In the past one and half year constitutional courts have ruled inconsistently over the interpretation of important provisions under PMLA, specifically regarding Section 45 and Section 19 of the law. Due to its stringent bail conditions, PMLA is often compared with draconian Unlawful Activities (Prevention) Act, 1967.

Section 45 of the PMLA states that no person accused of an offence under the said Act shall be released on bail or on his own bond unless— “(i) the Public Prosecutor has been given the opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail…” (Known as twin conditions).

Section 19 of the PMLA provides that “(1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.”

“(2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed.”

The analysis of the court judgements reveal that judges have used varied interpretations to grant or reject bail applications of the accused, citing reasons ranging from “seriousness of offences” to “broad probability” and from procedural technicalities to constitutional safeguards.

Relevant judgements in 2023-24

Directorate of Enforcement vs. Aditya Tripathi (Criminal Appeal No. 1402 of 2023)

In this case ED had moved an application to the Supreme Court, appealing against the order of the Telangana High Court which had granted bail to the respondent Aditya Tripathi in the case of PMLA. The Telangana High Court had reasoned that since the chargesheet had been filed and investigation in the predicate offences was complete, the investigation should be deemed complete, and once the investigation is complete the possibility of tempering with the evidence or influencing witnesses is unlikely.

Tripathi was booked under Sections 120-B (criminal conspiracy), 420 (cheating), 468 (forgery) and 471 (fudging) of the Indian Penal Code (IPC) and Section 7 read with Section 13(2) of the Prevention of the Corruption Act (PC). ED had found that e-tenders for total works amounting to Rs. 1769.00 crores of Madhya Pradesh Water Corporation were tempered to change the price bid of M/s GVPR Engineers Limited, M/s The Indian Hume Pipe Company Limited and M/s IMC Project India Limited to make them the lowest bidders.

The Supreme Court bench of Justices M R Shah and C T Ravikumar delivered its verdict on May 12, 2023, setting aside the Telangana High Court judgment which had granted bail to the accused Aditya Tripathi in the PMLA case. Delivering the judgement for the bench, Justice M R Shah noted that “enquiry/investigation” is still going on by the Enforcement Directorate for the scheduled offences in the case and once the enquiry/investigation against the accused is ongoing, the rigour of Section 45 (twin conditions) of the PMLA is required to be considered. Justice Shah said that the High Court did not consider the “nature of allegations”, “rigour of Section 45” of PMLA, and “seriousness of the offences alleged of money laundering” and the offences under the PMLA. The judgment also noted that merely because other accused are discharged/acquitted, it cannot be a ground not to continue the investigation in respect of the present accused.

Importantly, as it overturned the Telangana High Court ruling, the bench maintained that “it appears that what is weighed with the High Court is that chargesheet has been filed against respective respondent No. 1 – accused and therefore, the investigation is completed. However, the High Court has failed to notice and appreciate that the investigation with respect to the scheduled offences under the PML Act, 2002 by the Enforcement Directorate is still going on. Merely because, for the predicated offences the chargesheet might have been filed it cannot be a ground to release the accused on bail in connection with the scheduled offences under the PML Act, 2002. Investigation for the predicated offences and the investigation by the Enforcement Directorate for the scheduled offences under the PML Act are different and distinct. Therefore, the High Court has taken into consideration the irrelevant consideration.”

The relevant judgement may be read here:

Vijay Agrawal through Parokar vs. Directorate of Enforcement (Bail Application no. 1762/2022)

The case against Indore-based builder Vijay Agrawal was registered by the ED under PMLA and the builder was accused of being a conduit in a series of Hawala transactions, obtaining loans from the shell companies, fraudulently transferring shares of the company and engaging in land development with the purpose of whitewashing the money and properties obtained through illegal and fraudulent means. The accusations against Agrawal were linked with the co-accused Bimal Jain, who was accused of rotating funds approximately to the tune of Rs. 96,000 crores for providing accommodation entries of approximately Rs. 18,679 Crores to 973 beneficiaries. Specific accusations against Agarwal noted that he acquired 50% shares of the company belonging to main accused persons at a price of Rs.5lakh, the actual valuation of which was Rs.18 crores and therefore, the petitioner was in receipt of proceeds of crime in the sum of Rs.17,95,00,000/; the second allegation alleged that he acquired certain loans from the shell companies; and thirdly, the proceeds of crime was laundered through M/s R.C. Warehousing where he was in a managerial position. Agarwal in his defence had claimed that he did not knew that the money which were transferred, allegedly for performing business obligations, were derived through the proceeds of crime and therefore he cannot be held guilty under the Act.

In the judgement delivered on May 29, 2023, the Delhi High Court judge Dinesh Kumar Sharma granted bail to the accused on the basis of “broad probability” in the favour of the accused. In his verdict Justice Sharma said that “despite the twin conditions, the court cannot return any finding merely on the basis of inferences and presumptions.” Citing the landmark Vijay Madanlal Choudhary judgement, which had practically given unbridled powers to the ED, the judge noted that “even at the stage of bail, the court is expected to consider the question from the angle as to whether the accused possessed the requisite mens rea.” After considering the submission of Agrawal that he has till date not received any money rather, has given a security of Rs.21 lakhs, Justice Sharma said “his plea that he did not know that he is dealing with the tainted money cannot be brushed aside mechanically. The evidentiary value of the statement recorded under Section 50 of PMLA has to be tested at the end of the trial and not at the stage of bail. The twin conditions of Section 45 do not put an absolute restrain on the grant of bail or require a positive finding qua guilt.” The verdict also noted that since the purpose of evidence cannot be meticulously examined at this stage, “the Court cannot merely proceed on the basis of assumption. There has to be some substantial link between the money received and criminal activity relating to scheduled offence which can be attributed to the petitioner.”

Thus, the bail was granted on the basis of the principle of broad probabilities and as the accused was seen fulfilling three bail conditions, namely, (lack of) possibility of tampering with evidence and cooperation with the investigative agency, flight risk, and deep root to society.

The relevant judgement may be read here: 

Pankaj Bansal vs. Union of India (Criminal Appeal Nos 3051-3052 of 2023)

While the Pankaj Bansal judgement is on the legality of arrest under Section 19 of the PMLA rather than on the question of bail per se, it became one of the most cited judgements to argue in favour of the accused, often to highlight the illegality of the arrest and seek recourse to constitutional remedy.

The judgement delivered by the bench of AS Bopanna and Sanjay Kumar on October 3, 2023, the court said that “to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception.” Initially, it was in the case of V. Senthil Balaji vs. The State represented by Deputy Director and others that the court emphasised on providing the grounds of arrest to the accused booked under PMLA, but it was Pankaj Bansal judgement that developed the jurisprudence and added more weight and clarity to the legality of the arrest.

In the present case, the accused was merely informed of his grounds of arrest, which itself remains contested claim, without providing him the copy of the grounds of arrest. The verdict said that “ED’s Investigating Officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is also disputed by the appellants. As this form of communication is not found to be adequate to fulfil compliance with the mandate of Article 22(1) of the Constitution and Section 19(1) of the Act of 2002, we have no hesitation in holding that their arrest was not in keeping with the provisions of Section 19(1) of the Act of 2002.” Thus, the apex court set aside the previous orders of the Division Bench of the Punjab and Haryana High Court, Additional Sessions Judge (Panchkula), arrest orders and arrest memos, and ordered the release of the petitioners.

Notably, the review petition filed by ED against the judgment was dismissed by the Supreme Court on March 20, 2024.

The relevant judgement may be read here:

The order dismissing the review petition can be read here:

Ram Kishor Arora vs. Directorate of Enforcement (Criminal Appeal No. 3865 of 2023)

In this case, the accused had moved to the apex court, arguing that his arrest was illegal as he was not provided the copy of the grounds of arrest at the time of his arrest. In the verdict delivered on December 15, 2023 by the bench of Justices Bela Trivedi and Satish Chandra Sharma, the court refused to grant relieve to the petitioner. The petitioner in the case, Ram Kishor Arora, alleged that his was “illegal and violative of the fundamental rights guaranteed to the appellant under Articles 14, 20 and 21 of the Constitution of India”. As per the facts of the case, ED had handed over the document containing the grounds of the arrest to Arora and took it back after obtaining his endorsement and signature, as a token of him having read the same, without furnishing a copy the document to Arora at the time of arrest. The petitioner relied on Pankaj Bansal judgement to argue that his arrest was illegal as he was not given the copy of the grounds of arrest but was merely allowed to read the grounds from the document without getting a copy of the same. The Enforcement Directorate (ED) countered the argument and said that the ratio of Pankaj Bansal would not apply to the case at hand as the accused was provided the document to read the grounds of arrest and his signature was taken on the document as a proof that he had read the grounds of arrest, irrespective of the fact that he was not provided the copy of the document.

Justice Trivedi in her verdict said that “the expression “as soon as may be” contained in Section 19 of PMLA is required to be construed as- “as early as possible without avoidable delay” or “within reasonably convenient” or “reasonably requisite” period of time.” The expression “as soon as may be” was interpreted by the bench to mean twenty-four hours of the arrest. Relying on Vijay Madanlal Choudhary, the bench held that “it has been categorically held that so long as the person has been informed about the grounds of his arrest that is sufficient compliance of mandate of Article 22(1) of the Constitution.” The verdict also said that the word “henceforth” in Pankaj Bansal judgement implied that “requirement of furnishing grounds of arrest in writing to the arrested person as soon as after his arrest was not the mandatory or obligatory till the date of the said judgment.” Furthermore, citing the rule of precedent, the bench critiqued Pankaj Bansal judgement delivered by the two-judge bench, noting that “any observation made…by the Division Bench of lesser number of Judges contrary to the said ratio laid down in Vijay Madanlal Choudhary (supra) would be not in consonance with the jurisprudential wisdom…” The bench disposed of the petition recording that “we hold that there was due compliance of the provisions contained in Section 19 of PMLA and his arrest could neither be said to be violative of the said provision nor of Article 22(1) of the Constitution of India.”

The relevant judgement may be read here:

Prem Prakash vs. Union of India (Special Leave to Appeal (Crl.) No(s). 691/2023)

In this case, the petitioner Prem Prakash had approached the apex court pleading for his release on bail as he was charged under PMLA and put behind bars as an undertrial prisoner for more than a year and half. While no specific judgment has been delivered in this case, the apex court in its March 20, 2024 order observed that it will examine whether the petitioner should be granted interim bail as he has been in custody for over eighteen months. The order holds significance as the SC recognises long incarceration as one of the potential grounds for granting bail to the accused charged under stringent PMLA law.

The relevant judgement may be read here:

Sanjay Singh vs. Directorate of Enforcement (Crl.A.@SLP(Crl.) 2558/2024)

On April 2, 2024, the Supreme Court bench of Justices Sanjiv Khanna, Dipankar Datta and P B Varale passed an order granting bail to Aam Aadmi Party leader Sanjay Singh who was booked under PMLA in the case of alleged excise policy scam. As the bench passed the order granting bail, it noted that no illegal money has been recovered from Sanjay Singh, there is no money trail to link him to any proceeds of crime, and the investigative agency ED has not opposed his bail plea, as its reasons for granting bail to the accused. Notably, the bench had asked ED, “He has been in custody for six months. We need to know if further custody is required or not”. ED in its response said that the custody was no longer required, without arguing the case on merits. The ED in this case is understood to have made a strategic move by not opposing the bail plea of Sanjay Singh, as the Section 45 of PMLA relating to bail provision states that when granting a bail “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail…”.

The relevant judgement may be read here:

Tarsem Lal vs. Directorate of Enforcement (Jalandhar Zonal Office) (Criminal Appeal No.2608 of 2024)

The latest judgement by the Supreme Court in the case of Tarsem Lal provides a significant relief to accused under PMLA, as the court ruled that the accused need not meet the strict criteria for bail under Section 45 of the PMLA when they voluntarily appear before the special court following the ED complaint. In their verdict delivered on May 16, 2024, the bench of Justices Ujjal Bhuyan and AS Oka said that “After cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44 (1)(b), the ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint; and If the ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, the ED will have to seek custody of the accused by applying to the Special Court.” Furthermore, the verdict states that “After a summons is issued under Section 204 of the CrPC on taking cognizance of the offence punishable under Section 4 of the PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88 of the CrPC.”

The apex court in this case provided relief to the petitioner Tarsem Lal as it set aside the orders of the High Court of Punjab and Haryana declining his anticipatory bail and cancelled the warrants issued by the Special Courts against the accused.

The relevant judgement may be read here:

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The post Examining Jurisprudential Shifts: The Evolution of Bail Provisions Under PMLA – Part II” appeared first on SabrangIndia.

Explaining the concept of domicide, Fahad Zuberi in his Indian Express article notes that demolition can be “both constructive and destructive”, but domicide, on the other hand, “is the killing of home”. He continues, “A home is a living breathing ecosystem. It is built of memories, snippets of life’s milestones, and social interactions. Home is a promise of safety, a necessity for dignity and a matter of pride. Home is the place for a family to live and build a future, to aspire and dream…to rejoice in achievements and to mourn and grieve in loss…Home is the basis of identity, a requirement for state welfare, and even a qualifier to be counted by the state. Home is a place to exercise rights, to engage with others in privacy and dignity, the last bastion against societal stigma, and the last space where the right to privacy can materialise. Home, therefore, is alive and hence, home is not demolished. Home is killed.”

Such “killing of homes” in Delhi has been going on since long time, but the matter has exacerbated in the last few years, with significant increase in the number of people affected due to eviction drives in the city. In February this year, the Delhi Forest Department carried out demolition drive on the ‘forest land’ in Tughlakabad and Aya Nagar, ThePrint reported. The drive which began on February 27 and continued the next day, demolished around 25-30 houses. The forest department claimed to have recovered 1.5 hectares of forest land from the ‘illegal’ possession. Many of the residents were served the notices in the evening, and the next day in the morning JCBs started bulldozing their houses, some of them were not even present as their houses got demolished. A resident claimed that they have been living here for 15 years with all the legal documents including Aadhar and electricity bill, and questioned what the forest department was doing all these years?

The Times of India reported that the demolitions carried out over the couple of days in Tughlaqabad, Sangam Vihar, Neb Sarai and Ayanagar was in adherence with the direction issued by the National Green Tribunal (NGT) to free the encroached forest lands, following the NGT order in 2015 in the case of Sonya Ghosh v Govt of NCT and Others.

Similarly, on February 28, the Delhi Development Authority (DDA) carried out demolition in Khajuri Khas, bulldozing the house of Wakeel Hassan, the famous rat-hole miner who along with his team of fellow rathole miners had rescued the trapped labourers from the Silkyara tunnel in Uttarakhand in 2023. The family of Hassan allege that he was targeted because of his Muslim identity. As per the Indian Express report, Shri Ram Colony where Hassan lived featured among the list of unauthorised colonies, but Hassan was quoted as saying, “My house is unauthorised the way the entire colony is unauthorised. The whole exercise is to extort money from me.” He also alleged that no notice was served before razing his house. The demolition suggested that his house was particularly targeted even as some other houses in the colony remained unaffected. Ironically, DDA which was setup with the purpose of providing affordable housing to the economically weaker sections of the society has become of the leading agencies driving wholesale demolitions in the national capital to remove the encroachments and ‘illegal’ structures.

Throughout the month of January 2024, the Municipal Corporation of Delhi (MCD) reportedly carried out a total of 440 demolitions. MCD claimed that it recovered around 70 acres from these demolition activities removing “illegal structures”. The areas where it carried out its operation include Dera Mandi, Bhati, Said-ul-Azaib, Chattarpur, Burari, Jaitpur, and Narela. The same report noted that the zealous demolitions drives were resumed after the temporary ban was lifted on construction and demolition activities under the Graded Response Action Plan (GRAP). Notably, GRAP Stage III is invoked whenever the AQI index goes above 400, and during its stage III enforcement, all construction and demolition activities are completely banned to mitigate air pollution in the city.

On January 30, 2024, DDA demolished one mosque, four temples and 77 graves in Sanjay Van, which are were recorded as illegal structures in the protected Southern Ridge, Hindustan Times reported. DDA also demolished the historic Akhondji mosque as part this drive, which finds mention in Archaeological Survey of India’s (ASI) list under entry no 135, which recorded that the monument was repaired in 1853, much before Sanjay Van or DDA came up, contradicting the agency’s claim about its illegality. Notably, the agency also demolished the house of the grave digger Zakir Hussain in the process, leaving his family without any roof.

On December 21, 2023, MCD demolished around 300 houses near DPS Mathura Road in Nizamuddin, leaving the residents without any shelter in the biting cold of Delhi winters, Indian Express reported. Furthermore, the residents affected due to the demolition found no place in urban shelter homes run by the Delhi Urban Shelter Improvement Board (DUSIB), as the DUSIB run shelter homes refused them entry. A month before, on November 13, 2023, large number of Burari residents were reported protesting against the demolition orders sent by the Land and Building Department, affecting around 1000 families and 4800 individuals, Land Conflict Watch reported. In the same month, New Indian Express noted that the demolition drive carried out against alleged encroachments in a slum cluster near Sunder Nursery at Nizamuddin has rendered over 500 families homeless.

HLRN report notes that most evictions (58.7%) during 2022-23 were carried out under the category of slum clearance/anti-encroachment, followed by 35% of evictions under the category of infrastructure and ‘development’ projects. It further revealed that in “….at least 36 per cent of evictions in 2023 and 27 per cent of evictions in 2022, affected persons belonged to historically marginalized groups, including religious minorities, Adivasis/Scheduled Tribes, Dalits/Scheduled Castes, Other Backward Classes, as well as nomadic and indigenous communities, such as the Gadia Lohars.”

In the backdrop of G20 summit, which was hosted in New Delhi in 2023, thousands of poor residents were further rendered homeless, as the authorities zealously made efforts to clean up and beautify the city. As per the Down to Earth report, nearly 3 lakh residents were affected due to G20 preparations. “The Forced Evictions Across India and G20 Events” report prepared by the concerned citizens forum has said that “The demolitions in Tughlaqabad and Mehrauli are possibly linked to the heritage walks being planned for the G20 delegates. The Tughlaqabad demolitions, one of the biggest, have left more than 2,50,000 men, women and children displaced.” Outlook had reported that in April 2023 “close to 1,000 homes were razed in Tughlakabad claiming that the land belonged to the Archaeological Survey of India”. Similarly, it noted that 600 homes were razed in Moochand Basti, and further evictions were carried out in Mehrauli, Yamuna flood plains, and other areas of NCR region.  The Janta camp located at Pragati Maidan, the venue of G20 summit, and a slum cluster at Dhaula Quan were also demolished as the international delegation would traverse along that route. In June 2023, TheWire reported that 40 families were served notice to immediately vacate from the banks of the Yamuna, without specifying any deadline. As per the Quint, since March 2023, on the directives of the Delhi High, the DDA has carried out multiple demolition drives in the Yamuna floodplains. Reuters in its reportage on G20 induced demolitions in the national capital noted the response of the Union Minister of State for Housing and Urban Affairs Kaushal Kishore as saying that “At least 49 demolition drives in New Delhi between April 1 and July 27 led to nearly 230 acres (93 hectares) of government land being reclaimed”. The Quint on September 7, 2023, published an article citing the parliamentary response of the housing ministry and said that “as many as 13.5 million people live in unauthorised colonies in the national capital”.

Law, Policy and Politics

While most of these demolitions take place under the guise of lawful and legal enforcement to remove illegal structures from the city, the substantive question of rule of law remains unanswered. The courts on their part are seen increasingly reluctant to stop such demolition drives, and even on many occasions directing the agencies to remove ‘illegal’ encroachments. Thus, the agencies often cite court orders or directives as a response when asked about the evictions and demolitions activities, ignoring that on many occasions even a notice is not issued to the affected person before undertaking demolition.

The Delhi Urban Shelter Improvement Board (DUSIB) released the policy in 2015 which notes that in-situ rehabilitation in the form of alternative accommodation shall be provided “to those living in JJ of Bastis, either on the same land or in the vicinity within a radius 5 Km. In case of exceptional circumstances, it can be even beyond 5 Km with prior approval of the Board.” But this protective cover extends only to Bastis and Jhuggies that have come up before 2006 and 2015 respectively. The policy maintains that “JJ Bastis which have come up before 01.01.2006 shall not be removed (as per NCT of Delhi Laws (Special Provisions) Second Act, 2011) without providing them alternate housing. Jhuggis which have come up in such JJ Bastis before 01-01-2015 shall not be demolished without providing alternate housing…”. But the same policy also excludes any Basti or Jhuggi that has come up after the said cutoff dates, it notes, “GNCTD shall ensure that no new jhuggi comes up after 01-01- 2015. any jhuggi comes up after this date, the same shall immediately be removed without providing them any alternate housing.”

Importantly, DUSIB was setup as a response to the Supreme Court judgement in Sudama Singh and Others v. Govt. Of Delhi and Others, which ruled that in the context of the MPD (Master Plan for Delhi), “jhuggi dwellers are not to be treated as „secondary‟ citizens. They are entitled to no less an access to basic survival needs as any other citizen. It is the State‟s constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off. The relocation has to be a meaningful exercise consistent with the rights to life, livelihood and dignity of such jhuggi dweller.” The verdict further highlighted the need to undertake proper survey to record the jhuggis spread across the city and said that “…since most relocation schemes require proof of residence before a „cut-off date…If these documents are either forcefully snatched away or destroyed (and very often they are) then the jhuggi dweller is unable to establish entitlement to resettlement. Therefore, the exercise of conducting a survey has to be very carefully undertaken and with great deal of responsibility keeping in view the desperate need of the jhuggi dweller for an alternative accommodation.”

But this progressive judgement lost its force in the face of another Delhi High Court judgement delivered in 2022, which held that “only residents of 675 slums listed by the DUSIB and DDA were eligible for rehabilitation under the 2015 policy”, as per the Article 14 report. This verdict also affected another judgement on the Delhi High Court in Ajay Makan v. Union of India which had provided slum residents with constitutional protections from forced and unannounced evictions, Scroll reported. Furthermore, the aforementioned Article 14 report analysed the DUSIB Act and found that as per section 2(g) of the DUSIB Act, “a settlement may be considered a JJ basti only if it comprises at least 50 houses, making smaller slum colonies ineligible for rehabilitation even if residents meet other eligibility criteria.” Following these developments, courts have increasingly refused to intervene in matters of forceful or summary evictions by the public authorities, leaving the petitioners red-faced. Thus, as a result of these policy and legal developments, poor residents in the city find themselves without any strong constitutional or political recourse, with some lawyers and activists even arguing against going to courts in such cases.

Evictions and Elections 2024

As the Delhi votes on May 25 to send 7 MPs to the Lok Sabha, the lower house of the parliament, many who lost their homes in the demolition drives are disillusioned and lack trust in any political party. Speaking with Indian Express, Renu, a voter from South Delhi constituency, expressed her displeasure and said “When the bulldozer arrived, nobody came to help. Nobody stood with us… so, who will we vote for…We lost our belongings in the demolition. I don’t want to vote for any of them…BJP carried out the demolitions, but the AAP government did nothing. Dealers sold the land to us and we took a loan to buy it. We didn’t know it was government land.”

Another voter, Mustaqim, from East Delhi constituency told the reporter that “Modi ji said ‘jahan jhuggi wahan makaan’. Here there’s no jhuggi, no house. The councillor and MLA (AAP Jangpura MLA Praveen Kumar) helped us with the court case. Now we can only hope…”

Both BJP and AAP touted ‘jahan jhuggi wahan makan’ scheme but the slow implementation of the Centre run PM-AWAS (Urban) scheme under which EWS flats are to be handed over to economically weaker section remains lackluster. Importantly, the issue of lack of funds in the hands of jhuggi dwellers makes even these highly subsidised schemes impractical for many. Therefore, even policies like DUSIB’s “Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015” remains ineffective as it requires eligible beneficiaries to pay rupees 1,12,000 + 30000(maintenance) to avail the benefits of alternative housing scheme.

While the opposition AAP and Congress, which are alliance partners, have criticised the Central Government for the spate of demolitions and evictions, the affected voters remain stoically unhappy that no party stood with it when demolitions took place.

The AAP is yet to release its manifesto for the Lok Sabha Election 2024 while Congress and BJP manifestos find no mention on rehabilitating the jhuggies or preventing demolitions.

[1] https://www.ohchr.org/en/press-releases/2022/10/domicide-must-be-recognised-international-crime-un-expert

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The post As Delhi votes this week for the Lok Sabha 2024 election, those affected by demolitions and evictions lack trust in the parties appeared first on SabrangIndia.

Two and a half months into the 18^th Lok Sabha elections, a detailed analysis of data from the website of Election Commission of India (ECI), reveals that the poll body has issued 16 notices and orders for the violations of the Model Code of Conduct and relevant electoral laws since November 13, 2023. Unsurprisingly, the Congress and its leaders have been at the receiving end of such notices/orders with 6 in all, followed by BRS and BJP with 3 each, AAP with 2. One notice each has been issued to the Congress ruled Karnataka Government and Telangana Chief Electoral Officer (for violation of the MCC and stipulated conditions by BRS leader T. Harish Rao by publicising Rythu Bandhu scheme during the MCC period!). Data on previous notices prior to November 20923 is mysteriously missing from its website under “Current Issues” category

Where and when did the ECI issue notices for violation of the MCC?

Two notices and one order were issued against BJP, with one notice each being sent to State President, Delhi BJP (Virendra Sachdeva) and National President, Bharatiya Janta Party, JP Nadda on November 21, 2023 and April 25, 2024, respectively. The November 2023 notice was sent on the basis of the complaint filed by AAP, alleging that BJP Delhi’s social media handle had posted morphed images and videos to “ruin” the image of AAP chief Arvind Kejriwal. The April 2024 notice was issued after several political parties complained to ECI, highlighting Modi’s Banswara speech in which he referred to Muslims as “infiltrators” and “those having more children”, and accused Congress of contriving to take away the wealth of Hindus to redistribute it to Muslims. In a separate order issued on May 7, 2024, ECI asked ‘X’ (formerly Twitter) to take down the video uploaded on the ‘X’ by the account of Karnataka BJP (@BJP4Karnataka) targeting the minority and claiming that Rahul Gandhi and Chief Minister Siddaramaiah were giving funds to people from minority communities. The Karnataka BJP has however escaped from being served a notice by the ECI.

Aam Aadmi Party (AAP) received two notices, with one delivered to the National Convenor, AAP, Arvind Kejriwal and the other sent to Atishi (AAP MLA from Kalkaji) in her individual but political capacity; the notices were delivered on November 14, 2023 and April 5, 2024, respectively. Both the notices were issued after BJP filed the complaints with the poll body. In the first complaint, BJP alleged that AAP’s social media posts scurrilously targeted PM Modi by spreading “false propaganda” and associating Modi with Industrialist Gautam Adani, suggesting quid pro quo relationship. In their second complaint, BJP allegedly that Atishi gave a baseless and false statement that she was lured by BJP to join their party.

Bharat Rashtra Samiti (BRS) received three notices, dated November 24 and 25 in 2023, and one issued on May 1, 2024. All the three complaints were filed by Congress, on the basis of which notices were issued by ECI. In two of these notices, dated November 24 and May 1, the nature of the MCC violation pertained to the use of derogatory, provoking, slanderous statements against Congress. The other notice was issued in relation to the breach of the MCC as the then ruling BRS member KT Rama Rao politicised his visit at T-works, where he was found discussing about the recruitments and prospects of government jobs in Telangana.

Unsurprisingly, given the obvious orientation of the current ECI which is clearly partisan, Indian National Congress has topped the chart with ECI issuing six notices/orders to the party for the violation of the MCC and electoral laws in the given period between November 13, 2023 and May 8, 2024. The first notice was issued on November 14, 2023 against Priyanka Gandhi, general secretary of the AICC, for her statement suggesting that state-run BHEL was outsourced by Modi to its industrialist friends’. The BJP complaint had flagged her statement as unverified and false.

Two notices were issued on November 22, 2023 against the state (Rajasthan) and national head of Congress party (Govind Singh Dotasra and Mallikarjun Kharge, respectively) for advertising electoral promises in newspapers and on the social media platform, which the Election Commission considered violative of the MCC.

The very next day, on November 23, 2023, ECI sent a notice to Rahul Gandhi, Member of Parliament and star campaigner for the party, for his election speech in Rajasthan, where he compared Modi to pick pocket and called him “Panauti”. Furthermore, Gandhi had alleged in his speech that in the past nine years Modi government waived off loans’ worth lakhs of crores for big billionaires. Taking note of the BJP complaint, ECI flagged his speech as violative of MCC, Section 123 (2) of the Representation of the People Act, 1951 (RPA) and EC Advisory.

On April 25, 2024, INC president received another notice, this time against the remarks made by Rahul Gandhi and Mallikarjun Kharge (the president of the INC). The BJP complaint alleged that the speeches delivered by Gandhi in Kottayam (Kerala) and Tamil Nadu falsely accused BJP of promoting the idea of “one language” and “one religion”, giving the impression that BJP is against the people and culture of Kerala and Tamil Nadu. The complaint accused Gandhi of indulging in linguistic and cultural divide, and said that his statements were false and misleading. Similarly, BJP had flagged Kharge for his remarks implying that he was discriminated against by BJP due to his Scheduled Caste status, and therefore not invited for Ram Temple ceremony.

The sixth complaint was received on April 26, 2024, on the complaint filed by BRS member, alleging that Congress made unsubstantiated allegations against BRS party and party member KT Rama Rao. The ECI noted that it “strongly censures” the said misconduct.

Why is ECI abdicating its role by inaction and no notice against the ruling BJP for its strong of hate speech?

The ECI has broad powers under Article 324 of the Constitution, including the power to supervise the machinery of elections throughout the country to ensure free and fair elections. Ensuring that elections are free and fair also means that they are a level playing field, untainted and unaffected by a deeply polarised public and political discourse. A grave question arises on whether the ECI is wilfully ignoring hate speeches and communal remarks delivered by members of the ruling party, given that the ECI can suo moto take cognizance of such instances even in the absence of formal complaints forthcoming?

The analysis of the notices sent by ECI to political parties and their leaders for poll code violations shows that BJP (which received only three notices as opposed to six sent to the largest opposition party) is either actually committing fewer violations of the MCC and the Representation of the People Act (RPA), or, as can be understood from a bare listing of the violations listed below, the poll body is looking away from the brazen violations.

Consider the following remarks made by BJP leaders since the MCC came into force on March 16, 2024 (MCC is effective from the date of announcement of poll schedule till its conclusion):

1. On March 17, 2024, Tathagata Roy, BJP member and former governor of Meghalaya, had taken to post on social media platform X, formerly known as Twitter, to urge the home ministry to check genitalia of male candidates seeking citizenship under the Citizenship Amendment Act to confirm their religious background. Notably, CAA excludes the Muslim community from attaining fast tracked citizenship if India. Roy said that “The test of the religious status of a male must be circumcision or otherwise.”

2. On April 19, 2024, while campaigning for BJP in Uttar Pradesh’s Amroha Lok Sabha seat, PM Modi targeted sitting MP and Congress candidate Danish Ali, accusing him of having objections in chanting “Bharat Mata ki jai”. He said, “Will a person, who cannot accept Bharat Mata ki jai, look good in the Indian Parliament? Should such a person who does not like to pay gratitude to his motherland be allowed to enter Parliament.”

3. On April 21, 2024, in Banswara district of Rajasthan, Prime Minister Narendra Modi suggested that if the Congress comes to power, it would redistribute wealth of people to Muslims.

The excerpt from his speech reads, “…my mothers and sisters, they will not even leave your ‘Mangalsutra’. They can go to that level.” “The Congress manifesto says they will calculate the gold with mothers and sisters, get information about it and then distribute that property. They will distribute it to whom — Manmohan Singh’s government had said that Muslims have the first right on the country’s assets.” “Earlier, when their (Congress) government was in power, they had said that Muslims have the first right on the country’s assets. This means to whom will this property be distributed? It will be distributed among those who have more children.” “It will be distributed to the infiltrators. Should your hard-earned money go to the infiltrators? Do you approve of this?”

4. On April 21, 2024, at Rajnandgaon, Chhattisgarh, Uttar Pradesh Chief Minister Yogi Adityanath promoted the conspiracy theory of Love Jihad during an election rally.

Targeting Congress, Adityanath said, “Sisters and brothers, I ponder sometimes that even (our) mother cows were handed over to cattle smugglers and butchers, when jihadi activities were given free hand. What kind of incident had taken place with Bhuneshwar Sahu? I congratulate the public of Chhattisgarh for electing his father Ishwar Sahu as an MLA, paying a real tribute to Bhuneshwar Sahu. Bhuneshwar Sahu made only one mistake, that he opposed love jihad and Congress’s appeasement politics.”

5. On April 22, 2024, during an election speech, Yogi Adityanath targeted Opposition leaders for allegedly reading the Fatiha (a short sura of the Quran considered an essential element of ritual prayer) on the graves of criminals and gangsters.

Adityanath remarked, “These people are reading Fatiha on graves of gangsters, you must give them five more years so they can keep doing so. The policies of the SP, Congress and BSP have jeopardised citizens’ safety.” “Lord Ram returned to Ayodhya after 500 years of struggle to find his abode in the grand temple of Ayodhya, it happened under the BJP government.” 

6. On April 23, 2024, in Amroha, Moradabad, Uttar Pradesh, Yogi Adityanath repeated PM Narendra Modi’s communal talking points by repeating that Congress will redistribute country’s resources and wealth among Muslims and falsely claimed that Congress party intends to implement Sharia Law.

Adityanath said, “The Congress and its allies have betrayed the country and have once again come to you with their false manifesto. If you look at the Congress’ manifesto, they say that if they form a government, we will implement Sharia law.” “You tell me, will this country be run by the Constitution made by Baba Saheb Bhimrao Ambedkar or by Shariat?” “They say that we will again restore personal law. These people will implement Sharia law.” “Look at the condition of these shameless people. On one hand, they are eying on your property and on the other hand they are making the mafia and criminals their necklace and reciting Fatiha in their name.” 

7. On April 23, 2024, Narendra Modi delivered a speech during the election rally in Surguja, Chhattisgarh. He said, “Congress wants to loot away your wealth, even your gold. You all know whom they will give it to. You know.” “I want to unveil the “Muslim League” thinking of Congress. The Manifesto of Congress has taken up the idea of the Muslim League.” PM Modi repeated this charge in his April 25 rally held in Agra, Uttar Pradesh. 

8. On April 26, 2024, at Guna, Madhya Pradesh, Home Minister Amit Shah used similar words for targeting the Muslim community and the opposition Congress party. He said, “They want to bring back Muslim personal law. Do you think this country can be run by Shariat Law? Do you think we should let them bring back triple talaq? Till the time BJP government is there, we will not let them bring back personal law. This country will only be run by UCC (Uniform Civil Code).” “We say that the resources of our country belong to SC, ST and OBC. They say that Muslims have the first right to every resource.” 

9. On April 26, 2024, in Malda, West Bengal, PM Modi attacked TMC and Congress, and alleged that “They want to bring in a very dangerous law which will take away the mangalsutras and gold of Adivasi women. They will take away the property of every citizen and give away a big chunk of it to their vote bank.” “The TMC party works towards bringing infiltrators from Bangladesh into the country. They let these infiltrators take over your land. And now Congress wants to give away your wealth to such infiltrators.” 

10. On April 27, 2024, Prime Minister Narendra Modi, addressing a rally in Karnataka’s Belagavi, claimed that “They (Congress) side with Aurangzeb parties, the man who killed cows and broke Temples…… Congress will take your wealth and distribute it to their ‘vote bank’.”  

11. On April 30, Prime Minister Narendra Modi held a public meeting at Alladurga in Telangana’s Medak district as part of the ongoing election campaign. In his election speech, PM Modi said, “The Constitution makers…decided against religion-based quota and made it only for the SC/ST/BCs. But the Congress party and its ‘prince’ (Rahul Gandhi), are undermining the Indian Constitution by snatching away the rights of the marginalised sections by bringing quota for the Muslims through the backdoor for their vote bank politics.” “As long as I am alive, I will not allow…reservations for the SC/STs and BCs to be distributed to the Muslims at any cost”. “It is not Modi who built Ram Temple but your vote…” 

12. On May 1, at Hatkanangale, Maharashtra, UP CM Yogi Adityanath delivering an election speech said, “Congress wants to impose similar taxes…as Aurangzeb had done in his time. Will you accept this? These children of Aurangzeb are doing the work of rickshaw pullers in the current scenario and Congress wants to bring in inheritance laws.” “In the Congress Manifesto, these people have mentioned that they will let the minority communities eat as they please…These Congress people want to allow cow slaughter in our Maharashtra, in our India.” “By giving reservation to Muslims, the Congress party wants to Islamitize the country.” 

13. On May 2, in Anand, Gujarat, Prime Minister Narendra Modi alleged that ““[The opposition alliance] is asking Muslims to do ‘vote jihad’. This is new because we have so far heard about ‘love jihad’ and ‘land jihad’.” “I hope you all know what the meaning of jihad is and against whom it is waged.” 

The content of the aforementioned speeches clearly reveal that the speakers not only violated the MCC, but also the provisions of the Representation of the People Act (RPA), which is legally enforceable. The ECI did not issue any notice against these speeches except for the one delivered on April 21 in Banswara, Rajasthan. Pertinently, the Banswara speech delivered by Modi seems to be only the starting point in the series of what may be called hate speeches given by the members of the ruling party. The said speeches clearly violate the MCC and the electoral laws as can be understood from the provisions of the MCC and the RPA.

ECI in its notices to political parties has consistently quoted that “Clause 2 of Part I ‘General Conduct’ of Model Code of Conduct for the guidance of Political Parties and Candidates’ provides that: – ‘Criticism of other political parties, when made, shall be confined to their policies and programme, past record and work. Parties and Candidates shall refrain from criticism of all aspects of private life, not connected with the public activities of the leaders or workers of other parties. Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.’”

Similarly, Section 123 (3) of the RPA considers it to be a corrupt practice if a candidate or his agent asks a voter “to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem…”

Section 123 (3A) of the RPA notes that corrupt practice would involve “The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

Section 125 of the RPA reads that “Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall he punishable, with imprisonment for a term which may extend to three years, or with fine, or with both.”

While the Model Code of Conduct (MCC) does not have a statutory backing, making it legally non-binding, it nonetheless serves as a moral code for parties during the elections. Furthermore, ECI can temporarily ban political leaders and candidates from political campaigning in case of violation of the MCC. As for the RPA, it has a legal backing, and violation of Section 125 (Promoting enmity between classes in connection with election) carries punishment of 3 years of imprisonment or fine, or both.

Thus, it can be clearly concluded that, even after the flagrant violation of electoral norms and rules by the speakers as evident from the aforementioned provisions of the MCC and RPA, ECI has been reticent in its conduct. In addition, the conduct of the poll body goes against the rule of law, as evident from the disproportionate number of notices sent to opposition parties as compared to the ruling party. Furthermore, by ignoring plethora of hate speeches delivered by the ruling party members, the poll body seems to be far away from its stated ambition of ensuring “free and fair” elections.

Notably, the response of the ECI to these speeches, if at all forthcoming, is unlikely to hold these speakers accountable. The Indian Express had recently reported that in its response against Modi’s Pilibit speech, ECI is likely to conclude that “Narendra Modi’s reference to the construction of the Ram Temple in an election rally is not an appeal to vote in the name of religion. Mentioning the development of the Kartarpur Sahib Corridor…the Sikh holy book…in a constituency with a sizeable Sikh population, does not violate the Model Code of Conduct (MCC).” The same report also noted that “it is also understood that the EC came to the conclusion that the PM’s speech did not promote enmity between communities, and that the mere mention of religion in a campaign speech is not sufficient for the EC to act, as it would unduly restrict a candidate’s freedom to campaign”.

The elections of 2024 will be marked by sharply partisan non-conduct from the statutory body, the ECI. The ECI has arguably contributed to contaminating the Indian political and public sphere by its one-sided action topped by brazen inaction in dealing with the aforementioned speeches by campaigners of the ruling regime. The content of all these speeches, misuse religious for political gain, slur and stigmatise certain sections of Indians and promote enmity between communities of our people.

Related:

United Against Hate: CJP’s Battle for a Hate-Free Election in 2024! | CJP

Why Modi’s poll histrionics accusing Congress of potentially fracturing away SC/ST quotas to Muslims is a spurious claim?

Several instances of hate speech in March and April mar the election cycle, demonise religious minorities before the polls | CJP

The post ECI: Of 16 notices issued by ECI for violation of MCC/electoral laws, BJP escapes scrutiny with just 3 from the watchdog appeared first on SabrangIndia.

To better understand the controversy, it is helpful to refer to the impugned manifesto. While the Congress manifesto (Nyay Patra) talks about growing inequality in the country between richest of Indians and the large number of poor, it only says that “We will address the growing inequality of wealth and income through suitable changes in policies.” 

In the same fashion, Nyay Patra mentions that “Congress will conduct a nation-wide Socio-Economic and Caste Census to enumerate the castes and sub-castes and their socio-economic conditions. Based on the data, we will strengthen the agenda for affirmative action.” Ironically, the manifesto notes that Congress “guarantees” that it will pass a Constitutional amendment to raise the 50 per cent cap on reservations for SC, ST and OBC.

Why SC/ST reservations cannot be transferred to Muslims (legally)?

Muslims in India are given reservations only under the categories of Other Backward Classes (OBC) and/or Socially and Economically Backward Classes (SEBC), the lists for the same are prepared by the Central and State governments respectively. 

Effectively, this means that any increase in Muslim quota can be only undertaken at OBC/SEBC level, without touching the integrity of the SC/ST reservation. Furthermore, as the ST/SC reservation is a Constitutional reservation, nobody can remove these categories from the benefits of reservation unless a Constitutional amendment is made in that regard, which is politically unsustainable. Furthermore, SC/ST converts from Islam are not eligible for reservation benefits under SC/ST category, and the case is pending before the Supreme Court in this regard.

The Constitution (One Hundred and Fifth Amendment) Act, 2021 modifies Articles 338B, 342B, and 366 of the Constitution to allow state governments to prepare their own socially and economically backward classes lists for the purpose of giving reservation to these communities, apart from the ones already covered under the OBC list prepared by the Central Government. This amendment had to be carried out because after the passage of 102th amendment Act, followed by the Supreme Court judgement in Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra, the court had held that due to 102th amendment Act states did not have the power to make their own SEBC lists.

How do the Muslims fare within OBC/SEBC reservation?

While the possibility of a religion, if it is proved to be socially backward, constituting a class in itself cannot be ruled out, much of OBC reservation today is also based on socio economic indicators of caste groups within communities. Thus, it is not the religious identity per se, but caste identity (irrespective of religion) on the basis of which OBC reservation is generally granted. Though Andhra Pradesh did provide reservation to Muslims exclusively on the basis of religion, the State justified it on the basis that the whole religion is backward in the state. Pertinently, Muslim quota did not affect the quotas of other OBC groups, as the former had a separate 5% reservation over and above the traditional OBC list. Similarly, Karnataka provides 4% OBC reservation to Muslims out of total 32% earmarked for OBC category, but this has not significantly affected share of other OBC groups as the proportion for Muslim reservation has remained constant throughout. 

In any case, proving backwardness of a group (caste/religion) before granting reservation remains a legal requirement, whether it is for group A or group B, irrespective of caste or religious considerations. 

In the past courts have cancelled the reservation granted to the groups for the absence of valid data to support the claims of backwardness for incorporating these groups under OBC/SEBC reservation. The most recent example of this can be found in Jaishri Laxmanrao Patil vs The Chief Minister and Ors., where the Supreme Court quashed the SEBC Act of Maharashtra state as amended in 2019 for breaching the 50% limit on reservations, as the court did not find any exceptional circumstances for giving flexibility to override the 50% limit set by the apex court in Indra Sawhney vs. Union of India.

Muslim castes under OBC/SEBC lists in Gujarat 

The list of SEBC castes/groups prepared by the state government of Gujarat has 30 entries (out of over 140 such entries) covering numerous Muslim castes under its SEBC reservation policy. Similarly, Central list of OBCs for the State of Gujarat prepared by the National Commission for Backward Classes (NCBC) has 23 entries in which various Muslim castes are provided benefit of OBC reservation. Thus, the fearmongering that Muslims will take up the space of other groups in the SC/ST/OBC categories might not be true when the PM Modi’s home state itself has generous provisions for various Muslim caste groups, quite reasonably so. 

Interesting, in 1985 when the Madhavsinh Solanki of the Indian National Congress was ruling the state of Gujarat, he increased the SEBC reservation from 10% to 28%, calculating his political moves on the basis of KHAM strategy (Kshatriyas, Harijans, Adivasis and Muslims). The move was profoundly rewarding, with the INC bagging 149 seats out of 182. 

Importantly, the Baxi Commission report –a decade before in 1975—identified around 35.5% of population in the state as backward, and the move to increase the SEBC reservation in the state was strengthened on that basis. Later, after studying that Baxi Commission report that was submitted in 1975-76, the government issued a resolution in 1978 adding 82 castes/classes/groups in the SEBC category (with 21 such entries for various Muslim caste groups). While the Solanki government benefitted from increasing the SEBC reservation from 10% to 28%, it also sparked massive protests and riots in the State, especially in Ahmedabad as the people starting opposing OBC quotas, which together with ST and SC quotas took the total reservation in the state to 49% percent. Notably, Gujarat also remains prominent in the 1980s for anti-Mandal riots, which eventually became anti-Muslim, as the opposition to KHAM gathered pace (and as Kshatriyas lost ground to their political rivals Patidars with the emergence of the BJP).

Despite changes in the fortunes and alterations in the government, with the BJP ruling the state since 1995, there has been no demand or attempt to take away reservations provided to sections of caste groups within Muslim community (which was initially provided on the basis of their backwardness alone). 

This reality –given the fact that Narendra Modi himself ruled the state for a significant 17 years — makes it even more ironical that his recent campaign claims against the Indian National Congress (INC) sound hollow. Gujarat has sat comfortably with 12-15 Muslim OBC caste groups enjoying the benefits of reservation as per the Baxi Committee report. So, in spite of Prime Minister making grand claims about Muslims’ taking away resources or reservations of the SC/ST/OBCs, the home state of the PM has since long identified and understood that large sections of Muslims are still fairly backward, and the last 25 years of BJP rule has not made any moves to exclude these Muslim caste groups from the state list of SEBCs!

The Gujarat state list of SEBCs may be seen here

Related:

Rising tide of hate speech sours election climate, targeting religious minorities

United Against Hate: CJP’s Battle for a Hate-Free Election in 2024! 

Equality and a Level Playing Field 

The post Why Modi’s poll histrionics accusing Congress of potentially fracturing away SC/ST quotas to Muslims is a spurious claim? appeared first on SabrangIndia.

Responding to the plea for increasing voter verifiable paper audit trail (VVPAT) cross verification from present 5 EVMs machines (randomly chosen) in each Assembly Constituency (for both state assembly election and General Election) to 100% cross verification, Justice Khanna wrote that, “First, it will increase the time for counting and delay declaration of results. The manpower required would have to be doubled. Manual counting is prone to human errors and may lead to deliberate mischief. Manual intervention in counting can also create multiple charges of manipulation of results. Further, the data and the results do not indicate any need to increase the number of VVPAT units subjected to manual counting.”

However, significantly, the court did introduce measures to improve transparency and accountability of the present system by allowing runner up candidates positioned second and third after the highest polled candidate to seek verification and checking of burnt memory/microcontroller in 5% of EVMs per (respective) Assembly Constituency or Assembly  Segment in case of Parliamentary Election. 

The court recorded that such request for verification must be made within seven days of declaration of results and “The District Election Officer, in consultation with the team of engineers, shall certify the authenticity/intactness of the burnt memory/microcontroller after the verification process is conducted. The actual cost…for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. 

The expenses will be refunded, in case the EVM is found to be tampered.” Significantly, the court refused to accede to the petitioners’ request to direct the Election Commission of India (ECI) to disclose source code of the EVM, arguing that revealing the source code can lead to its misuse.

The judgment also directed Election Commission (ECI) to ensure that Symbol Loading Units (matchbox sized apparatus used to put candidate and party information into VVPAT through laptop/PC) are sealed immediately upon use and stored in strong room(s) for 45 days after the declaration of results. Pertinently, the court remarked that feeding serial numbers and names of candidates and their party symbols in bitmap files (images) in VVPAT cannot be equated with uploading a (malicious) software, The Hindu reported. 

The verdict also rejected the plea to return to ballot paper system, describing the attempt as “foible and unsound”. In addressing another technical issue regarding the design of VVPAT, Justice Khanna in his judgement noted that “ECI has been categoric that the glass window on the VVPAT has not undergone any change” and “The tinted glass used on the VVPAT printer is to maintain secrecy and prevent anyone else from viewing the VVPAT slips”, though still allowing a voter to view her printed VVPAT slip for seven seconds, confirming her candidate and party choice. The petitioners in the case were arguing that not having a full transparent view of VVPAT’s workings raises suspicion as a voter might not be sure whether a fresh slip is produced every time, or the same slip is displayed (in the case where the previous voter had cast the vote for the same), thus illicitly cutting down votes of a party and benefitting a rival party.

The order may be read here:

How do EVM, VVPAT and Symbol Loading Unit function?

The Electronic Voting Machine or EVM unit consists of Control Unit (CU) and Ballot Unit, which jointly functions to successfully register a vote. The Control Unit is placed with the Presiding Officer or a Polling Officer and the Balloting Unit is placed inside the voting compartment, both are joined through a cable. The two units in the third generation EVMs are connected via VVPAT. The FAQ on EVM and VVPAT issued by the Election Commission notes that Polling Officer in-charge of the Control Unit will release a ballot by pressing the Ballot Button on the Control Unit and this in turn will enable the voter to cast his vote by pressing the blue button on the Balloting Unit against the candidate and symbol of his choice. 

Similarly, it explains that VVPAT is an “independent system attached with the Electronic Voting Machines that allows the voters to verify that their votes are cast as intended. When a vote is cast, a slip is printed containing the serial number, name and symbol of the candidate and remains exposed through a transparent window for 7 seconds. Thereafter, this printed slip automatically gets cut and falls in the sealed drop box of the VVPAT.”

EVMs were first used in 70-Parur Assembly Constituency of Kerala in the year 1982, and since then its use was gradually increased to cover all state and national elections. VVPAT was first introduced in a bye-election from 51-Noksen (ST) Assembly Constituency of Nagaland in 2013, though its field trial had already taken place in 2011. Currently, EVMs and VVPATs are manufactured by two public sector companies, namely, Electronics Corporation of India Ltd (ECIL) and Bharat Electronics Ltd (BEL).  These companies had recently refused the names and contact details of the manufacturers and suppliers of various components of EVMs and VVPATs under the RTI Act citing “commercial confidence”, Business Standard reported.

Symbol Loading Unit (SLU) is an apparatus used to transfer the details of parties and candidates for the given polling booth to VVPAT, in order to allow the latter to print the paper slip containing those details of chosen candidate and party symbol. SLUs were generally reused to feed the requisite information to numerous VVPATs across polling booths or constituencies, but with the latest court order on April 26, this will not be possible as SLUs need to be immediately sealed once they have transferred relevant data in a given constituency, and secured in a strong room, just like EVMs and VVPATs.

Challenges to the credibility of EVMs and VVPATs

While general allegations about hacking or manipulation of EVMs have been consistently raised by those who oppose EVMs on technological grounds, there has been no conclusive demonstration to prove the alleged charges, except with the possibility of physical tampering. Given that handling of EVMs is undertaken in a secured environment, with 24×7 CCTV surveillance of strong rooms, and double lock system, whose keys are held separately by two different officials appointed by the electoral officer, the possibility of large-scale rigging is difficult in the absence of physical access to the device or complicity of officials. Furthermore, EVMs cannot be connected to any wireless or Bluetooth connection given its manufacturing built.

Likewise, ECI has argued that the VVPAT has (burnt) one-time programmable memory and flash memory of 4 megabytes, which is designed to solely store and recognise a bitmap format file. It can store a maximum of 1024 bitmap files containing the symbol, the serial number and name of the candidate, and does not store or read any other software or firmware. This explanation came in response to the questions raised regarding the possibility of tempering with VVPAT machines or EVMs as connected to VVPATs through software manipulation or insertion of a malicious code.

Furthermore, first level checking (FLC) for EMVs and VVPATs are conducted in the presence of representatives of political parties to ensure that the devices are free of any flaw(s) or manipulation. This exercise is conducted well in advance of the polls (at least 120 and 180 days before the state assembly and the general election respectively), and the checked EVMs and VVPATs are then sealed with signatures of the representatives of political parties present on the said seal. For the remaining period before the election(s), the devices will continue to be placed in the strong rooms under CCTV surveillance, and only these checked devices can be used in the polls. There is also a separate checking process in before the beginning of the polls to ensure additionally level of trust and safety.  

More substantial charges against EVMs are regarding the handling of EVMs rather than against EVM per se, as several instances have some to light where poll body has castigated its officials for mishandling EVMs or not following proper guidelines and SOPs. The Election Commission has also rejected the news reports which claimed that around 20 lakh EVMs were missing from ECI records, saying that reports are misleading and fake. 

Incidentally, when EMVs were first piloted in 1982 in 50 out of 84 polling stations in the Parur constituency, the apex court had set aside the election result in the constituency, asking ECI to reconduct the polls using ballot papers as the law then did not permit the use of EVMs in the elections, as per the Indian Express report. As per the same report, later, in 1988, “the election law was amended to insert Section 61A, which allowed the ECI to specify the constituencies where votes would be cast and recorded by voting machines.” 

Past petitions nudging for improved electronic voting system

One of the earliest petitions requesting changes in the way EMVs were used in the elections was filed by Rajendra Satyanarayan Gilda (Writ Petition (Civil) No. 406 of 2012) and Subramanian Swamy (Civil Appeal No.9093 of 2013), in which they urged the court to strengthen the electoral process by introducing paper slip trail so that the voter can verify that her vote was corrected recorded by the EVM machine. Swamy had argued that the EVMs were open to hacking, just like any other electronic device, irrespective of the claim made by the ECI to the contrary. Clubbing both the petitions, the Supreme Court bench of Justice P. Sathasivam and Ranjan Gogoi delivered its judgement on October 8, 2013, directing the Election Commission, which in 2013 had already used VVPAT in all the 21 polling stations of Noksen Assembly Constituency of Nagaland, to expand its use in phased manner throughout the country. The bench noted in its judgement that “we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the ‘paper trail’”. Thus, with this order, VVPAT came to be gradually used for all state and national level elections as an essential component of the election process to assuage the doubts regarding the credibility of EVMs, and strengthen the integrity of the elections.

The order may be read here:

In 2018, a year before the General Election of 2019, petition was filed in the Bombay High Court by Manoranjan Santosh Roy, alleging serious fraud and discrepancy in the purchases and handling of EVMs. The PIL in the case claimed that the information obtained through Right to Information (RTI) from manufacturers, Law Ministry, and ECI had conflicting answers to his queries on the purchase and the handling of EVMs. Some of the news media had reported that the petition in the court had revealed that 20 lakh EVMs were missing from the custody of ECI, suggesting mishandling of the EVMs, but the said reports were rejected by the ECI as misleading. 

In the same year, the petition filed by Delhi based Nyaya Bhoomi seeking replacement of EVMs with ballot papers in 2019 General Election was rejected by the bench of Justices Ranjan Gogoi, K M Joseph, and M R Shah.

In 2018 another petition was filed by M.G. Devasahayam (Writ Petition (Civil) No.1514/2018) asking the Supreme Court to increase the VVPAT paper slips verification to 50% in every Assembly Constituency.  To undertake this, the petitioner asked the SC to quash the Guideline No. 16.6 of the Manual on Electronic Voting Machine and VVPAT which mandated verification of VVPAT paper slips in 1 polling booth per Assembly Constituency. ECI in its affidavit had maintained that the present ratio of verification was well above the statistically reasonable sample size of 479 EVM-VVPAT verification as suggested by the Indian Statistical Institute (ISI). It argued that the existing rule would result in verification of 4125 EVMs, way above 479 needed to achieve 99% accuracy in the election results. The petitioners in turn rejected the criteria suggested by ISI, and citing the authority of Dr. S.K. Nath (former Director General of the Central Statistics Organisation) argued that “Without counting of VVPAT paper slips in a significant percentage of polling stations in each constituency, the objectives of verifiability and transparency in the democratic process would remain unrealized”.  Incidentally, Dr. S.K. Nath had suggested that at least 30% cross verification must take place in a given assembly segment of 200 booths to achieve sufficient accuracy. This petition was eventually tagged with a batch of other petitions requesting the Supreme Court to issue similar directions with regard to the issues concerning EVM-VVPAT cross verification.

The order may be read here:

In the case of N Chandrababu Naidu vs. Union of India (Writ Petition (C) No. 273 of 2019) the petitioners were making the same demand for increasing the verification to 50% cross verification of VVPAT paper slips with EVM vote count. Delivering the judgement in this case on April 8, 2019, the Supreme Court bench of Justice Ranjan Gogoi, Deepak Gupta, and Sanjiv Khanna increased the cross verification from 1 EVM-VVPAT cross verification to 5 per Assembly Constituency. In observed in its verdict that “If the number of machines which are subjected to verification of paper trail can be increased to a reasonable number, it would lead to greater satisfaction amongst not only the political parties but the entire electorate of the Country”. The bench did not agree to the threshold of 50% cross verification after taking into account the additional requirement of manpower and possibility of delay in the declaration of the results by 5-6 days.

The order may be read here:

Related:

Making Every Vote Matter 

EVM Malfunction: Does Criminalisation Deter Genuine Complaints? 

Is the Indian EVM & VVPAT System free, fair, fit for elections or can it be manipulated? 

VVPAT-EVM Verification: SC issues directions for fool-proofing EVM, sealing of EVMs & SLUs enabling runner-up candidate verification

The post How safe is my vote? A detailed look back at the EVM-VVPAT controversy in India appeared first on SabrangIndia.

On April 23, while hearing the plea for prison reforms (W.P.(C) No. 406/2013), the Supreme Court bench of Justices Hima Kohli and Ahsanuddin Amanullah castigated the States for not providing proper details in their affidavits about the conditions of prisons, and neglecting the court directives to carry out prison reforms in district and central jails based on the recommendations of District Committees setup by the court through its order on January 30, 2024. It also expressed displeasure over the States’ lackadaisical approach for not treating the matter seriously, and for failing to provide necessary information about the steps taken to improve prison infrastructure and living standards in jails.

The court gave couple of weeks’ time to the Chief Secretaries of the concerned States/UTs to file the affidavits, “emphasizing that the affidavits shall mention the manner in which recommendations given by the respective Committees are proposed to be implemented and the timelines for such implementation”, LiveLaw reported.

Notably, in its January order the bench had directed the States/UTs to create District Committees comprising District Judge, District Magistrate, Superintendent of Police, Secretary of District Legal Services Authority, and Superintendent of Jail, to study the conditions of prisons at a district level and send their recommendations to States for improving living conditions of prisoners, including creation of new prisons to reduce overcrowding, and ensuring proper sanitation, hygiene, food, health, education, and other services in the prisons.

In one of its earlier judgements in the same case, in February 2016, the bench of Justices Madan Lokur and R.K. Agrawal had asked States to strictly implement Model Prison Code 2016, and cautioned that it “needs to be implemented with due seriousness and dispatch” so that it is not “reduced to yet another document that might be reviewed only decades later, if at all”. In the same judgement, the bench had also taken note of the plight of undertrial prisoners and had urged the States to see to it that poor undertrial prisoner who have secured bail do not languish in jails due to their poor economic status or inability to pay bail money. Emphasising on the need to improve prison conditions, the bench directed in its judgement that “The Director General of Police/Inspector General of Police in-charge of prisons should ensure that there is proper and effective utilization of available funds so that the living conditions of the prisoners is commensurate with human dignity. This also includes the issue of their health, hygiene, food, clothing, rehabilitation etc.” The bench then had relied on landmark judgements like Sunil Batra ((1978) 4 SCC 494), Sunil Batra (II) v. Delhi Administration ((1980) 3 SCC 488), Rama Murthy v. State of Karnataka ((1997) 2 SCC 642), and T. K. Gopal v. State of Karnataka ((2000) 6 SCC 168) to argue in favour of humanitarian prison reforms.

Rama Murthy judgement specifically lists down 9 areas of immediate concern, which includes:

1. Over-crowding
2. Delay in trial
3. Torture and ill-treatment
4. Neglect of health and hygiene
5. Insubstantial food and inadequate clothing
6. Prison vices
7. Deficiency in communication
8. Streamlining of jail visits
9. Management of open-air prisons

Background on Prison Reforms

Since the establishment of modern prison in India by TB Macaulay in 1935, there has been numerous attempts by governments, both pre-independence and post-independence, to change the living conditions in prisons. Post-independence, Pakwasa Committee in 1949 suggested that prisoners can be used as labour for road work without any intensive supervision over them. It was from this time onwards that a system of wages for prisoners for their labour was introduced, and subsequently, certain liberal provisions were also introduced in jails manuals by which well-behaved inmates were rewarded with remission in their sentence, as per the report prepared by the Lok Sabha Secretariat on prison reforms.

The Government of India appointed the All-India Jail Manual Committee in 1957 to prepare a model prison manual following the recommendations of Dr. W.C. Reckless regarding prison reform in India, the latter being the United Nations expert on correctional work. The aforementioned committee prepared the Model Prison Manual in 1960, which became the basis for the Central Government to appoint a working group on prisons in 1972, which recommended classification of prisoners and their treatment based on certain principles.

In 1980 the Government of India set-up a Committee on Jail Reforms under the Chairmanship of Justice A. N. Mulla, which submitted its report in 1983 recommending the following measures:

• Improving prison condition by making available proper food, clothing, and sanitation.
• The prison staff to be properly trained and organized into different cadres, with the setting up an All-India Service called the Indian Prisons & Correctional Service.
• After-care, rehabilitation and probation to be an integral part of prison service.
• The press and public to be allowed inside prisons and allied correctional institutions periodically, so that the public may have first-hand information about the conditions of prisons and be willing to co-operate in rehabilitation work.
• Undertrials in jails to be reduced to bare minimum and they be kept away from convicts. Furthermore, the number of undertrials to be reduced by speedy trial and liberalization of bail provisions.
• The Government may make an effort to provide adequate financial resources.

Shortly afterwards in 1987, Justice Krishna Iyer Committee, setup to study the conditions of women prisoners, recommended induction of more women into the police force in view of their special role in tackling women and child offenders.

Following the Supreme Court direction in Rama Murthy (mentioned above) to prepare uniform prison laws across the country, a draft Model Prison Management Bill (The Prison Administration and Treatment of Prisoners Bill, 1998) was circulated among the States, but pertinently, the Bill was never finalised. Since then, two Model Prison Manual(s) have already come out, one in 2003, and the latest one in 2016.

In 2021, Rajya Sabha MP K.C. Ramamurthy requested the Minister of Home Affairs to provide details about the salient features of 2016 Model Prison Manual, its implementation by the States, and how the Government intends to ensure the implementation of Nelson Mandela Rules in prisons.

Responding to his query, Minister of State for Home Affairs (MoS), G. Kisan Reddy, stated the following in response to highlight the salient features of Model Prison Manual 2016:

• It brings in basic uniformity in laws, rules and regulations governing the administration of prisons and the management of prisoners all over the country
• Lays down the framework for both sound custody and treatment of prisoners
• Spells out minimum standards of institutional services for the care, protection, treatment, education, training and re-socialisation of incarcerated offenders
• Evolving procedures for the protection of human rights of prisoners within the limitations imposed by the process of incarceration
• Individualises institutional treatment of prisoners in keeping with their personal characteristics, behavioural patterns and correctional requirements
• Forging constructive linkages between prison programmes and community- based welfare institutions in achieving the objective of the reformation and rehabilitation of prisoners
• Access to free legal services: legal aid clinics, jail visiting advocates, constitution of under-trial review committees
• Provisions for women prisoners including safeguards, protections, special programmes, counselling, focussed after-care and rehabilitation, as well as provisions for children of women prisoners
• Legal aid to prisoners sentenced to death, mental health evaluation, procedures and channels for mercy petition
• Prison Modernisation: Use of technology/software including Personnel Information System, installation of CCTVs etc. to prevent violation of Human Rights

While commenting on the conformity to the Nelson Mandela Rules, MoS for Ministry of Home Affairs suggested that States are ultimately responsible for their implementation, and the Union Government has already sent the respective Rules to the States, asking them to implement the same. The response also noted that the Union has advised the States to have these rules (Nelson Mandela Rules) “translated in local language and disseminate the guidance contained therein to all prison officials to ensure that these rules are followed by the officials concerned in dealing with prison inmates.”

CJP’s endeavour towards bringing police accountability and prison reforms

CJP has in the past reported about the incidents affecting right to liberty of the citizens (Article 21) due to police accesses and has also advocated for the police reforms. In the case of Pankaj Kumar Sharma v Govt of NCT of Delhi & Ors, CJP reported how the Delhi High Court came down heavily on the Delhi Police personnel responsible for illegally detaining the citizen (Pankaj Kumar Sharma) and issued a compensation of 50,000 rupees from the salaries of the two police officials responsible for the misconduct, namely, (Sub-Inspectors) Rajeev Gautam and Shamim Khan. In the judgement delivered by Justice Subramonium Prasad, the court noted that “The time spent in the lock-up by the petitioner, even for a short while, cannot absolve the police officers who have deprived the petitioners of his liberty without following the due procedure established by law… This Court is of the opinion that a meaningful message must be sent to the authorities that police officers cannot be law unto themselves”.

In the aforementioned case, the court relied on number of important judicial precedents, including D K Basu v. State of West Bengal, in which the apex court had released guidelines to be followed by the police while arresting or detaining a concerned citizen.

The DK Basu guidelines among other things require the police to ensure the following:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register
2. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

In addition, the judgement also relied on Nilabati Behera (1993 AIR 1960) to provide compensation to the victim of illegal act of detention carried out by the police. Importantly, in Nilabati Behera the court had noted that “citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction.”

Similarly, CJP continued to raise awareness about the Police Complaints Authorities (PCA) in Maharashtra, for which a user guide was initially released by the Commonwealth Human Rights Initiative (CHRI). PCAs were established in Maharashtra in 2014 at the state level (1) and divisional level (6) to register complaints or grievances against police personnel for serious misconduct, corruption, or abuse of authority.

PCAs have wide ambit of power to perform the following functions:

1. Conduct suo moto inquiries or through complaints against Police Officers, hear all concerned persons, receive evidence, and give recommendations to be implemented by the police department and the state government
2. Advise the state government to ensure the protection of witnesses, victims and their families who face, or may face, threats or harassment for filing a complaint against the police
3. Visit any police station, lock-up or other place of detention used by the police (with written authorisation from the Chairperson).
4. Receive complaints involving death in police custody, grievous hurt under Section 320 of the IPC, rape or attempt to commit rape, arrest or detention without following procedure, corruption, extortion, land or house grabbing and any other serious violation of law or abuse of authority

In 2018, CJP once again raised its voice against the growing misuse of police across the country to supress peaceful protests by the citizens. It moved the National Human Rights Commission (NHRC) demanding guidelines on how the police should behave with peaceful protestors in order to protect citizens’ right to peaceful protest under Article 19 of the Constitution.

CJP-PUCL manifesto on prison reforms and police accountability

Before the election to Lok Sabha 2024 took off, CJP and PUCL jointly released their manifesto, which among other things also deal with the long pending issue of prison reforms, especially with regard to the rights of undertrial prisoners. The following demands have been raised in our manifesto:

1. Follow and implement relevant judgments of the Supreme Court on under trials and ensure prison reforms in accordance with the Model Manual for Prison Reform, 2016.
2. Order the immediate release of under trials who have already served half their maximum sentence.
3. Ensure regular monitoring of prison conditions, particularly in relation to women and children through the implementation of district and other monitoring committees as per the Model Manual Prison Reform, 2016.
4. Ensure adequate sanitation and health facilities, and emphasise cleanliness and adequate food and clean water; access to work, reading and writing materials in all prisons.
5. Ensure efficient, regular and quality legal aid to all under trials and other prisoners.
6. Ensure the emoluments to the prison employment staff (including services of convicted prisoners utilised by the state) meet the standards of the updated standards in the Minimum Wages Act, 1948.
7. Ensure training and sensitisation of all Jail/Prison staff in national and international human rights standards to ensure just and humane conditions within prisons.
8. Explore the shift to an Open Prison System for less stringent crimes.
9. Allow human rights defenders (HRDs) full and free access to police stations, prisoners, etc.
10. Abolition of capital punishment and all forms of torture.
11. Ratification of the United Nations Convention Against Torture (UNCAT), effecting of changes in domestic legislation to ensure compliance with the provisions of UNCAT and introduction of domestic law against torture and ill-treatment in line with the provisions of UNCAT.
12. Ensure the strictest adherence to the rule of law and immediately put a stop to all forms of torture by the police, custodial killings, extra judicial / encounter killings etc.
13. Remove requirement for sanction to prosecute police officers, military personnel and public officials from all laws and take strictest action against erring officers.
14. Strengthen the law already enacted for the protection of whistle blowers.
15. Full implementation of police reform provisions in line with not just the Supreme Court judgement in the Prakash Singh case, but also the recommendations made by the National Police Commission Reports.
16. Ensure the establishment of Independent Directorates of Prosecutions that are monitored by the higher judiciary and are independent of the executive arm of the government.

Related:

Indian Prison Condition and Monitoring

Monitoring the condition of Indian prisons

India Justice Report 2019 highlights country’s failing criminal justice system

The post SC asks States to improve prison conditions, address the issue of overcrowding in prisons in its latest rebuke to States for not following its previous directives effectively appeared first on SabrangIndia.

Notably, the FIR was registered at Bannadevi police station in Aligarh on December 5 last year, charging the petitioners under IPC Sections 379 (theft), 120-B (criminal conspiracy), 366 (kidnapping or inducing a woman to compel her marriage), and Section 3 and 5(1) of U.P. Prohibition of Unlawful Conversion of Religion Act, 2021.

Interestingly, the FIR invokes Section 3 and 5 (1) of the anti-conversion law, which relates to prohibition of conversion from one religion to another by fraudulent means and the punishment for the same, respectively, despite the fact that in the present case the petitioner had not converted her religion. This further adds weight to the claims about excessive abuse of Uttar Pradesh (UP)’s draconian anti-conversion law for punishing consenting interfaith couples.

This state law is under a constitutional challenge in the Supreme Court of India. Citizens for Justice and Peace is the lead petitioner. In its first petition challenging the anti-conversion laws of Uttar Pradesh and Uttarakhand, the Supreme Court had issued notice in January 2021, Thereafter, CJP challenged Madhya Pradesh and Himachal Pradesh laws were also added in this challenge. An additional petition was thereafter filed after the Karnataka and Haryana laws were passed in 2022 and the amendment to the Gujarat law was also enacted. In January 2023, CJP filed an additional petition challenging the anti-conversion laws of Chhattisgarh, Gujarat, Haryana, Jharkhand and Karnataka. Hence the anti-conversion laws of nine BJP ruled states are presently under the challenge in the Supreme Court, in which CJP is the lead petitioner.

Facts of the case

The petitioner by the name of Deepanshi had married her Muslim partner (petitioner no.2) under the Special Marriage Act (SMA, 1954), and since leaving her natal home she had been living with him. After the FIR was registered against them, the couple moved to the Allahabad High Court requesting the court for a direction to be issued to police to not arrest them with regard to the charges filed in the FIR.

In its March 4, 2024 order, the Allahabad HC after hearing both the parties recorded that the petitioners are “major” and have married of their own “free will” under Special Marriage Act, and possesses a valid marriage registration certificate. The bench of Justice Mahesh Chandra Tripathi and Gajendra Kumar further observed that the statement of the petitioner was yet to be recorded under Section 164 of the CrPC, and directed the investigation officer to produce the petitioner before the Chief Judicial Magistrate, Prayagraj, to record her statement under Section 164. Importantly, the bench decided to take the woman’s statement from Prayagraj after the interfaith couple alleged threat to their lives in Aligarh. Directing the Chief Judicial Magistrate to send the statement in a sealed cover, it restrained the police from arresting the couple until next date of hearing and asked the parties to cooperate in the meantime.

When the bench re-convened on March 13, it analysed the statement of the woman petitioner, in which she alleged that her father had beaten her up, and accused the police of filing a false and concocted FIR, noting that none of them had changed their religion. The bench after taking note of her desire to stay with her husband, noted that “the offence as alleged against the petitioners is not made out as victim had left her home in order to live with the petitioner no.2.” It relied on the ratio of Salamat Ansari vs. State of UP, in which the division bench of Allahabad HC had held the right to choose a partner irrespective of creed or religion an integral part of the fundamental right under Article 21. Further accentuating the point, the court reiterating the same judgement noted that “an individual on attaining majority, is statutorily conferred with the right to choose a partner, which if denied would not only affect his/her human right, but also his/her right to life and personal liberty guaranteed under Article 21 of the Constitution of India.”

Additionally, citing Gian Singh vs. State of Punjab, the bench justified the quashing of criminal proceeding in this case. Pertinently, Gian Singh judgement distinguishes between the categories of heinous crimes like rape and murder, and offences which are more of a private nature, like dowry, family disputes, and commercial issues.

The court finally quashed the FIR registered against the couples, pointing out that both the parties were major and the woman had left her home out of free will to live with her husband. It also noted that marriage had been solemnised and no conversion took place for the purpose of marriage.

This judgement assumes significance for the interfaith couples in UP as increasing number of false cases continue to be filed against them in the name of conversion and love jihad, especially after the implementation of UP’s anti conversion law.

The judgement may be read here:

Bumpy ride for interfaith couples at the Allahabad High Court?

While the present judgement has come as a relief to many interfaith couples, such jurisprudence has not been consistent at the Allahabad High Court. Before Salamat Ansari judgement was delivered, the court had on two previous occasions failed to protect the couples from the interference of the family, by holding that conversion by the girl in the respective case was void and invalid, as she did not know about the basic tenets of Islam nor did she show any faith in the aforementioned religion. Essentially, the court instead of granting protection to the couple, alleged that the conversion seems to have taken place for the sole purpose of marriage, and as such the request of the couple cannot be granted for protection.

Thus, in the case of Noor Jahan Begum @ Anjali Mishra vs. State of UP, the court went into the question of determining whether that conversion was valid or not, and finally determining that it was invalid, it declined to grant the protection to the couple, even though the couple had voluntarily asked for the police protection. The bench of Surya Prakash Kesarwani in the case had wondered, “Whether conversion of religion of a Hindu girl at the instance of a Muslim boy, without any knowledge of Islam or faith and belief in Islam and merely for the purpose of Marriage (Nikah) is valid?” Therefore, instead of determining the plea for what it was, i.e., a request for police protection, the court went into tangential terrain to determine who is real Muslim or practitioner of Islam, in order to verify whether the conversion was valid or not.

The judgement may be read here:

The same judgement was relied upon in the case of Priyanshi @ Km Shamreen vs. State of UP, in which the girl had converted from Islam to Hinduism just one month before her marriage, and the couple were requesting for a direction “not to interfere with their peaceful married life by adopting coercive measures.”

The order noted that “The Court has perused the record in question and found that the first petitioner has converted her religion on 29.6.2020 and just after one month, they have solemnized their marriage on 31.7.2020, which clearly reveals to this Court that the said conversion has taken place only for the purpose of marriage”. On the basis of this reasoning, the court refused to grant any direction and dismissed the petition.

The judgement may be read here:

This problematic understanding of the court in linking conversion with marriage has already been highlighted by us in the piece on the Allahabad High Court’s repeated refusal to granted police protection to interfaith couples.

However, the Allahabad High Court has also stood by interfaith couples in the past. Delivering a progressive verdict in the case of Salamat Ansari vs. State of UP in November 2020, the bench of Justice Vivek Agarwal and Pankaj Naqvi had observed that the judgements delivered in Noor Jahan and Priyanshi were “not laying good law.” As in the present case, the couple in Salamat Ansari had also requested that FIR registered against them under Sections 363, 366, 352, 506 of IPC and Section 7/8 of POCSO Act be quashed and no arrest takes place by the police. Significantly, in this case, the girl had even converted her religion, but that did not stop the bench from granting the relief to the petitioners, perhaps because then the UP’s anti-conversion law did not come into picture.

In Ansari case, the court relied on a number of Supreme Court judgements to grant the couple the requested relief and quashed the FIR.

The bench citing the precedents set in Shafin Jahan v. Asokan K.M, Lata Singh v State of U.P, Shakti Vahini Vs. Union of India, KS Puttaswamy vs Union of India, and NandaKumar vs. State of Kerala, noted in its order that “We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year…the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals. We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have objection to relationship of two major individuals who out of their own free will are living together.”

The judgment may be read here:

As a constitutional court, the Allahabad High Court had made it clear that no infringement of fundamental rights can be permitted, even by the State, especially in matters of personal liberty and right to live with a person of one’s choice.

Similarly, the present judgement quashing the FIR against Aligarh couple is an empowering verdict, and in line with progressive judicial precedents, effectively strengthening the constitutional protection granted to all citizens.

Related:

Allahabad HC: Repeated rejection of police protection pleas of interfaith couples, here’s why this is problematic

SC issues notice to 5 states in CJP’s renewed challenge to anti-conversion laws

CJP’s amended petition allowed, CJP also challenges ‘love jihad’ laws of 5 more states

The post By quashing the FIR against an interfaith couple accused of “conversion”, the Allahabad High Court restores jurisprudence on a constitutional path, upholds freedom of choice appeared first on SabrangIndia.

These journalists are using digital platforms like YouTube and Facebook as effective instruments to reach out to a wide audience, raise independent voice on issues that matter, and make a mark for themselves.

We spoke to Sumit Chauhan of The News Beak, Ashok Kumar of Dalit Dastak, and Dr. Mahesh Verma of Democratic Bharat, who are among the emerging Dalit YouTube Journalists: in this conversation we understand their journalistic journey, both the opportunities and challenges that digital platform offers them.

From facing caste discrimination in newsrooms to burying critical stories, and creating independent voices for themselves and finding satisfaction in the work they do, this is the story of Dalit journalists who have overcome challenges to establish a niche and a name.

Sumit Chauhan – The News Beak

Sumit is an Indian Institute of Mass Communication (IIMC) graduate, and runs his YouTube channel The News Beak, which has 9.25 lakh subscribers and has published around 3400 videos. For him journalism is a tool to change society, and his early disillusionment with corporate media houses as a first-generation learner led him to chart an independent path for himself.

Speaking to us at Sabrangindia over the call, he observed that whatever was taught in the classrooms about journalism was hardly followed on the ground. Sumit started his career with ABP News after completing his IIMC study in 2014, and later on worked with Zee News, India News, and News Nation, before quitting the latter in 2020 to work independently through his YouTube channel.

Speaking to us about his newsroom experiences, he flagged the caste-based discrimination was rampant in these media houses, and he personally faced a lot of difficulties and discrimination as a Dalit journalist. Apart from critical stories being supressed because they look “negative”, Sumit noted that these big media houses hardly have any Dalit representation, and are similar to club memberships, except that such memberships in this case is based on caste. This directly had effects on recommendation for jobs, promotion, and kind of stories that would be appreciated.

Frustrated due to professional and personal pressure for not being able to work on issues which mattered for him, he quit his media job in 2020 to work exclusive for his YouTube channel. Before this, he had already begun a YouTube channel in 2019 named, The Shudra, due to sheer discontent at work. He explained that when he launched the channel in 2019, he consciously named it The Shudra as he wanted to be caste assertive, but later changed the name to The News Beak as he realised the importance of the annihilation of caste. Interestingly, when he launched The Shudra, in order to avoid personal identification, he only used audio to tell the stories, but it nonetheless resonated with the audience. As the channel started to monetise, it encouraged him to quit his job and work as an independent journalist.

He explained that while there were lot of members from the community who had started reporting on YouTube and other digital platforms, he felt that the professional approach of the journalism was still missing there, which further encouraged him to take up his present role. Through his channel he aims to highlight Dalit history and the issues of the Dalit community, including critical stories affecting their lives, and as the channel and resources grow, he plans diversify the themes and issues he covers.

Ashok Kumar – Dalit Dastak

Ashok Das is also an IIMC graduate and started his journalistic career in 2006. His journey as a journalist has won him various recognition, and he has also been recipient of the Global Investigative Journalism Network Fellowship. He runs his YouTube channel Dalit Dastak, and maintains that his focus is to show positive side and achievements of the Dalit community, as he wants to go beyond depicting Dalits as an oppressed community. Emphasising the achievements of Dalits is important for him, as it shows that the members of the SC community are not mere hapless victims but people capable of obtaining best things in their lives. Furthermore, their success can help inspire others to follow their suit and encourage them not to get bogged down in the face of difficulties. His channel Dalit Dastak has 12.2 lakh subscribers and hosts over 4700 videos.

His career in journalism spans various news outlets, including Lokmat, Amar Ujala, Bhadas4Media and Deshonnati. In June 2012, he launched his magazine Dalit Dastak, which covered various Dalit issues, but which had to be stopped in 2022 due to increase in the cost of the printing. In 2015, he launched his publication house Das Publications and in 2017 he launched his YouTube channel Dalit Dastak, both of which are presently running.

Ashok observed in his conversation with us that YouTube helped him to expand the reach of his journalist content, even to the audience overseas, making his content global at the same the cost. Additionally, it also helped to interaction with his viewers as they readily kept sending him the feedback over for the content he produced. His primary purpose remains to highlight Dalit heroes and history, which remains marginalised by mainstream media, as they would have never studied or engaged with the history in which Dalits figures are prominent forces.

On the completion of 100 years of Dr. B.R. Ambedkar’s Mook Nayak, Dalit Dastak had also organised an event at India International Centre to celebrate his achievements. Recently, in 2020, he was invited for a panel discussion on Caste and Media by Harvard University. Apart from India, he has reported about caste discrimination in the US, Canada, and Dubai. Similarly, he published 25 stories about Dalit living in Canada. Ashok believes that his exposure of foreign countries has made him realise that freedom of speech for press is strongly respected in these countries, which we should learn from them. But at the same time, he notes that as the Indians have migrated overseas, they have also taken their caste identity with them across the globe, even if it is not as strong as it is in India.

Dr. Mahesh Verma

Dr. Mahesh’s experience in media spans across radio, print and electronic media, which began with his initial job at All India Radio in 2000. Then after, he was associated with Hindustan Times as a trainer in 2003, and with Vividh Bharti as Broadcaster during 2005-08 in Mumbai. Since then, he worked across the organisations, including ETV Rajasthan, Dainik Bhaskar, and Rajasthan Gaurav, the latter belonging to Vishwa Hindu Parishad, in which he faced casteist discrimination by the management. Later on, in 2019 he launched his own Youtube Channel, “Democratic Bharat”, which has been subscribed by over 20 thousand people. Dr. Mahesh noted that having his own channel allowed him to air independent voice, which would otherwise have been difficult. Even as he launched his channel in 2019 to focus on the issues of Dalit, Adivasi’s, and minorities, he personally suffers from various medical issues of bone and retina. But in spite of these personal, even offensive barriers that he has suffered since his time in Mumbai, he continues to actively pursue his journalistic goals un-intimidated.

Digital Discrimination

While online platforms have provided independent voice and audience to Dalit journalists, allowing them greater say in comparison to corporate media houses, the issue of censorship still looms large.

One of the journalists we spoke to alleged that if you use words like “Chamar”, “Bhangi”, or “Valmiki” in the news content –to showcase existing slurs and discrimination, even distinctions—the Platforms will not monetise your content, even though no such restriction applies when using words like “Kshtriya” or “Brahmin”!  Even in monetising criteria I is clear that large social media platforms that are corporate giant’s caste discriminate!

Similarly, platforms like YouTube and Facebook use “Community Guidelines” to either demonetise the content or even remove content, putting inordinate pressure on journalist. In one such incident, the journalist alleged that when they uploaded content showing the victims hanging from the tree, Facebook demonetised their channel for 6 months, even though they had blurred the image as per the Guidelines.

Furthermore, copyright claims are also leading to contents of small producers being taken down the wall, which forces many journalists to then depend on content from secondary sources.

The new IT Rules have also added to burden of independent digital journalists, as those with small teams will find it difficult to comply with the rules which require appointment of grievance redressal officers by the digital media entities. Nonetheless, the digital space has opened up the arena for independent journalists, including Dalit journalists, to tell their stories fearlessly and uncompromisingly, which continues to inspire us.

Related:

Award Wapsi, Gujarat: Dalit journalist returns award

Untouchability and exclusion, absence of voice: Dalit situation 2023

State-sponsored attacks of surveillance reveal an erosion on Indians’ right to privacy, especially journalists, political opposition

The post Meet Ambedkarite journalists using social media to bring us stories from the margins, foregrounding both their hurdles & achievements appeared first on SabrangIndia.

While for the chief minister of Uttarakhand, Puskar Singh Dhami, who has been responsible for the most provocative comments on several issues, be it “conversion”, Muslims’ right to faith and prayer and the Uniform Civil Code[1], the issue of intense communalisation in a polity that was never so deeply polarised as it has been for the past 18 months is the key to win the poll, the people of “Devbhoomi” –a nomenclature for Holy Land given by the CM– may vote differently.

Some indications came last week when a high profile minister from Prime Minister Narendra Modi’s cabinet visited the state. On that day (March 26) when Anil Baluni, filed his nomination papers from the Pauri Garhwal seat in the presence of Union minister Smriti Irani, the aggressively vocal Union minister for Women and Child Development faced embarrassing moments when cameras caught her strutting away avoiding independent media questions on the failure of her party’s government in the Ankita Bhandari case. “Smriti Irani Runs Away from Questions on Ankita Bhandari: BJP Faces Voters Ire in North India” were the leads in many videos and social media comments that surfaced thereafter.

In Uttarakhand when the secular Media asked @smritiirani
about Ankita Bhandari she didn’t know what to say but was seen running away from the media and questions that involved the BJP RAPISTS family members .pic.twitter.com/BfmXJx5zcU

— Ravinder Kapur. (@RavinderKapur2) March 30, 2024

“In Uttarakhand when the secular media asked Smriti Irani about the utter absence of justice in the Ankita Bhandari murder case she didn’t know what to say but has been running away from the media and questions that involved the …..family members.” This rather embarrassing moment that displays unaccountability from a minister –when the brute murder and sexual assault of a young woman is involved has not so far, affected the bluster of the BJP candidates or Irani who proceeded to make a “blistering attack on the Congress”.

However protests from the family of Ankita Bhandari and supporters bogged her visit. Significanty, Ankita’s mother has demanded the arrest of the BJP general secretary and also action against the BJP MLA Renu Bisht for destruction of evidence. She has also been publicly on record stating that the Dhami government has failed to do anything in the case and has not taken any action against BJP MLA Renu Bisht and the then SDM Pramod Kumar even as the JCB driver made a statement that he erased the room on their order.

Arrest of journalist

On March 5 the Uttarakhand police arrested independent journalist Ashutosh Negi, who is also editor of Hindi weekly Jago Uttarakhand, from his home in Pauri town under SC/ST Act. The journalist was released on bail on March 13. Following his arrest, which prompted protest from the angry public and press body, Uttarakhand Director General of Police issued the statement in which he said that Negi’s intentions are “suspected” and his agenda seems less to do with justice, and “rather aims to sow anarchy and discord in society”, Indian Express reported. Furthermore, the statement suggested that the journalist appears to be part of a broader conspiracy.

Interestingly, Negi has continuously reported on Ankita Bhandari case, in which 19-year-old receptionist Ankita was murdered in September 2022 by the owner of Vanantra Resort, Pulkit Arya, and two other employees working there along with her, Saurabh Bhaskar, and Ankit Gupta. Pulkit Arya is a son of former BJP minister Vinod Arya. Police said that she was murdered after she refused to provide “special services” to some guests at the resort. As the protests mounted after the news broke out, the investigation was handled to Special Investigation Team. Following the recovery of her body after a week from Chilla canal, the police had registered FIR against all three accused. The FIR was initially registered under section 365 (kidnapping) of the Indian Penal Code (IPC), later the charges under IPC sections 302 (murder) and 201 (causing disappearance of evidence or giving false information) were also added, as per the Financial Express.

There were also allegations that she was molested and abused before being murdered, but forensic evidence ruled out the possibility of rape. The chargesheet was filed in December 2022 in Kotdwar court under IPC Sections 354, 302, 201, 120(B) and Section 3(1) of the Immoral Traffic (Prevention) Act. Since then, the case has dragged on without final conclusion. In December last year, Uttarakhand High Court had rejected the bail plea of the main accused Pulkit Arya, noting the serious nature of the case and the presence of the accused on the location of the crime scene. Pertinently, Special public prosecutor, Jitendra Rawat, had been removed from the case after the father of the victim accused him of weakening the case. The controversy had also erupted when the resort of the accused was demolished by the administration, as the family of the victim alleged that it had been deliberately done to destroy the evidence. With the latest arrest and subsequent bail of the journalist, the case has once again caught the attention of the public just before the polls.

Ankita’s quest for justice

Since the beginning of the case, the justice has long eluded the family of Ankita. The case has seen removal of two public prosecutors due to their biased and contradictory conduct, where in one of the public prosecutors (Amit Sajwan) had in fact appeared for the accused, thus resulting in a position where state was fighting against itself. On March 18, 2023, the Kotdwar Session Court in Pauri Garhwal district of Uttarakhand finally framed the charges against the accused in the case for murder, destruction of evidence, and immoral trafficking. While the 500 pages chargesheet filed by the police recorded statements of 100 witnesses and produced 30 documentary evidence, The Hindu had reported in December 2023 that the police were yet to ascertain the identity of the customers who used to come at the resort of the victim.

Significantly, in January this year, Ankita’s mother demanded the arrest of state BJP general secretary Ajay Kumar as he was allegedly the VIP whose name appeared in the probe, as per The Statesman. It also reported that the mother “wanted local BJP MLA Renu Bisht arrested as he had ordered the erasing of the victim’s room at Vanantra Resort where she worked as a receptionist.” She further remarked that Dhami government has failed to do anything in the case and has not taken any action against BJP MLA Renu Bisht and the then SDM Pramod Kumar even as the JCB driver made a statement that he erased the room on their order.

Earlier in March 2023, in the petition that was filed in the Supreme Court for requesting CBI investigation in the case the SC had asked the state government to file the status report in the case, as the petitioners alleged that investigation done by local police had several holes. As the final disposal of the case remains pending, the justice has so far eluded the family of the victim, as the political class remains insensitive to the grievance of the family or to the facts of the case, which are politically inconvenient.

In addition, both the District Court and High Court have regularly denied bail to the accused and the case had become a political hot potato for the ruling BJP government, both for the then CM Tirath Singh Rawat, and the now for Pushkar Singh Dhami.

The tumultuous state of Uttarakhand before the polls

The state of Uttarakhand has been constantly in the news since past some time now. It became the first state to draft the much-discussed Uniform Civil Code (UCC), which is supposedly to become the model law for other states to draft their own UCC laws. Notably, the law has been criticised for exceeding its scope to cover live-in relationships, and further criminalising such relationships for want of valid legal registration.

The state government led by Pushkar Singh Dhami has also carried out various drives to remove what is calls “land encroachment”, all in the name of the law, but effectively bypassing the rule of law. The state has seen bulldozers running amok over the homes of poor residents, especially Muslims, leaving them vulnerable and homeless. The communal nature of such exercise has not been hidden to critical eye, as the Dhami government competes for its Hindutva credentials. In January this year, the Supreme Court had stayed the Uttarakhand High Court order which asked the state government to carry out eviction from the railway land in Haldwani, noting that some practical solution needs to be found as the people had long resided on the disputed piece of the land. Importantly, Haldwani eviction would have significantly affected the lives of around 50,000 people, most of them being Muslims. Nonetheless, the zealous state government did not stop here, and in February this year it demolished Mosque and Madrasa in Haldwani, leading to counter violence and arson, resulting in loss of precious lives and properties.

Notoriously, in 2021, the state witnessed the most virulent form of hate speech(s) delivered by extremist elements, including the infamous Yati Narsinghanand, openly declaring for the massacre of Muslims and praising Nathuram Godse for his assassination of MK Gandhi.

In 2022, it joined the growing list of states in drafting anti-conversion law, which on the face of it aims to prevent fraudulent conversions, but effectively targets freedom of religion and interfaith marriages, disproportionately affecting the religious minorities.

As the aforementioned incidents suggests, Dev Bhoomi has become more of a communal bhoomi, where the question of governance has been relegated into the background, and only polemic and communal issues attract the attention.

[1]
“We will demolish illegal mazars in Uttarakhand. This is a new Uttarakhand. No one should even think about encroaching on land here, let alone doing it. We are not against anyone. But encroachments in the name of mazars or anything else will not be allowed. We will not let ‘land jihad’ prosper. We believe in the law. We will not allow anyone’s appeasement.” (April 2023)https://maktoobmedia.com/india/wont-allow-land-jihad-uttarakhand-cms-hate-speech/

“This is the land for which people come to greet the Bhumi, people come here to pilgrimage – and thus in order to maintain the moolswarup, we have initiated actions to tackle land and mazaar jihad. There were more than 5 mazaars (shrines). We have freed 3300 government land.” (October 2023); https://cjp.org.in/up-and-uttarakhand-see-an-increase-in-hate-speech/

“Today we are fighting all the challenges with full strength. We brought the law of conversion. We have done the work of removing illegal encroachments. Some people created a disturbance in Haldwani and committed arson. We want to say that strict action will be taken against whoever has taken the law into his hands. No matter how big a name someone is, no one will be spared. Whoever works to spoil the system in Uttarakhand, the law will not spare him.” (Speech on UCC, Feb 2024) https://www.ndtv.com/india-news/whoever-works-to-spoil-uttarakhands-system-pushkar-dhami-on-clashes-5038387

Related:

Ankita Bhandari Case: Protests for justice enters 7th day, victim’s parents leading the protestors, condemning the arrest of the journalist seeking action in Ankita’s case

Interfaith Violence Erupts in Rishikesh: Mazars Desecrated, Constitutional Values at Stake

UP and Uttarakhand see an increase in hate speech

The post Uttarakhand: Will the Ankita Bhandari murder case, arrest of journalist, Negi affect the April 19 poll? appeared first on SabrangIndia.

A close analysis of the judgements of the court has revealed a telling pattern. The married couples whose applications for police protection got rejected were either in an inter-faith relationship or those who did not have a valid marriage registration proof. It is also crucial to note that couples who were from the same faith or religion, as far as they had completed their marriage registration process, even if they did not have a valid marriage certificate, faced no such hurdles in getting police protection. This dichotomy has resulted in a situation where inter-caste couples within the same religion are readily able to secure the necessary protection from the courts while their counterparts who come from different religions are finding it difficult to secure police protection for their safety and liberty.

The culture of honour killing is not uncommon within conservative Indian families and the lack of protection for interfaith couples in the face of real-life threats not only affect their right to life and personal liberty but also their right to peaceful marriage, uninterrupted from external forces.

In the judgements delivered by Justice Saral Srivastava in January and the March 5 judgment of Justice Renu Agarwal, the judges have cited non-compliance with the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 as one of the reasons for denying police protection to the interfaith couples. Prior to the implementation of this law, which was brought in to check what the Hindu-right calls “Love Jihad”, interfaith couples were still able to secure the protection. Though there are also other reasons for denying the protection, we are witnessing a growing trend where Allahabad HC is asking couples to first comply with the Conversion Act of 2021, and solemnize their marriage and register for the marriage certificates in compliance with the Act, in order to secure the protection of the law.

Citizens for Justice and Peace is the lead petitioner that has challenged the 2021 Uttar Pradesh Anti-Conversion law and a similar law passed in eight other states. The first petition challenging the anti-conversion laws of was filed in December 2020, which argued against the constitutionality of these laws enacted by the states of Uttar Pradesh (which initially issued it through an ordinance before enacting the Act), Uttarakhand, Himachal Pradesh, and Madhya Pradesh (WP Criminal Nos 428/2020). In December 2021, it filed another petition, this time challenging the similar laws passed by Chhattisgarh, Gujarat, Jharkhand, Haryana and Karnataka (WP Criminal Nos 14/2023). CJP argued that the said laws are violative of Article 14 (due process), 21 (right to life and personal liberty), and 25 (freedom of conscience and religion), and therefore unconstitutional.

The laws were challenged as excessively restrictive on the constitutional provisions related to fundamental rights on the following issues: autonomy of women and both partners on the issue of free choice, right to privacy, freedom to practice and propagate religion, secularism, and for creating gender stereotypes and excessive criminalisation. These laws essentially “aim” to restrict religious conversion for the sole purpose of marriage or vice versa, but their implementation reveals that they have been weaponised to target interfaith couples and marriages, thereby restricting the ability to marry a person of one’s choice and jeopardising the security of such partners.

In the meantime, the number of states which started enacting such laws grew as the petitions challenging these laws have been kept pending in the Supreme Court with attempts made by CJP for an urgent hearing and stay on the application of these laws. T Notably, CJP’s writ petition challenging UP’s anti-conversion law was last listed on April 25, 2023, almost a year ago.

Let us look at some of the cases to understand the implications for the fundamental rights of persons living in Uttar Pradesh.

Case Study

On January 10, 2024, the Allahabad HC bench of Justice Saral Srivastava dismissed a petition filed by one Ayesha Parveen for securing police protection. The judgement noted that, “It is a case of interfaith marriage as petitioner no.2 follows Muslim religion whereas petitioner no.1 is Hindu. In the instant case, there is no compliance of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, therefore, solemnisation of marriage between petitioner no.1 and petitioner no.2 is not in accordance with law.” Thus, the court dismissed their petition. The judgement in the case does not cite any particular provision(s) of the law, which is jurisprudentially unsustainable. It remains completely silent on the issue whether conversion law would kick in even if the inter faith couples did not want to get converted and were willing to practice their religions as before the marriage. But even if one of the partners was willing to convert their religion, this does not prevent courts from granting protection to such couples in the interim.

The judgement maybe read here:

Recently, in the case of Devu G Nair vs State of Kerala the Supreme Court issued guidelines in which it asked courts to stay away from moralising the issue of inter-faith, inter-caste, and LGBTQ+ couples and emphasised on providing immediate interim protection to such couples. The relevant portion of the guidelines mentioned that, “The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse…”.

The Supreme Court judgement may be read here:

The recent Allahabad HC rulings denying such protection to the interfaith couples fly in the face of the recent SC guidelines, but even before these guidelines were issued, the law had already established that privacy and safety of couples is of paramount importance and social mores should not come in the way of the fundamental rights of citizens. Through the judicial precedents set in Shakti Vahini vs Union of India and Shafin Jahan v Ashokan K.M the Supreme Court has made it clear that the right to marry a person of one’s choice is integral to Article 21, within the exclusive domain of an individual, and is a part of the core zone of privacy and individual liberty, which is inviolable. Given such precent, UP’s law on conversion itself remains precarious and the petitions challenging the validity of various conversion laws across several states have been pending in the SC.

On January 11, 2024, the bench of Justice Saral Srivastava again rejected the protection plea of the interfaith couple filed by one Farha on exactly the same ground as it mentioned in its January 10 judgement. The judgements look identical except for the fact that the petitioners have changed. In both these judgments, it put a caveat, stating that “it is open to the petitioners to prefer fresh writ petition in case they solemnise marriage after following the due procedure of law.”

The judgement maybe read here:

But it is precisely the compliance with the provisions of the UP’s Draconian conversion law that is putting interfaith couples on the edge. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 requires the person who before or after the marriage intends to convert or converts his/her religion, to send a prior notice informing about her decision to convert to District Magistrate (DM) or Additional District Magistrate 60 days in advance, stating that the conversion is not forced, and is completely out of freewill. This is followed by an inquiry ordered by the DM and the publication of the particular details of the person who intends to convert on the notice board of the DM, and then if any objections are raised to the conversion it will have to be noted by the DM. This very process scares away the partners who intend to convert, as all the particular details including permanent address and present place of the stay will be publicly displayed on the DM’s wall, for anybody to harass the couples, further endangering their safety and security. Pertinently, the burden of proof is reversed and if any accusation of unfair conversion is alleged, the accused has to defend herself that the conversion was not unfair or influenced by extraneous factors.

The UP’s (anti)conversion law may be read here:

Even in other cases, where we are not sure about the religion of the couples, the court is dismissing the petitions for the security of couples merely on the ground that there is no valid proof of marriage available. In one such case, the same bench declined the request of Kajal Rani for the police protection on January 16, 2024, stating that “there is no proof of marriage of petitioners on record, therefore, the relief prayed for by the petitioners cannot be granted”. It has been observed that the bench is consistently asking such petitioners to file fresh petitions with a valid proof of marriage.

The judgement maybe read here:

There are also other grounds on the basis of which the HC is declining the petitions, including on the ground that the HC has no jurisdiction to provide such protection, but that does not seem to be a valid argument. On January 10, 2024, the bench declined to grant any security to the petitioner Khushboo Pandey, arguing that is it the father of the petitioner who is interfering with the married life of petitioners, and since he is staying in Satna, Madhya Pradesh, it is beyond the jurisdiction of the HC to grant protection to the couples who are staying in Banda, Uttar Pradesh! The fact that both the couples are living in Banda, where the UP police can provide protection to the couple is completely out of consideration for the bench.

The judgement maybe read here:

Still another reason for the bench to refuse the protection to couples is the registration of FIR by or against the couples (the judgement does not readily help identify who has registered the FIR), which again is difficult to comprehend. While dismissing the plea for police protection in a petition filed by Smt. Sariya, the court recorded in its reason that “F.I.R. has been lodged in the present case. The instructions containing the details of F.I.R. is taken on record. In view of the above, the relief prayed for by the petitioners cannot be granted. Therefore, the writ petition is dismissed…”

The judgement maybe read here:

Selective protection by the Court

It is not the case that the bench is not granting police protection to couples in general, the same bench had been generous in granting protection to numerous couples who had either completed their marriage registration process and were awaiting marriage registration certificate or those who already possessed such certificate. The problem arises when the couples have not completed their marriage registration process or do not possess marriage registration certificate, this is most likely the interfaith couples, who due to the draconian nature of the UP’s conversion law have been facing hurdles in completing their marriage registration process. Thus, interfaith couples are most hit by the judicial neglect, which makes them doubly vulnerable, firstly at the hands of their families, and secondly at the hands of the law. Again, to reiterate the point, even if the UP’s anti-conversion law is draconian, the courts still cannot decline the protection to such couples on the ground that certificate is missing or registration process is not completed. The binding precedents and guidelines are beyond doubt in this regard.

Further analysis of Allahabad HC judgements reveals that even while granting police protection to couples, the court does not directly order the police to provide the security to the couples, rather the judgements provides that “In case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the concerned police authority, with a certified copy of this order, who shall provide immediate protection to the petitioners.” This is despite the fact and acknowledgement by the HC that police authorities failed to intervene when the couples had first approached them. After the judgement, the police are most likely to provide the protection to avoid contempt, but the process still puts entire burden on the inter-caste/interfaith couples to slog after the authorities.

The representative order maybe read here:

Moralising judgements and dangerous interlinkage between conversion and marriage

On January 16 this year, the bench of Justice Saral Srivastava dismissed a petition for police protection filed by Nagma Bano and also imposed cost of Rs. 10,000 on the petitioner. The petitioner in this case Nagma Bano was forcefully remarried after the dead of her first husband, and had been living with her partner since running away from her house. She argued that she never accepted the Nikahnama in which she was forcefully married, and therefore her live-in relationship with her partner should be secured from the outside interference, including from her husband Azad with to whom she was forcefully married.

The court while rejecting her petition noted that “…she has not accepted the Nikahnama, but the fact remains that the marriage was solemnized. The marriage may be illegal, but that issue may be determined by a Court of law. Merely, because petitioner no.1 denies that she had not accepted the Nikahnama does not prove the marriage to be illegal when it is not disputed that the petitioner no.1 was present and participated in the Nikahnama. She only disputes the fact that she has not accepted the Nikahnama.”

The same judgement records that “In the present case, till date the marriage of the petitioner no.1 with respondent no.10 is not declared illegal or dissolved as per law, no civilised society can accept the living of married partner with a third person, and the Court under law in such condition is not obliged to come to rescue of such person who is living in a society not as per the norms, ethics and values of the society.”

The judgement maybe read here:

Another pressuring concern that has arisen due to UP’s anti-conversion law is the vicious interlinkage drawn between conversion and marriage. As a matter of fact, conversion and marriage are two separate issues, dealing with separate spheres of life and there are specific laws for the same. But in line with the theory of Love Jihad, propagated by the Hindutva forces, they believe that interfaith marriages are essentially meant to convert peoples, more specifically, gullible Hindu girls being converted to Islam through fraudulent means. Apart from the theory being anti-women and irrational, it promotes a masculinist tendency and takes away the voice of women vis-à-vis their right to marry a person of their choice. UP’s anti-conversion law has been doing something similar.

The judgement delivered on March 5 this year by Justice Renu Agarwal of the Allahabad High takes the power of the anti-conversion law even further. While rejecting the plea of Mariya Zameel requesting the court order to stop interference in the peaceful living of the couples, the judgement recorded that the “Explanation goes to show that conversion is not only required for the purpose of marriage, but it is also required in all relationship in the nature of marriage, therefore, Conversion Act applies to relationship in the nature of marriage or live-in- relationship. Petitioners have not yet applied for conversion as per provisions of Section 8 and 9 of the Act, hence, the relationship of petitioners cannot be protected in contraventions of the provisions of law.”

In this case, the bench did not consider the marriage registration certificate issued by Arya Samaj, and the submission made by the petitioner that they have applied online for registration of their marriage before the competent authority, which is pending at their end. In a similar situation, had the couple been from same religion they would have faced no such issues, as the compliance with the conversion law will not be required.

Essentially, as per this interpretation by the Allahabad High Court, interfaith couples will not get any protection of the law unless conversion is first formalised under the UP’s (anti)conversion Act of 2021. This is despite the pendency of constitutional challenges to this law in the Supreme Court by Citizens for Justice and Peace and others.

The judgement maybe read here:

Conclusion

The dangerous implication and impact of the Allahabad High Court’s judgments coupled with the stringent provisions of the conversion law has virtually made it impossible for interfaith couples to secure any protection for their lives and liberty, severely affecting the effectiveness of Article 21 of the Indian Constitution. The fact that the high court of Allahabad is a constitutional court also means that these orders can impact other states, especially in states also ruled by the Bharatiya Janata Party (BJP) that have brought in similar laws. While the Allahabad High Court certainly needs a course correction in the face of the latest guidelines issued by the Supreme Court, this is expected to be a long drawn legal battle as we will see the constitutional validity of these conversion laws being challenged and debated in the apex court of the country. Until then, , the precarity of interfaith couples will only going to increase in the absence of any safeguards, either from society or the higher judiciary.

Representative table analysing some of the orders:

Table of other similar orders:

(The author is part of the CJP’s Legal Research Team)

Related:

CJP, other rights groups challenge Maharashtra Govt GR setting up a Committee to “monitor inter-faith marriages”

CJP’s amended petition allowed, CJP also challenges ‘love jihad’ laws of 5 more states

Here’s how CJP tracks hate crimes against those who dare to love

The post Why are Allahabad HC’s orders refusing police protection to inter-faith couples, wrong in law and principle? appeared first on SabrangIndia.