(1)] The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.

At the same time, the court is bestowed discretionary powers to bar public access to court at any stage of the hearing/trial. This also gives legal sanction to the sealed cover practice.

Thus, the law allows the practice of sealed covers, subject to the discretion of the court.

When have courts readily accepted sealed covers?

Gujarat Communal Violence case, 2006 onwards: In March 2006, the Supreme Court appointed a Special Investigation Team (SIT) to re-investigate/further investigate ten crucial 2002 carnage cases related to the violence in 2002 in Gujarat. The order in the ongoing National Human Rights Commission v/s state of Gujarat cases wherein Citizens for Justice & Peace (CJP) is an intervener actually came on an independent petition filed by independent citizens against the state of Gujarat (May 2002) demanding a transfer of investigation to the Central Bureau of Investigation (CBI). CJP was the driving force behind this petition, filing submissions, providing ground level data and even in 2009-2010 challenging the questionable functioning of the SC-appointed SIT itself. Though an active citizens legal rights group representing survivors of the violence, the litigants were throughout this process that was an attempt to secure substantive justice (ongoing) disadvantaged as bench after bench of the Supreme Court permitted the SIT to make submissions in sealed covers. This crucially disadvantaged the entire legal process in balance, favouring a state government whose actions in the serious constitutional breakdown of law and order were under challenge.

There have certainly been several such instances where courts have readily accepted sealed covers as an accepted norm. The Delhi High Court, in a copyright violation case, accepted Telegram’s sealed cover wherein it disclosed details of channels, including their mobile numbers and IP addresses, whereby these channels were allegedly sharing teaching materials created by the petitioner.

In May 2022, a local court in Varanasi accepted the report of filming of the Gyanvapi mosque in a sealed cover. Given that this entire dispute has been fostered by the politically powerful and dominant right wing, and the right to faith and life of minorities is at stake, this de-privileged an already marginalised minority. A chip with videos and photographs of the filming were in the sealed cover. The three premises of the Gyanvapi mosque were filmed after a petition was filed by 5 Hindu women that they should be allowed access to the mosque to worship idols on its outer walls.

In the period when Justice Ranjan Gogoi was CJI (Gogoi, after the completion of his term on November 17, 2019 was appointed by the ruling party to the Rajya Sabha less than six months after, on February 16, 2020) he frequently accepted –and therefore put the judicial seal of approval on the procedure, accepting “sealed covers”. For example, while hearing the case pertaining to the Rafale aircraft. In the Rafale case judgement delivered in December 2018, the court dismissed a batch of petitions, seeking a probe into the present, Narendra Modi government’s decision to buy 36 Rafale aircraft in April 2015. In October 2018, the bench led by then CJI, Justice Gogoi asked for the details of decision making process that went on in concluding Rafale deal “in a sealed cover” and said that the government need not include issues related to pricing or suitability of the fighter jet. The bench did not even issue notice, it wanted to see the details in the sealed cover first! A redacted version of the sealed cover report was shared with the petitioners which included details on the choice of India offset partners by Dassault.

Justice Gogoi also actively encouraged submissions of “sealed covers” in another substantial case, whereby it was monitoring the National Rgeister of Citizens (NRC) process in Assam that he heard for several years. Gogoi, hailing from Assam, presided over the bench that oversaw a controversial and difficult process for over four years, at least. This court had, in 2018, directed the then NRC co-ordinator, Prateek Hajela to submit data of the district wise percentage of population which was excluded from draft NRC, in a sealed envelope.

Interestingly, in 2018 when the Supreme Court refused to stay the arrest of five accused in the Bhima Koregaon case, they accepted the Maharashtra government’s submissions in a sealed cover (as mentioned above).

In a case involving corruption charges against the Director of the Central Bureau of Investigation (CBI) Alok Varma too, the court, in 2018, resorted to the sealed cover practice justifying the same by stating that it was necessary since it wished to maintain public confidence in the agency and to maintain the sanctity of CBI. Basically, the allegations against Varma were presented in sealed cover by the Central vigilance Commission (CVC) and the response to the allegations was also given in a sealed cover by Varma, as directed by the court! This was as good as an in-camera proceeding depriving the wider citizenry that is often the vicarious victim of criminalisation of actions given that the agency reports directly to the Prime Minister’s Office (PMO). A measure of transparency into its modes, methods and motives of functioning would hold power accountable but the highest court in the land has not really allowed that to happen.

In the 2G case as well (Ratan Tata v Union of India [WP(C) No, 398 of 2010]), the Union government, CBI and Income tax Department produced several sealed covers before the court, including those indicating status of investigation. The document containing investigation reports in Nira Radia Group case was kept in sealed cover as well. These submissions, including transcripts of the tape, investigations reports, were made before the Supreme Court from 2010 onwards. Even transcriptions of the infamous ‘Nira Radia tapes’ were presented in 48 sealed envelopes to the court. In September last year, the CBI told the Supreme Court that it found no criminality in the taped conversations.

Conclusion

What can be deduced after looking at the legal provisions as well as the jurisprudence related to sealed cover is that the law allows it –an essentially non transparent practice– and the courts allowed and even propagated its use, consistently. In many cases, it seems to have been done simply to shield powerful forces, owing to the high positions they held at the time.

Present CJI DY Chandrachud has pointed out that such a maintenance of secrecy is paramount only in exceptional cases like protecting the identity of sexual assault victims and that non-disclosure should be proportionate to the purpose that the non-disclosure seeks to serve.

This all boiled down then to the discretion of the court, be it under the Supreme Court Rules or the CrPC, or even the Evidence Act, where the latter applies to lower courts during trial of criminal matters.

Is serious about the rampant use which lawmakers have consistently held to be a “necessary evil”, the Supreme Court itself can include some proviso under the Supreme Court Rules to curb or  control the indiscriminate application of this practice of sealed covers in its court. The CrPC, however whoever would need legislative intervention to amend the provisions. While, the Indian Evidence Act does not expressly mention sealed covers, as the Supreme Court Rules, 2013, does, the same is implied under section 162 of the Act where “matters of the state” are given protective privilege from disclosure.

So, if the apex court is serious to end this opaque and widely applied practice, change must begin at home, for the lower courts, then hopefully, to follow suit.

Related:

Do journalistic sources need protection?

Gyanvapi case: AIM finally gets copy of survey report

State-sponsored Doxing: Is it even legal?

Pegasus case: SC appointed Committee says GoI not cooperating

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