Over the past few years, Indian civil society has been badly hit by use of laws such as Unlawful Activities Prevention Act (UAPA), sedition, FCRA, NSA, AFSPA* and various other similar laws. UAPA is possibly the most extreme due to its stigmatising effect and the Himalayan problem of getting bail, used wantonly in a large number of cases such as the Bhima Koregaon case, Akhil Gogoi case, the recent Andhra Telangana arrests, the Hathras rape case, Delhi CAA-NRC cases, Reliance workers cases, Jharkhand Adivasi cases and a multitude of others.

This was coupled with the Zahoor Vatali Judgment of the Supreme Court (2019) which made bail virtually an impossibility. It is in this context that the Delhi High Court Judgment has arrived as succour and solace not only to those arrested but to civil society as a whole.

The facts are known to all followers of the Shaheen Baug and related protests concerning CAA/ NRC. Peaceful in Delhi and across the country were led by women and students and went on for months. A riot took place–according to most neutral observers started by the saffron brigade and helped by complicit actions of the police. The protests were sought to be turned on their head by the authorities claiming that Muslim groups and certain radical students were the ones who conspired and helped carry out the riots. This was despite clear evidence to the contrary. FIRs were lodged and students including Natasha, Devangana and Asif were arrested under the infamous FIR No. 49 of 2020 apart from other FIRs. Initially the charges were under ordinary criminal law but after that UAPA was added more particularly Sections 15, 17 and 18 of the UAPA dealing with terrorist acts.

The National Investigating Agency (NIA) took over investigation and the Special Court rejected bail. Appeals were filed in High Court which ultimately led to the Judgments on June 15, 2021.

There are three separate judgments but the lead Judgment is the one given in Asif’s case. While the Judgments only grant bail and the trial continues, their importance and the potentialities cannot be seen only in this limited context. Many of us are delighted because young, conscious and sensitive students have been set at liberty, finally. However, the Judgments go much beyond this and the opportunities opened up by these verdicts are immense. It is this context which I want to examine in the present piece.

The importance of these Judgments lie in their rigour, logic and creativity. Undoubtedly the Judgments, while discussing the facts in detail find that none of the accused were prima facie involved in any terrorist activities but here, I want to focus on certain aspects which go beyond the specificities of the case.

First, the context and purpose of the UAPA. The Delhi High Court goes into the history of the UAPA and comes to the conclusion that the Indian Parliament could only have enacted this law by taking recourse to entry 1 of List I of Schedule VII to the Constitution. Schedule VII deals with the division of legislative powers between the Centre and the States. List I deals with those issues concerning which the Parliament has the power to enact laws. Entry I of this list deals with the defence of India and allied subjects. Entry 2 of List 2 (the State list) deals with public order. The Court holds that since the Parliament could not pass a legislation concerning ordinary law and order issues (which only the State Assembly can enact),  therefore the UAPA should be interpreted in manner that it applies only in situations where the defence of India is threatened and not merely where a law and order or even public order situation arises.

The Court therefore observes:

“In our opinion, the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. Absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issuesrelating to the ‘Defence of India’.”

Thus, the Court, arrives at the very important conclusion that UAPA can only apply to cases which are severe as to affect the stability of the nation.

Second, and following from the above, the Court goes into Sections 15, 17 and 18 of the UAPA which Natasha, Devangana and Asif are charged under. These Sections form part of Chapter 4 of the Act dealing with Terrorist activities. It should be kept in mind that they are not charged with belonging to a banned organisation. Section 15 defines terrorist act, section 17 concerns raising funds for a terrorist act and section 18 deals with punishment for conspiracy to commit, advocate, etc. terrorist act(s). The Court observes that the words terror or terrorism are nowhere defined under the Act.

The phrase ‘terrorist act’ is sought to be defined under Section 15 but it is very broad and vague. Ordinarily such a vague provision would have to be struck down since criminal law has to be strictly construed and everyone should know what is an offence and what is not. However, the only way to treat this provision as Constitutional is by narrowing its ambit and giving a strict definition to it.

Therefore, terrorist acts can only include those acts which affect the community at large and have the impact on destabilising or attempt to destabilising the country. Ordinary law and order problems or even public order problems no matter how grave cannot fall within the definition of terrorist acts.

In the present case, since the violence attributable to these persons even if assumed to be true cannot partake the nature of terrorist act and thus the provisions of UAPA cannot be made applicable to these three accused. If the provisions of UAPA are not applicable, the stringent bail conditions prescribed under Section 43 (D) (5) will also not apply and thus their bail applications will have to be considered by examining their cases under the provisions of bail under ordinary criminal law.

Next, the Court says that even if the stringent bail conditions as applicable under UAPA are to be applied these provide that an accused shall not be released if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This, according to the Court means that the burden is on the prosecution to show that the accused is prima facie guilty. Dealing with the infamous Vatali Judgment of the Supreme Court, the High Court observes:

“The decision of the Hon’ble Supreme Court in Watali (supra) proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea; and as a sequitur, for assessing the prima facie veracity of the accusations, the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material placed with the subject charge-sheet. To bring its case within Chapter IV of the UAPA the State must therefore, without calling upon the court to draw inferences and conclusions, show that the accusations made against the appellant prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.”

This ingenious interpretation of the Vatali Judgment puts fetters on the prosecution from making wild and unsubstantiated allegations as they are prone to do in many UAPA cases. 

Further, the Court holds that the right to peaceful protest is a fundamental right. Now this is a Constitutional given and even the Supreme Court has recognised it time and again albeit with certain caveats. The importance of the Delhi High Court judgments lie in the fact that they use this premise to advance the logic and cleverly craft an argument which is as follows: Citizens have a right to peacefully protest for all kinds of causes. Of course, they do not have right to be violent. But just because people turn violent does not mean they are terrorists or are indulging in terrorist activities. Terrorism is something which is intended to destabilise the State and violence which occurs in one part of a large city like Delhi does not amount to destabilising the State and thus does not amount to terrorism. Those who indulge in or provoke violence can of course be tried under the Penal Code but not under UAPA.

Lastly, the Court deals with Najeeb’s Case (2021) in which the Supreme Court had held that a person jailed under UAPA is not denuded of his fundamental rights, the right to speedy trial being a fundamental right and the undertrial is therefore entitled to be released on bail if the trial is likely to take very long. The accused before the Supreme Court was in jail for 5 years and the maximum punishment he could have been awarded would have been 8 years. The Court released him on bail. In the Delhi case, the State argued that the accused were in jail for only one year and thus even according to Najeeb’s case there had not been prolonged incarceration. The observations of the Court are striking:

“Should this court wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated, before it steps in and wakes-up to such violation? We hardly think that that would be the desirable course of action. In our view the court must exercise foresight and see that trial in the subject chargesheet will not see conclusion for many-many years to come; which warrants, nay invites, the application of the principles laid down by the Hon’ble Supreme Court in K. A. Najeeb.”

This is a very crucial point for all cases under UAPA. Trials take a long time and Najeeb’s case was sought to be interpreted to mean that only if a person is in jail for a very long period that she could be released on bail. The High Court judges use their judicial acumen to refute this and say that even if a person has been in jail for a short period, if looking at the overall circumstances the Court is of the opinion that the trial will take a long time the accused even under UAPA can be released on bail.

The Division Bench comes to the conclusion that the provisions of UAPA can only be used in exceptional circumstances. It is altogether another matter that UAPA itself does not deserve to remain on the statute books. We need to also bear in mind that the stringent bail conditions of UAPA deal with two distinct nature of cases. Terrorist acts with which the present case is concerned with and membership and activities of terrorist organisations which is an altogether different scenario. Of course, some of the concerns dealt with in the present Judgments will also extend to issues concerning terrorist organisations under which many other UAPA cases such as the Bhima Koregaon case, the Andhra Telangana cases, etc. But to what extent the force of these judgments is fully applied to these cases will have to be watched. 

Justice Mridul and Justice Bhambhani who decided this matter need to be saluted. As do the impressive legal team that led the defence for all three student activists. Obviously, Judges do not decide matters in a socio-political vacuum which affects them as much as it affects ordinary people. The following observation from the Judgment makes it clear:

“We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it wouldbe a sad day for democracy.”

Undoubtedly these Judgments bring cheer to a large number of people but we should not forget that Supreme Court’s Vatali Judgment resulted from overruling an excellent Delhi High Court Judgment. We should cautiously await the next developments but it may be that the times they are a changing even in the Supreme Court. Hopefully this change for the better, towards constitutionally protected freedoms will endure for long.

*Foreign Contribution Regulation Act, National Security Act, Armed Forces Special Powers Act

(The author, Mihir Desai is a senior advocate, Bombay High Court, involved in battling several cases dealing with the protection of constitutional freedoms and civil liberties including defending some of the accused in the Bhima Koregaon case)

The post Creative understanding of the UAPA grants freedom from jail for activists: Delhi HC appeared first on SabrangIndia.

“86. The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.”[1]

The above mandate of the Supreme Court in the famed Hadiya case has been completely bypassed  in the UP Ordinance of love jihad. And the gloves are off. As soon as the UP Ordinance concerning love jihad was passed (November 2020) arrests have begun and so has started the vigilante interference in purely private, voluntary, adult interfaith marriages which do not even involve conversion. No doubt even before and without the law, vigilante groups were already issuing and at times carrying out threats. Many times this task was left to the family members  and at times to the khap panchayats with the valorisation of honour killings. Undoubtedly the state authorities encouraged this  process and even prior to  the Ordinance, cases were filed many times by relatives claiming adult voluntary marriages to be kidnapping, rape and connected offences. 

However now, the UP Ordinance, in effect legitimises this violence with state sanctity being taken to an unprecedented higher level. The stamp of legal approval to all kinds of harassment and targeting  has been given through this Ordinance. Unlike what the law pretends to do, it in fact has no real connection with  fraudulent, coercive or induced conversions. The purpose of the law is to stop conversions altogether from Hindu religion to any other, the purpose is to put an end to interfaith marriages especially if the man belongs to a religion other than Hinduism and of course the purpose is to facilitate conversions from other religions/ faiths to Hindu religion- by force, fraud or otherwise.   The object   of the law is to facilitate mob violence and generate an increased hatred towards Muslims and Christians and increase the victimisation of these communities. The other obvious purpose of the law is  to further entrench both patriarchy and caste system.

Many other state governments ruled by the BJP, such as Madhya Pradesh, Karnataka, Assam, etc. have promised to bring in similar laws very soon. Even those states like Madhya Pradesh which already have an anti conversion law are already excited by the prospect of having a much more draconian law.

The earlier anti conversion laws were euphemistically called Freedom of Religion Acts. This sugar coating is now off. The new laws are going to be known  at least in official discourse as anti love jihad laws- whatever that means.

Anti conversion laws are not new to this country though over the decades they have become increasingly draconian and virtually make conversion impossible. There are a large number of common features in these laws while at the same time there are some major differences. In this Article, I will chart the course of these laws and  attempt to make out a case that these laws, seen historically, are  a transformation from a hesitant Hindu right wing nationalism to a highly bellicose- no holds barred avatar evidenced at present. Initially the declared target was primarily the converting Christians but over the decades the moving finger of these laws are also increasingly  targeting Muslims.

Very peculiarly, these are laws whose supporters and critics both rely on the fundamental right of freedom of religion as the reason to justify and oppose the laws. What is wrong with stopping conversions through force or fraud? Obviously nothing. But it depends on how force or fraud or allurement is defined. The definitions are so broad that they include everything. If I read the Bible, on my own, and get convinced by its tenets and want to follow the Christian faith, I still need to inform the authorities, file declarations and possibly convince them that my knowledge of Christianity is adequate for me to follow that religion. On the other hand, if I want to continue following the Hindu religion I need not convince anyone about my knowledge of Hinduism. My birth justifies it.

On the face of it, these laws  may appear neutral. Take the example of  cow slaughter laws which are justified on grounds of economic necessity but which are nothing less than an upper caste, Hindu majoritarian agenda being  carried out in practise. Similarly, the anti conversion laws are justified on grounds of freedom of religion but in actual practise, they do the exact opposite. As set out much earlier by South Asian Human Rights Documentation Centre:

“ There is undoubtedly no grounds to justify conversions brought about by violence or other equally illegitimate means of coercion. These violate the freedom of conscience guaranteed by Indian Constitution and prescribed in international human rights norms. However, the language adopted by the anti conversion legislations goes far beyond the protection of this right and in no way appears to be motivated by the desire to protect the freedom of conscience. Instead the danger of discriminatory abuse in their application is very real. The terminology used by these legislations transforms them from their purported role as protectors of the Constitutional rights to the violators of these very guarantees.”[2]

This was written in 2008. Now the situation, as will be explained below, is much worse.

One also needs to understand that at times  weather a law is draconian or not  does not depend so much on its wordings but on the socio economic political context and the extent of arbitrary power it gives to the executive. In the context where a majoritarian right wing Hindutva hegemony is established not just in the political sphere but also in the bureaucracy, the police force and more so within society at large, the law becomes nothing else but a weapon to target minorities and women. Traditionally Constitutional Courts have largely held that potential misuse or even actual misuse of a law is not a ground to strike down a legislation. However in recent times there has been a change- especially as was viewed in the Supreme Court judgment concerning decriminalising homosexuality[3] where one of the grounds on which some of the judges held it to be unconstitutional  was its effect and misuse.

In my view, the UP Ordinance along with similar other laws, apart from being draconian are also Unconstitutional. The Unconstitutionality flows from the following:

a. They are in violation of Article 25 of the Constitution- freedom of religion;

b. They violate Article 14 being manifestly arbitrary;

c. They also violate Article 15 being discriminatory against women and against scheduled castes and scheduled tribes;

d. They are in violation of freedom of speech and expression- Article 19(1) (a)

e. They violate right to privacy and personal liberty- thus in violation of Article 21

f. They violate the principal of secularism thereby violating the basic structure of the Constitution;

g. They are also unconstitutional by being overbroad and vague.

It is important to get one thing out of the way. In none of the laws including the UP Ordinance is there is an outright ban on conversions. Of course the UP law flirts with such a ban while dealing with marriage. Such a complete  ban would be struck down by any Constitutional Court. That is because my right to convert is essentially an inherent component of my freedom of conscience which is guaranteed by the Constitution. Article 25 (1) of the Constitution says: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” It is also component of my right to privacy – my right to choose which religion to belong to or weather to belong to any religion at all.

On the face of it,  Article 25 of the Constitution, in the context in which  we are discussing, guarantees two fundamental rights. One, my right to believe in whatever religion I want including my right not to believe in any religion and to shift allegiance to any other religion- this is what is meant by freedom of conscience. Second, the right to ‘propagate’ religion- which obviously means the right of anybody  to spread the tenets of a religion and convince others to join that religion. Thus I have a right to convert myself into a believer of a different religion   and you have a right to convince me to believe in another religion and change my religion. This is precisely what is meant by ‘propagating’. While the first component  has been accepted by the Supreme Court as a fundamental right  in Stainislaus Case[4], the second component has been held not to be a fundamental right. Thus what the Supreme Court has said, in my view wrongly, is that while I have a fundamental right to convert, the fundamental right does not extend to convincing others to convert. This view of the Supreme Court in my opinion is wrong. 

Obviously exercise of fraud or force cannot be allowed. I have a fundamental right to carry on any vocation but I don’t have the fundamental right to carry it on in a fraudulent manner. I have a fundamental right to settle in any part of India but that does not extend to my forcibly occupying your house. But if Article 25 protects my fundamental right to ‘propagate’ it obviously would include my right to propagate through a dialogue or teaching others to see my point of view concerning a particular religion.  In fact, during the Constitutional Assembly debates there was a heated argument along with an amendment being moved to drop the word propagate from the Article. However, a large number of members including members supported the inclusion of this word and T.T. Krishnamachari said:

“It does not mean that the right to propagate ones religion is given to any particular community or people who follow any particular religion. It is precisely open to the Hindus and the Arya Samajists to carry out their Suddhi propaganda as it is open to the Christians, the Muslims, the Jains, the Buddhists and to every other religionist so long as he does it subject to public order, morality and other conditions that have to be observed in any civilised Government. So it is not a question of taking away anybody’s rights.”      

Pandit Laxmikant Maitra argued:

“If we are to restore our sense of values which we have held dear, it is of the utmost importance that we should be able to propagate what we honestly feel and believe in. Propagation does not necessarily mean seeking converts by force of arms by the sword or by coercion. But why should obstacles stand in the way if by exposition, illustration or persuasion you could convey your own religious faith to others?”                           

K.M. Munshi went further and said that even if the word propagate was removed the fundamental right of freedom of speech and expression would allow religious communities to persuade other people to join their faith. The word propagate remained in the Constitution. 

However, even going by the first component, namely a person’s right to change his religion,  the present UP Ordinance is Constitutionally bad as we discuss later. In any event, the Ordinance is anti women and discriminates against women, giving them no agency whatsoever and is therefore bad even on this count.   

If a law was really meant to advance freedom of religion, such a law would penalise threats and violence against voluntary conversions, such a law would facilitate inter faith marriages. This is not what any of these laws do.

But first let us look at how historically these laws have evolved. It is interesting to note that till the UP Ordinance came about all earlier laws were called freedom of religion laws.

Historical Journey

Orissa and Madhya Pradesh

In 1967, Orissa became  the first State Government to enact anti-conversion law (styled of course as Freedom of Religion Law), soon to be followed by Madhya Pradesh in 1968. Both were ruled by coalition governments having Jana Sangh as a strong component. Essentially  these laws criminalise conversion through force, fraud or inducement (the Madhya Pradesh law used the word ‘allurement’). Force included threat of divine displeasure, fraud includes misrepresentation and inducement/ allurement  includes any gift or gratification in cash or kind and will include any benefit- pecuniary or otherwise. The punishment for violation  or abetment  would be imprisonment up to 1 year or fine up to Rs. 5000 or both. If the crime was in respect of a minor or a person belonging to SC/ ST community or a woman the punishment would be double. Prosecution could not be launched without prior sanction of district magistrate or person of equivalent rank.

While no one can argue that forcible or fraudulent conversions should be permissible , the definitions of force, fraud and allurement are very vague and any kind of persuasion can be covered by this. Similarly, the denial of agency to women and to persons belonging to SC/ ST communities began at this time. While marriage per se was not directly included, inclusion of women as specially vulnerable to conversion had the underlying rationale of attacking  conversion connected  to  marriage.  

However under the Orissa Act there was no requirement of intimation or permission of any authority for conversion. Compared to the laws which have subsequently been passed this was a relatively benign law though still Constitutionally suspect. 

The Madhya Pradesh Act had one major addition to the Orissa provision. It prescribed that whoever performs the act of conversion as a priest or otherwise or helps in converting any person will within such time after the conversion, communicate the fact of conversion to the District Magistrate failing which such person would be liable to be punished by imprisonment up to one year.   This was how for the first time the issue of intimation was introduced. Of course even here, the intimation had to be subsequent to the conversion and not prior and the responsibility of intimation was on the convertor not on the person getting converted.  Secondly, under these laws the converted person did not suffer any liability. He/ she could not be prosecuted and neither was the conversion automatically void if conditions were not satisfied.

In 1969, Madhya Pradesh formulated rules under the 1968 Act. The Rules prescribed that intimation to District Magistrate had to be given within 7 days after conversion, the District Magistrate was to keep a Conversion Register and was to give a report of conversions to State Government  on 10^th of every month. Orissa did not formulate any rules at that time.

Both the laws were challenged in respective High Courts. Madhya Pradesh High Court upheld the law, while the Orissa High Court struck it down on two grounds. First, it held that the definition of “allurement’ was very vague and would violate freedom of religion provisions. Secondly, it struck down the Act on the ground that the State Government did not have legislative competence to enact such a law. Schedule VII of the Constitution provides three lists dealing with legislative competence. List 1 provides for those matters concerning which only the Central Government/ Parliament can enact the law- List 2 is the State List and List 3 is the Concurrent list. Entry 97 of List 1 says that in respect of those items not listed anywhere else the Central Government alone will have power to enact laws. Since religion and related issues are not listed anywhere else the argument was that the Central Government alone could have passed such a legislation and since the Orissa law was passed by the State Government it was without legislative competence. The High Court upheld this argument and struck down the law.  

Finally the challenge reached the Supreme Court and it was decided in  Stanislaus’s case by a five judge bench presided by the then Chief Justice A.N. Ray. The Supreme Court upheld the laws by holding that these laws do not interfere with the fundamental right of religion. It observed:

“20. We have no doubt that it is in this sense that the word ‘propagate’ has been used in Article 25(1), for what the article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.”

I am still trying to understand this passage. But what is seems to suggest is that if I try to convert you I will be breaching your freedom of conscience. That would be true if I did it by force or fraud- but how does it breach your freedom of conscience if it is done through persuasion and through dialogue?

Remember, in these laws the punishment was only for the convertor and not for the converted. Even then, the Supreme Court did not discuss the word ‘propagate’ in the context of the Constitutional Assembly debates. Besides, it appears that freedom of speech and expression was not raised as a ground. The Court also did not examine the impact of such laws on voluntary conversions.

As regards the legislative competence argument, the Court held that the Acts were passed to deal with public order which fell within the State list and so the State legislation had competence to pass the law. Meaning thereby that the purpose of the law was to prevent public disorder.  Why should an individual conversion be a matter of public order?  From the judgments there do not seem any statistics placed before the Court concerning widespread or any disturbance of public order due to conversion.

After about 12 years of this Judgment the Orissa Government in 1989 framed Rules under the Act. The Rules went way beyond the Act. The Orissa Act  as mentioned above only deals with prosecution for conversion by force, fraud and allurement. It does not deal with intimation or permission. But Rules, which travel beyond the mandate of the Act brought all this in. This is jurisprudentially unacceptable.

The Rules require that every person intending to convert the person who is changing his religion will file a declaration prior to conversion before the District Magistrate.  The religious priest, by whatever name called,  will intimate 15 days in advance to the District Magistrate the place, time and date of conversion along with the names of the persons to be converted. Under Rule 5(3) which was added in 1999, The Magistrate will intimate the Superintendent of police who in turn will inform the local police station which will conduct an enquiry into any objections and submit the report to the Magistrate. What the Magistrate will do with this report is not mentioned. If a priest does not communicate the information a fine of Rs. 1000 can be imposed. Like under the Madhya Pradesh law the Magistrate is required to maintain a register of conversion and give monthly report to the State Government.    The District Magistrate is also to keep a register of all religious institutions and organisations in his district which propagate religious faith and all individuals involved in such propagation.

These Rules were totally unconstitutional. The Act did not provide for intimation or permission- prior or subsequent. The Rules were challenged in the Orissa High Court by Rev. Satya Ranjan Manjhi in 2003 as being beyond the rule making power. However this was rejected on two counts. The Court held that the rules were only towards implementing the Act and were therefore not ultra vires the Act.  This in my opinion is in completely wrong as explained above. If the Act had provided for intimation or permission, the mechanism for such intimation could have been provided by the Rules. However the Orissa Act does not require any intimation or permission.  Second ground given by the High Court to reject was that  the persons who had filed the Petition were those who wanted to convert others and therefore at their request such Petition could not be entertained. (AIR 2003 ORR 163)

The matter was carried to the Supreme Court (2003 7 SCC 439). The challenge in Supreme Court seemed to be confined to Rule 5 (3) which requires enquiry to be conducted by the police. The Court, in a cryptic order negatived this contention and upheld the validity of the Rule.

The Judgment is also wrong on various grounds. The Rules were patently ultra vires the Act which did not put any obligation on the convertee and did not require any prior or subsequent intimation to the authorities. An individual private decision has now to be monitored by the State. Of course, other provisions of the Rules were not challenged before the Supreme Court and thus the Supreme

Court has not opined on them. 

Arunachal Pradesh

Arunachal Pradesh was the next in line which passed the law in 1978. Here, the focus was on the term ‘religious faith’ which is defined to include ‘indigenous faith.’

“Indigenous faith” means such religions, beliefs and practices including rites, rituals, festivals. Observances, performances, abstinence, customs as have been found sanctioned, approved, performed by the indigenous communities of Arunachal Pradesh from the time these communities have been known and includes Buddhism as prevalent among the Monpas, Membas, Sherdukpens, Khambas, Khamptis and Singphos, Vaishnavism as practiced by Noctes, Akas and Nature worships, including worships of Donyi-Polo, as prevalent among other indigenous communities of Arunachal Pradesh.”

Religious faith was defined to include indigenous faith. Conversion from one faith to another by fraud, force or inducement is prohibited and punishment is up to two years with fine up to Rs. 10,000. The convertor is required, after the conversion to send intimation to the authorities and failure to do so would render the person liable for 1 years imprisonment or Rs. 1000 fine. At least the Arunachal Pradesh Act gave more agency to women and those belonging to SC/ ST communities as no higher punishment was provided for converting them. Rules have not been framed under this Act till date.

Chhattisgarh

When Chhattisgarh was carved out of Madhya Pradesh in 2000, it retained the Madhya Pradesh Freedom of Religion Act. In 2006, this law was amended to provide that the convertor  will have to seek permission of local district magistrate 30 days in advance who may accept or reject the request after studying the case. Conversion without permission will render the convertor liable to imprisonment up to 3 years. Once conversion takes place, within one month the District Magistrate has to be communicated about this fact. Violation of this provision would render the person liable for imprisonment of up to 1 year.

The Amendment also provided that return by  a person to the original religion of ancestors will not amount to conversion. This, for the first time legally paved the way for Ghar Wapsi.

The punishment was enhanced from one year to three years in normal case and from two years to four years in case of conversion of women, minors and those belonging to SC/ ST categories.

No offender can be released on bail unless the Public Prosecutor has been heard.

Tamil Nadu

Tamil Nadu passed an anti conversion law in 2002. This followed the pattern of other laws and required subsequent intimation of conversion to the authorities. It appears that this Act was passed when then chief minister of the state, Jayalalitha was seeking support of the BJP. There were major protests against this law. In 2004, once the BJP was out of the picture as far Jaylalitha was concerned, the law was repealed.

Gujarat

Gujarat Freedom of Religion Act was passed in 2003. Conversion by force, fraud and allurement was prohibited. Punishment for offence is up to three years imprisonment and in cases of convert being minor, woman or person from SC/ ST category the punishment is  up to four years.

Section 5 for the first time specifically brought in ‘prior permission’. As mentioned above, this was subsequently followed by Chhattisgarh while amending its law.  The convertor or any person helping with such conversion will seek prior permission of District Magistrate. The convert, on the other hand will intimate to the District Magistrate after the conversion about the fact of such conversion. Failure to comply with either will render the person concerned liable to imprisonment for 1 year fine or fine of Rs. 1000 or both. This is the first time that the person who gets converted is penalised and that too if she does not inform the District Magistrate- this would be irrespective of weather the conversion is with force, fraud or allurement or without it. Prosecution cannot be launched without the prior sanction of District Magistrate or equivalent authority.

In 2006 an Amendment Bill was passed by the Gujarat Assembly to state that conversions within a religion amongst denominations would not be treated as conversion and thus such change will not attract provisions of the law. This included Shias and Sunnis amongst Muslims, Catholics and Protestants amongst Christians. The main opposition was to the treatment of Jains and Buddhists as Hindus. Thus if a Jain became a Hindu or similarly a Hindu became a Buddhist this would not amount to conversion. Due to opposition especially from the Jain community who protested against being shown as part of the Hindu religion, this Amendment had to be withdrawn.

In 2008, the Gujarat Rules were passed. Under the Rules, anyone who intends to perform any ceremony as a priest or organises such ceremony or directly or indirectly takes part in such ceremony has to take prior permission of the District Magistrate for such conversion. The District Magistrate can make such enquiries as required and either grant permission or refuse it within one month of the application. If offence is committed he can authorise a police officer to launch prosecution.   The person who is getting converted or his guardian is required to give intimation of such conversion to the District Magistrate and failure to give such intimation will make him liable for prosecution. Finally, the District Magistrate is required to file quarterly report to the State Government.

This law has been challenged in the Gujarat High Court and the Petition is pending.

Himachal Pradesh

In 2006 Himachal Pradesh passed its own Freedom of Religion Act. This was enacted when the Congress Party was at the helm.

The Act followed most of the other laws in providing that conversion through fraud, force or inducement was criminalised. It further went on to say that such conversion will be deemed to be invalid. This was the first time a law brought in deemed invalidity. Thirty days prior notice is to be given by the convertor to the District Magistrate but not so if a person is reconverting to his original religion. Upon notice being given, the District Magistrate can get the same enquired into by such agency as may be necessary.  Punishment for violation is two years or fine of Rs. 25,000 and if the violation is in respect of woman, minor or person of SC/ ST category the punishment would be 3 years imprisonment with fine of Rs. 50,000/. Prosecution can only be with the sanction of District Magistrate.

In 2007, the Himachal Pradesh Government came out with the Rules. Any person wanting to be converted has to give advance notice to the District Magistrate. Within 15 days the Magistrate can get enquiries done concerning the intended conversion or conversion from any agency and record his findings. The District Magistrate also has similar powers concerning any complaint received about a conversion or proposed conversion. If the District Magistrate finds that conversion is due to force or inducement or without notice the matter will be forwarded to the Police Station for registering a case. After Investigating the case the police office can place the matter before the sanctioning authority who will grant or refuse sanction within 7 days. In addition, the District Magistrate is required to submit a monthly report to the State Government.

Rajasthan

Rajasthan passed a Freedom of Religion Act in 2006. However the Governor refused to give her assent. The Bill was sent to the President for his assent but even that is pending. In the meanwhile, a case concerning an individual reached the Rajasthan High Court which on some basis came to the conclusion that conversion was a major issue and expanded the scope of the Petition and issues directives concerning conversion which are interesting to note.

This extract is taken from Chirag Singhvi v. State of Rajasthan, 2017 SCC OnLine Raj 3180 : (2018) 3 RLW 2270 at page 2290

“46. As per contention of the petitioner, now a days the problem of forcible conversion of religion became serious problem because teenagers (male or female) are forcibly converting the religion only for the purpose of solemnizing marriage, therefore, the State Government felt it necessary to enact Rajasthan Dharma Swatantrya Act, 2006, but it has not been implemented for want of assent since 2006, therefore, we are of the opinion that while protecting the fundamental right of freedom under Article 25 of the Constitution of India, some guidelines are necessary to check forcible conversion of religion because religion is a matter of faith and not of logic. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution extends this guarantee because faith constitutes the religious consciousness of the followers. There is no dispute that every citizen has a fundamental right of freedom of religion under Article 25 of the Constitution of India, but at the same time, it is the duty of every citizen to protect the feelings of other religion and not to act contrary to the provisions of Constitution. Therefore, we deem it appropriate to give some guidelines to check the problem of forcible conversion of religion. Consequently, following guidelines are hereby issued, which reads as under:

(A) An individual, who wishes to change his/her religion will be at liberty to change the same after attaining the age of majority.

(B) One, who intends to change his/her religion should satisfy himself/herself about niceties of conversion of religion.

(C) The authority/person, who is performing ceremony of conversion of religion, should first ascertain whether the person concerned is desirous to change the religion, is having full faith in the newly adopted religion and should also ascertain whether he/she is under any threat of other person or not and if finds that it is forceful conversion, then the authority/person shall give information to the District Collector/SDO/SDM, as the case may be.

(D) The person, who is desirous to change his/her religion, shall give information to the District Collector/SDM/SDO of the concerned city and Sub-Divisional Area before conversion of religion.

(E) The District Collector/SDM/SDO shall put such information upon the Notice Board of its office on the same day.

(F) The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion. For that, the authority/person concerned before whom such marriage/Nikha is being solemnized, shall ensure whether information of conversion has been made or not and thereafter assist in solemnizing the marriage/Nikah

(G) The District Collector upon receiving information of forceful conversion shall take appropriate action in accordance with law, so as to check the forceful conversion.

(H) It is made clear that if any person is desirous for publication of change of religion in the Gazette, he/she shall take recourse of Press and Registration of Books Act, 1867.

(I) It is also directed that if any marriage in the form of any nomenclature of any religion will be performed after conversion in contravention of above guidelines, then such marriage of any nomenclature can be declare voidable upon complaint of aggrieved party.

(J) That aforesaid guidelines shall remain operative until the Act of 2006 or any other act governing the subject matter came into existence in State of Rajasthan to protect the forcible conversion of religion.”

Jharkand

Jharkhand passed a Freedom of Religion Act in 2017. The Act like other laws proscribes conversion by force, fraud or allurement. Violation is penalised by 3 years imprisonment or fine of Rs. 50,0000. Violation in respect of women, minors and members of SC/ STs has 4 years imprisonment and fine of Rs. 1,00,000/-.

Act requires the convertor or any person who organises such conversion or takes directly or indirectly part in such conversion ceremony is required to take prior permission of the District Magistrate. The person who gets converted has to intimate about such conversion to the District Magistrate. Failure to do either of the above can lead to imprisonment of 1 year or fine of Rs. 5000/-.

The offences under this Act are cognisable and (for the first time specified) as non bailable. Prosecution can only be launched after prior permission of District Magistrate.

In 2017 itself the Rules were framed. They require 15 days advance notice for permission to the District Magistrate who will get enquiry made from such agency as required and record his findings. The person who is getting converted has to intimate to the District Magistrate within 7 days of conversion.

Rules require District Magistrate to maintain registers of religious orgnaisations and institutions in the District and gives power to the District Magistrate to inspect the premises and records of such institutions and also gives him power to get list of all those who get some benefit from such institution/ organisation. If any offence is committed or suspected to be committed, the District Magistrate can ask police to investigate and if required grant sanction for prosecution.

Uttarakhand

Uttarakhnad  came out with its version of anti conversion law in 2018. This law went much beyond the other laws in some respects. To begin with of course it penalised conversion based on force, fraud, allurement, undue influence, etc. Conversion by marriage was for the first time prohibited. Thus even if a person converted of his or her own accord at the time of  marriage or for marriage such conversion is prohibited. It is important to look at the section.

“3. Prohibition of conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. – No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet or conspire such conversion:

Provided that, if any person comes back to his ancestral religion, shall not be deemed conversion under this Act.”

Similarly, the proviso quoted above, allows what is known as Ghar Wapsi.

Allurement was defined much more widely than in other laws. “Allurement” means and includes offer of any temptation in the form of any gift or gratification or material benefit, either in cash or kind or employment, free education in reputed school run by any religious body, easy money, better lifestyle, divine pleasure or otherwise;”

“Undue influence” means the unconscientious use by one person of his power or influence over another in order to persuade the other to act in accordance with the will of the person exercising such influence;”

A complaint can be made by any aggrieved person (i.e. the person who is subjected to conversion), parents or his/ her brother or sister to the Court.

Punishment is not only enhanced but for the first time minimum punishment is provided. Thus an ordinary offence would involve punishment of up to five years with minimum punishment of one year imprisonment and fine. If the offence is in respect of a minor, woman or person belonging to SC/ ST community the punishment is up to seven years with minimum punishment of 2 years imprisonment. A marriage performed/entered into for the sole purpose of conversion would be declared null and void by the Court.

The person who is getting converted has to give one months advance notice to the District Magistrate. Failure to do so will render the converted person liable to imprisonment for up to one year with minimum sentence of one year.  The person converting has to also give similar notice. Failure will render him liable to two years imprisonment with minimum of six months. The Magistrate will then get examined through police the real intention of the conversion. Prosecution can only be with prior sanction of district Magistrate. If any institution or organisation commits the offence its office bearers would be penalised and the registration of such organisation or institution under any law can be cancelled and such organisation cannot accept any donation or contribution from India or abroad. Every offence under the Act is non bailable.

“When an offence is committed under this Act, each of the following shall be deemed to have taken part in committing the offence and to be guilty of the offence and shall be charged as if he has actually committed it, that is to say,-

(i) every person who actually does the act which constitutes the offence;

(ii) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(iii) every person who aids or abets another person in committing the offence;

(iv) any person who counsels or procures any other person to commit the offence”.

Similarly, for the first time burden of proof is shifted onto the accused. “The burden of proof as to whether a religious conversion was not effected through misrepresentation force, undue influence, coercion, allurement or by any fraudulent means or by marriage lies on the person so converted and where such conversion has been facilitated by any person, on such other person.”

Rules have been framed in 2018. There is a further stringency in burden of proof.

“Subject to the Section 13 of the Act, if any person, priest, institution or organisation convert/make conversion from misrepresentation, force, undue influence, coercion, allurement or any other fraudulent method or by marriage, the burden of proof shall lie on such person who have made the aforesaid conversion and when any person, priest, institution or organisation has ensured such conversion then the burden of proof shall lie on such person, priest, institution or organisation. Explanation. – For the purpose of Section 3 and Section 6 of the Act wherever the word ‘marriage’ occurs in the Act, marriage means marriage done as a consequence of conversion from one religion to another religion, which is done with the intention of misrepresentation, force, coercion, allurement or any other fraudulent means.”

Of course, the marriage provision seems to have been diluted by penalising only those conversions which are with the intention of misrepresentation, force, fraud, etc.

UP Ordinance 2020

The Uttar Pradesh Ordinance which has generated much controversy broadly follows the Uttarakhand Act except for a few changes. The definition of allurement under the UP Ordinance also includes employment. Mass conversion is included for the first time and is defined to mean conversion of two or more persons.

Under this Act it is an offence to convert anyone ‘by marriage’ irrespective of weather the conversion is voluntary or not. Besides,  even trying to convince someone to convert is a crime.

Under the Uttarakhand law converting back to religion of ancestors will not amount to conversion. Under the UP Ordinance there is a slight modification and the word ancestor is not used but it will not amount to conversion if a person converts back to his/ her immediate prior religion. Of course how immediate is to be defined is yet to be seen in practice and may be specified when rules are framed.

First Information Report can be filed by any aggrieved person or any person related by blood, marriage or adoption. Punishments are of three types. An ordinary offence would render the person liable to imprisonment of upto 5 years with minimum of 1 year sentence. If the conversion is of a woman, minor or person belonging to SC/ ST community the punishment is up to 10 years with minimum punishment of 2 years and in case of mass conversion the punishment is up to 10 years with minimum of two years sentence.

Any marriage done for the sole purpose of conversion can be declared void by the Court. Thus apart from illegality and penal consequence involved in ‘any’ conversion ‘by marriage’ (which illegality does not depend on whether the marriage is for the sole purpose of conversion) such marriage can be treated as void if it is dome for the sole purpose of conversion.  It is impossible to understand what is meant by conversion by marriage- is it before, is it after, is it during? This leaves of course a lot of scope for the police to interfere.

All offences are non bailable and to be tried by Sessions Court.

Any person wanting to convert to another religion will have to give 60 days advance notice to the District Magistrate. Failure to do this will render the conversion void and make the person liable for imprisonment up to three years with minimum sentence of 6 months.  Any person who carries out the conversion has to give 30 days advance notice for conversion. Any violation will render conversion void and the violator can be punished for 5 years imprisonment with minimum of 1 years imprisonment.  The District Magistrate will then have an enquiry conducted by the police to find out the true purpose of conversion.     

Section 9 requires post conversion communication. The coverted person is required to communicate to the District Magistrate within 60 days of conversion. This declaration is to contain all details including name, address, etc. This declaration will be exhibited on the notice board of the District Magistrate and the converted person shall appear before the District Magistrate within 21 days to establish identity and confirm the contents of declaration. The contravention of this provision will render the conversion illegal and void.

Similar to the Uttarakhand law, if any organisation or institution violates any provision of the Ordinance the persons in charge of such organisation will face penalties similar to those provided for other individuals and the registration of such organisation under any law can be cancelled. State Government is prohibited from giving any aid or grant to such institution.

Burden of proof under this law is shifted onto the person who has caused such conversion or facilitated such conversion.

Summary of Historical Evolution

While the initial laws required, at the highest, subsequent intimation, over the decades and more so in the last 15 years the changes have been drastic.

1. During the initial years, what was required was only subsequent intimation of conversion to the authorities, now not only  is the intimation to authorities   prior but there is also a requirement of prior permission and subsequent declaration with provision of public display of details and police enquiry. This by itself prevents people from exercising their freedom of conscience because of the fear of a purely private matter becoming a  public spectacle and threats and violence by public vigilante groups coupled with apprehension of arrest, etc.

2. The earlier laws did not penalise the person who gets converted and only the convertor was penalised- now even the  person getting converted is also penalised. This is a direct attack on the recognised fundamental right of freedom of conscience;

3. The earlier laws did not exempt  those who reverted back to the earlier religion or religion of ancestors but now that is made an exception allowing ghar wapsi;

4. While earlier there was no change in burden of proof, now the laws shift the burden on the convertor and convertee to prove that the conversion was without any fraud, coercion, undue influence, allurement, etc.

5. While earlier it was never mentioned that the offences were non bailable, now it is routinely provided that the offences are non bailable;

6. Earlier the definition of allurement was quite narrow- though still suspect, now any benefit given to the convertor- material or spiritual is treated as allurement

7. Earlier laws the punishment  was relatively mild while now not only is the punishment  higher but also there is a provision for minimum imprisonment;

8. Earlier even violation of the law did not lead to any impact on the conversion, now even not giving intimation renders the conversion invalid.

1. Earlier, the laws did not directly deal with marriage but now they not only deal directly with marriage and conversion but also prohibit all conversions on marriage. 

This does not mean that the earlier laws were Constitutional. All the laws, weather the milder version or the more stringent ones have Hindu majoritarian fundamentalism as its raison d’etat. The purpose was never to stop fraudulent or coercive conversions. The purpose has always been to stop all  conversions from Hindu religion while forcing Dalits to remain within the Hindu fold with all the atrocities and to ensure that Adivasis most of whom do not identify as Hindus are brought within the Hindu hegemonic fold. The object of all these laws has been to prevent interfaith marriages and to treat women as gullible chattel having no agency whatsoever. This does not mean of course that the fundamentalist Christians or Muslims treat them any better. Supreme Courts judgment in Stainislus is wrong, but even if it was upheld as good law the present enactments go much beyond it and are definitely unconstitutional.

Constitutionality

All the so called Freedom of Religion laws and more so the recent laws are unconstitutional on various grounds which are briefly narrated below. It is also important to understand that in 1977 when the Supreme Court decided the Stainislaus matter certain legal challenges and Constitutional tools  were not available  which since then have been developed by the Supreme Court itself giving additional strength to the arguments:

1. The first issue which arises is weather the Governor of UP could have enacted this law through an ordinance. The power to issue Ordinances is governed by Articles 123 (for the President of India) and 213 for the Governors. When the Assembly is not is session, the Governor has the power to issue Ordinance if he is satisfied that circumstances exist which render it necessary for him to take immediate action. So the first issue would be weather circumstances existed which rendered it necessary for the Governor to issue the Ordinance without awaiting Assembly Session. Factually, no such situation existed. There is no material to show that ‘love jihad’ is widespread or has been increasing at a rapid rate for such an Ordinance.  A Special Investigation Team of Kanpur had carried out a study in September, 2020 across all police Stations in the city which showed that there were 14 pending cases of interfaith marriages which had reached the police and out of these in 8 cases there was no case made out at all. In the balance 6 cases the investigation was still pending. This was the only concrete study. So on what basis the Governor came to the conclusion of any emergent need to act is anyone’s guess. However, the Courts have been reluctant to second guess the Governors when they issue Ordinances. While the Courts have said that such power of the Governor has to be sparingly used and can be judicially reviewed, in actual fact the Court’s have not struck down Ordinances only on the ground that situation did not exist for the Governor to act. In any event the Ordinance would lapse if it is not placed before the legislature withing 6 weeks of the legislature reassembling.  Besides, in this case the argument may be academic as the Courts are not likely to decide it with great speed and since NDA  has the majority in the state legislature it will be passed as an Act anyway. 

2. In 1977, the challenge under Article 14- the equality and equal protection clause was available only on the  test of reasonable classification (intelligible differentia) and  nexus between classification and object of the law. For a legislation to be valid against a challenge under Article 14, there had to be a classification between those included and those excluded by the legislation, such classification had to be reasonable and such classification needed to have nexus with the object sought to be achieved. Thus the only way to challenge a legislation under Article 14 was the hostile discrimination test.  However, in recent times the Supreme Court has also applied the ‘manifest arbitrariness’ test to strike down laws such as was done in Shreya Singhal[5] and Triple talaq cases[6]. This means that even if the classification is valid and has a nexus with the object sought to be achieved , a legislation can be struck down if it is manifestly arbitrary.

“101. … The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”[7]

The present Ordinance and the earlier laws are liable to be struck down on the ground that many of their provisions are manifestly arbitrary being excessive, disproportionate, irrational and without adequate determining principle. For instance provisions relating to punishments especially the minimum punishment, shifting of burden of proof, the definitions which excessively impinge on the rights, the requirement of public disclosure and police enquiry.

3. Now there is no controversy about right to privacy being a fundamental right coupled with the Supreme Court’s observation in Puttaswamy’s case[8] that this right applies not only to spatial privacy but also relational privacy and the right to make personal choices.

“323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

In Common Cause v. Union of India[9], a Constitutional Bench of the Supreme Court held:

“346. … Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives.”

In Navtej Singh Johar v. Union of India[10], the Supreme Court held:

“474. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices.

“613. The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the State has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

        The requirement of intimation and permission, declaration and police enquiry would directly impinge on a persons right to privacy. Even if some of these requirements are on the person converting and not on the person who is getting converted, still the impact would still be on the right to privacy of the person who is getting converted.

4. While Gopalan’s[11] dictum that each fundamental right is a silo had been dented considerably by the time Stanislaus judgment was given, its final funeral rites happened only in 1978 when Maneka Gandhi[12] judgment was delivered which provided the test of interplay of fundamental rights and  also provided substantive due process as a ground of challenge. For example, right to convert which earlier would be tested only on the ground of violation of freedom of religion can now also be tested on the basis weather it violates the fundamental right to speech and expression and also the fundamental right to life and personal liberty. Additionally, since early 1980s the meaning given to life and personal liberty has been much expanded including for instance the right to live with dignity. The anti conversion laws violate not only freedom of speech and expression but also attack dignity of persons who want to get converted to another religion.

5. At the time of Stainsilaus and for many decades before and  after that, a legislation which was challenged as being violative of non discrimination   clause in Article 15, which prohibits discrimination ‘only on grounds of sex, caste, religion’ was tested solely on formalist reading of that Article. Besides, on most occasions such legislations were justified as protective discrimination towards women. As Gautam Bhaita in his book The Transformative Constitution explains this is now changing especially from the time of the Supreme Court’s Judgment in Anuj Garg[13].  A few quotes from the Judgment would illustrate much better than any explanation I give.

“46. It is to be borne in mind that legislations with pronounced “protective discrimination” aims, such as this one, potentially serve as double-edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.

47. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a   compelling State purpose  Heightened level of scrutiny is the normative threshold for judicial review in such cases.”

This judgment is important not only on the issue of women’s rights but also other fundamental rights. It speaks of testing legislation not just on the basis of proposed aims ( declared or undeclared) but also on its effect. The aim may be to prevent forcible and fraudulent conversions but if the effect is to
 

6. Earlier, the misuse or potential misuse of law was never a ground for striking down a law. Since the judgment in Navtej Singh Johar’s  case[14] there is some progress  towards looking at the misuse and impact of the law. Besides, the Supreme Court has also observed that just because a legislation is facially neutral does not mean it is Constitutional. One has to look at the impact. Let us look at some observations from Navtej Singh Johar’s case which equally apply in the present case, both in terms of misuse and in terms of likely impact. 

“611. The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the State to the suppression of identities. The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain.

612. Sexual and gender-based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guarantees to them an equal citizenship. In decriminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices.

643.6. Even though Section 377 is facially neutral, it has been misused by subjecting members of the LGBT community to hostile discrimination, making them vulnerable and living in fear of the ever-present threat of prosecution on account of their sexual orientation. The criminalisation of “carnal intercourse against the order of nature” has the effect of criminalising the entire class of LGBT persons since any kind of sexual intercourse in the case of such persons would be considered to be against the “order of nature”, as per the existing interpretation.”

There are enough examples to show that the anti conversion laws have been used to target minority communities and have never been used to stop Ghar wapsi. Besides, now with the provisions permitting reconversion to original religion or religion of ancestors which can only mean Hinduism the targets are clear and the possibility of misuse is immense. In any event the distinction between those who want to convert to the ‘original’ religion and those who want to convert to a ‘new’ religion is patently arbitrary.  

7. The Supreme Court itself has held that an individual’s right to convert (i.e. the convertees right) is part of the fundamental right to freedom of religion and therefore any restriction on the right of the convertee to opt for another religion would be unconstitutional. Thus conditions such as prior permission or going into the intent or purpose of the convertee or penalising the convertee for any reason whatsoever is bad and liable  to be struck down as being in violation of the fundamental right to freedom of religion under Article 25 of the Constitution.  
    
8. Such a law in its implementation can have a chilling effect on fundamental rights. To quote what Justice Chandrachud in his concurring judgment in Hadiya’s case said[15]

“89. Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.”

9. Despite what Stainlaus Judgment says, even the right to convert someone through propagation, persuasion and through convincing is part of the fundamental right to freedom of religion. Obviously using force or fraudulent means cannot be permissible. But this can only mean physical force, threats  or coercion. Even direct financial deals may not be permissible. But the manner in which force, fraud, allurement, inducement, etc. are defined they go much beyond this. For instance, even giving someone the Bible to read can amount to allurement. Conversion by its very nature involves travel from one faith to another and a person would do that only if he is satisfied about spiritual betterment in present life or better life after death.  The provisions  are overbroad and include both permissible and impermissible methods of conversion.  In Navtej Singh Johar[16], the Supreme Court reiterating what was said in Shreya Singhal observed:

“259. In Shreya Singhal v. Union of India [Shreya Singhal v. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449] this Court, while striking down Section 66-A of the Information Technology Act, 2000, had observed that when a provision is vague and overbroad in the sense that it criminalises protected speech and speech of innocent nature, resultantly, it has a chilling effect and is liable to be struck down. The Court opined: (SCC pp. 169-70, para 94)

“94. … We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”

Treatment of Women, Dalits and Adivasis

All the anti conversion laws have treated women as ‘the weaker sex’, without any agency and susceptible to charms especially of the ‘Jehadi Muslim’ men. That is the reason why punishment for converting women has always been harsher than the punishment for converting men. The recent laws go even further  directly targeting marriage. Three kinds of cases concerning marriage and conversion have been agitated in Courts. Let us look at them.

Hindu men who already have wives marry Muslim women by converting and claiming that since they have converted they are entitled to marry a second time. This has been deprecated by the Supreme Court on at least two occasions in the cases of Sarla Mudgal[17]  and Lily Thomas[18] where the Supreme Court came to the conclusion that a Hindu man converting and getting married a second time will still  amount to adultery and the first wife does not lose any rights because of this.

The second type of cases are those  interfaith marriages where a party to the marriage or both parties approach the Court for getting protection from families or section of the people who are threatening them. By and large the Courts have supported such couples especially when they are adults. This was the situation with the recent cases decided by Allahabad High Court. Earlier in the case of Noor Jehan decided on December 16, 2014 and Priyanshi decided on September, 23, 2020, Single Judge Benches of Allahabad High Court had rejected the Petitions of the married parties seeking protection. These were the cases of conversion and marriage. The Court even went so far as to test the knowledge of the women about Islam and came to the conclusion that they did not know its basic tenets and therefore the conversion was invalid and thus the marriage was invalid. However in the case of Salamat Ansari  the Division Bench of the Allahabad High Court on November 11, 2020 overruled the judgments by holding that even if the conversion and marriage were under a cloud, an adult individual had a right to choose with whom she wanted to live, with or without marriage. Thus such persons cannot be prosecuted. Soon after this, on November 27, 2020 the Anti Conversion Ordinance was brought in. Because of this Ordinance, while the staying together of two adults of different faiths, with or without marriage and with or without conversion cannot be penalised, the conversion itself can be penalised and the bigger apprehension is even if there is no conversion, if there is a Nikah or church wedding it can be assumed that there is a conversion and punishment can still be inflicted.  

The third type of cases are an off shoot of the above when a parent or blood relative approaches the Court alleging that the daughter (never the son) is under unlawful detention or is being brainwashed by husband or boyfriend into converting. The culmination of these kinds of cases was the Hadiya Case[19] where Hadiya’s father filed a case in Kerala High Court which annulled the marriage and ultimately the Supreme Court had to step in and set aside the annulment and set Hadiya free. Some of the observations in this Judgment are quite relevant even from the perspective of the present debate.

“81. The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a “just” way of life or “correct” course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. ….The High Court did not take kindly to the conduct of Hadiya, noting that when it had adjourned the proceedings to issue directions to enable her to pursue her studies, it was at that stage that she appeared with Shafin Jahan only to inform the Court of their marriage. How Hadiya chooses to lead her life is entirely a matter of her choice. The High Court’s view of her lack of candour with the court has no bearing on the legality of her marriage or her right to decide for herself, whom she desires to live with or marry.”

88. The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the Judges can intrude. The High Court was of the view that at twenty-four, Hadiya “is weak and vulnerable, capable of being exploited in many ways”. The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the State nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the State. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty-bound not to swerve from the path of upholding our pluralism and diversity as a nation.”

Similarly, in the case of Shakti Vahini[20]  (Khap Panchayat), the Supreme Court observed:

“43. …when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognised under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognised, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy.”

If one goes by these dicta, the laws need to be struck down. Same is the situation for Dalits and Adivasis who are supposedly vulnerable to the tricks of the convertors and therefore require special protection. What is missed out in all this is that Dalits convert in order to get out of the atrocious caste system, in order to gain some dignity as human beings and in order to live as equals. Instead of dealing with these problems, what the anti conversion laws do is to even close the doors of dignity and equality for Dalits. As regards Adivasis there is a wrong presumption that they are Hindus. There are large number of studies done which go to show that in respect of many of the tribes, the customs the practices, the rites, the beliefs have nothing to do with Hinduism. However there is a constant push to appropriate them as Hindus for extension of homogenisation process. Obviously the object of these laws is not to prevent this.

Conclusion

The UP Ordinance and all connected laws are unconstitutional. They should be struck down by the Constitutional Courts. The only purpose for bringing them in is to advance the cause of Hindu right wing majoritarianism and a step towards ‘Hindu Rashtra.’ Apart from other violations they are a threat to the secular fabric of the country and are against women, persons belonging to the SC/ ST categories and minorities in general. This will be one of the biggest test for our judiciary and one has to wait and watch whether they pass this test or as has been happening in some of the recent cases they abdicate their responsibility.

The post UP’s tryst with Love Jihad: The Ordinance and Constitutionality appeared first on SabrangIndia.

This article is not about the efficacy of the video conferencing hearings or about how many or often judges should sit for hearings during this lockdown. It is about how, the Higher Courts and especially the Supreme Court, have dealt with the various Petitions filed concerning COVID 19 and how our Courts, especially the Supreme Court have let down both the Constitution and the people of India.

Let me make two things very clear. It is true that some Petitions lack any substance and have been rightly dismissed. Second, a number of Petitions did not require the Supreme Court or High Courts to play the role of being scientific experts or medical doctors or even policy makers. They simply required certain actions or inactions to be tested on the touchstone of fundamental rights and directive principles and on the claims of Federalism and State Accountability. Maybe it was too much to ask. The signs of judicial deference to the Executive and Legislature have been there for quite some time. The willingness to transfer judges unpalatable to the Executive, the manner in which the issues of Kashmir, unbridled arrests under Unlawful Activities Prevention Act (UAPA) and the anti- Citizenship Amendment Act (CAA) agitation have been dealt with, especially by the Supreme Court, are reasons enough for some  human rights lawyers to consider renouncing legal practice. The way Habeas Corpus Petitions concerning Kashmir have been dealt with has rendered meaningless the most important of all instruments for the pursuit of legal justice. Similarly, the political bonds issue has been put in cold storage. But then what can we expect when a Chief Justice of India presides over his own hearing concerning allegations of sexual harassment? Though the trickle-down theory has never worked for the economy, it does work in the judiciary. If the Supreme Court keeps its hands off many cases, the High Courts also tend to follow suit, and also follow the same route, more often. Nevertheless, many Judges across High Courts have stood up to the Executive and called it to accountability in various ways. I will look at some of these orders also.

Kashmir, CAA, UAPA are overtly political issues. Of course they are issues that should be handled within the confines of our Constitutional principles but the Supreme Court has failed to do even that. But COVID-19 is primarily a non-political issue (or so it would appear) which affects virtually the entire population and more so the poor and marginalised, since, for them social distancing is a mirage, access to affordable health care is a chimera, and access to food and other essentials even in non-lockdown periods is never certain. Everyone agrees that COVID-19 should be contained, that the poor should get food and money, that affordable healthcare should be provided to all, at least in these times.

It has become very clear in the last two months that the biggest impact of the lockdown has been on the poor, the migrant labour, children, women, Dalits, Adivasis, transgenders, sex workers and other marginalised sections. They constitute more than 70% of our population. If the Courts are unable to do anything for those, who in this national crisis are jobless and without adequate food or shelter, then the judiciary can hardly be said to be delivering justice, indeed that it has miserably failed. The judiciary has its own limitations but this cannot excuse or justify its total failure to even listen to these marginalised sections many of whom are dying of hunger. Rather it reflects a complete surrender to the Executive which is not just an institutional failure but a personal failure of the judges.

The present health crisis could not have been anticipated and the initial reluctance of the Supreme Court to intervene is something one can comprehend. Though even this is also not entirely correct because on March 16, 2020 much before the lockdown became a reality, the Supreme Court took suo motu action in the context of COVID-19, to the decongest jails and other correctional homes and issued notices to all states and asked them to respond. On March 23 they directed each state and Union Territories to appoint High Powered Committees to make recommendations concerning release of certain under-trials and convicts for the period of lockdown. Possibly due to the pressure of having to report to the Supreme Court such High Powered Committees were constituted and a large number of prisoners were released. One may question whether a sufficient number of prisoners have been released or not, but the fact that the states got activated because of the Supreme Court cannot be denied. This was a living example of what some judicial prodding could achieve. In fact on April 13, when the matter came up again, the Supreme Court also directed—yes directed—that those in detention centres in Assam should be released after 2  and not 3 years of detention as was happening till now. Better still, the bond/surety amount was reduced from an earlier Rs 1,00,000 to just Rs. 5,000. This was a clear and welcome policy intervention by the Supreme Court that was done despite opposition from the Centre.

These were however exceptions. On most other issues the Supreme Court failed. The initial reluctance of the Court can be put down to uncertainty about what was happening given the global nature of the pandemic and a kind of wait–and-see attitude. But when this crisis continues week after week and month after month and it is obvious that there are huge numbers starving and pregnant women and children are walking hundreds of kilometers to get home, then the refusal of the Supreme Court to intervene is not just a delayed response to a new situation but a complete abdication of responsibility. If suo motu action could be taken about prison congestion much before the lockdown started, surely similar suo motu actions could and should have been taken on issues of food and migrant workers. Forget Suo Motu—even when these issues are brought to its notice, time and again they have been completely disregarded.

Some of the questions which arise while assessing the performance of the Courts are: first, what is the obligation of the State concerning fundamental rights and directive principles at the time of crisis especially for the poor? Second, could the Courts at all have gone into the issues pertaining to policy matters, scientific and medical expertise and carrying major financial implications for the government?. Third, what should the Courts have done, both procedurally and substantively to help out especially migrants, the poor and other marginalised sections  in terms of food, shelter, medical help and travel?
 

Obligation of the State: Socio Economic Rights

First things first: By providing affordable health care, free rations, free travel to migrants and some cash in hands of the poor, the Government is not performing acts of charity. It is merely complying with its obligations to the people who have a right to receive this, particularly during times of health and other emergencies. International conventions say so, the Indian Constitution says so, and it is the very foundational principle of a welfare state.

Even before the Disaster Management Act, 2005, right from 1880 onwards there have existed famine/scarcity codes which provide for relief obligations during calamities. Due to international pressure and commitments, there are various occasions when a law is passed not with any intention of implementing it but to comply with such commitment. In 2005, the National Disaster Management Act was passed in order to show compliance with the Hyogo Framework for Action which was adopted by the United Nations in 2005 for disaster risk reduction worldwide. Subsequently in 2015, when the Sendai Framework for Disaster Risk Reduction (2015-2030) was adopted by the United Nations calling upon states to take further action—a National Disaster Management Plan was adopted  by India in 2016. Under the Act, disaster management includes relief, rescue and rehabilitation. It is the responsibility of the Central Government to allocate funds for mitigation, etc. A National Executive Committee and State Executive Committee are to make resources available for drinking water, essential provisions, health care and services in affected areas. The Central Government is required to create two separate funds namely Disaster Management Response Fund and Disaster Management Relief Fund. Neither of these has been created in all these years. The Central and state governments also have the power to procure provisions without complying with bureaucratic procedures. In addition, there are Guidelines for minimum standards of relief prescribed by the National Authority. Of course much of this deals with minimum conditions in relief camps but even here sufficient and nutritious food including milk for children and lactating mothers is to be supplied to all and 3 litres of drinking water per day has to be given and there is no distinction on the basis of whether the person has a ration card or not. Similarly, in 2008 the National Guidelines for Management of Biological Disasters were framed. These also deal with pandemics and preventive and quarantine measures. These Central Guidelines also mention:

“The Epidemic Diseases Act was enacted in 1897 and needs to be repealed. This Act does not provide any power to the centre to intervene in biological emergencies. It has to be substituted by an Act which takes care of the prevailing and foreseeable public health needs including emergencies such as BT attacks and use of biological weapons by an adversary, cross-border issues, and international spread of diseases. It should give enough powers to the central and state governments and local authorities to act with impunity, notify affected areas, restrict movement or quarantine the affected area, enter any premises to take samples of suspected materials and seal them.”

Bear in mind that this is after the Disaster Management Act, 2005 was brought in. Even according to the Central authorities there is no law existing for matters concerning quarantine, lockdown, restriction of movement. The question remains whether the current lockdown, restriction of movement, quarantine etc. are at all legally well founded. There are general and broad powers to the Central and state government to issue directions for mitigating a disaster but no particular power for the actions presently taken and whether these actions are at all legally sustainable is an issue. But let us proceed on the assumption that the lockdown, quarantine, etc. are legally permissible.

In any case the obligation to take care of the poor during disasters is already prescribed under the law. While there is no specific fundamental right to food, health care, shelter, etc., Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty without procedure established by law, has been given a wide interpretation by the Supreme Court which has broadened the definition of life to not just include “mere animal existence” but the right to live with human dignity which includes right to shelter in Olga Tellis v. B.M.C. (1985 3 SCC 545), Chameli Singh 1996 2 SCC 549), the right to livelihood in PUDR (AIR 1982  SC 1473), right to adequate health care in Paschim Banga Khet Mazdoor Samiti (1996 4 SCC 37), right to clean drinking water in A.P. Pollution Control Board (2001 2 SCC 62), right to food, etc. Thus it is not merely a moral or legal obligation of the State to look after the people but also the right of the people to demand and obtain these very essentials from the State.

The obligation of the State to protect and provide for the population during the time of calamities is an accepted legal principle since the time Grotius proclaimed it in the 16^th Century. In Levine v. Milne Citing (424 US 577) and  Dandridge (39 USA 471), the U.S Supreme Court  said “[w]elfare benefits are not a fundamental right, and neither the state nor federal government is under any sort of constitutional obligation to guarantee minimum levels of support.”  We, however, do not follow the American model where welfare benefits are not treated as rights.

In India there are not less than 300 Judgments of the Supreme Court which reiterate that India is a welfare state. In addition, there are a large number of directive principles which have been converted into statutes and therefore acquire the status of implementable rights. These include the National Food Security Act, Street Vendors Act, National Rural Employment Guarantee Act, Unorganised Sector Workers Social Security Act, Maintenance and Welfare of Senior Citizens Act, Prohibition of Employment of Manual Scavengers Act, Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, and various laws concerning women, children and Dalits. The implementation of these laws is altogether another matter. But as a legal regime the welfare state exists by virtue of the Constitution as also various enactments. This reality has reinforced the use of public interest litigation.

There is another argument I wish to advance. Even if these rights – right to food, right to drinking water, right to subsistence, etc. – are treated as directive principles of state policy not enforceable in law, during public emergencies they acquire the flavour and substance of fundamental rights. Just as some of the civil liberties and fundamental rights may be curtailed to deal with the disaster, similarly such disaster elevates many of the  directive principles to the level and status of fundamental rights especially the rights concerning healthcare, food, drinking water, etc. There is a theory propagated by the Italian theorist Giorgio Agamben which speaks of the State acquiring and expanding its powers in what he calls the ‘state of exception’ especially during emergencies.

“Within these times of crisis Agamben addresses how this prolonged state of exception operates to deprive individuals of their citizenship, and individual rights. In a state of exception the government has extended levels of power and authority than in the past. With this new level of extended authority there is a blurred distinction between what is legal and illegal, public and private.

States of exception come into being when there is an increase in government power in supposed times of crisis. In order to enact a state of exemption one person or government must make a case to the public that this has to happen. The citizens of the state are told that this extension of power beyond where the law had existed in the past is vital to ensure the safety and wellbeing of the state and the citizens that reside in it.

The subjects living in a state of exception do not have any legal status, as stated by Agamben they are seen just as living human beings and not a legal being. Individuals are not only deprived of their citizenship but also denied making their own decisions regarding their life. Citizens in a state of exception are much like prisoners., the parallel can be seen in both circumstances where someone of a greater authority is regulating their lives. Citizens are told that these changes in power and authority must be made for their own good, although in most circumstances the individual or body of government is exempt from their own laws.” Pingback: State of exception | Law and Society@Kwantlen

The people on whose behalf the powers are exercised by the State have likewise a right under emergencies to insist on the legal enforcement of directive principles during extra-ordinary times. 

While it is true that during such states of exception many civil liberties are curtailed, it is jurisprudentially required that during such times those human rights (such as right to food, water, etc.) which are directly impacted by curtailment of the civil liberties transform into fundamental rights—and not just as negative rights but positive rights—casting an obligation on the State to meet them. Failure to do so would amount to a total negation of the Constitution which no juridical system can accept. So if my fundamental right/liberty to move around or carry on my vocation is substantially curtailed (as in the present case) the directive principles, namely right to food, right to shelter, healthcare, etc. push themselves into being fundamental rights making it an obligation of the State to provide me with these facilities and allowing me, like in the case of other fundamental rights, to approach the High Court or even directly the Supreme Court for enforcement of these rights. This is where one sees the failure of the Supreme Court and many of the High Courts.

In ordinary times the Constitution is of course very important but it is in times of crisis that the Constitution and the mechanisms to enforce it are tested. That is why in the current context the failure of the Supreme Court becomes even starker.
 

Judicial Powers

Two questions arise. One, whether the judiciary has the powers to tell the Executive what to do and what is the extent of this power. Second, what could the judiciary have done in these times.

The Supreme Court has been repeatedly saying it cannot substitute its own wisdom for that of the Executive and it cannot interfere in policy matters. Second, that the Supreme Court is not an expert on medical or scientific or economic subjects.

At first blush this may sound sensible but it is a complete abdication of judicial review. Let us look at a few instances over the last 40 years of the Supreme Court’s decision-making history. When the Supreme Court found that the law did not deal adequately with foreign adoptions it laid down detailed binding guidelines for  Indian children being adopted by foreigners (Laxmikant Pandey AIR 1987 SCC 232). In  D.K. Basu’s case, detailed directions were given about the rights of the arrestees and accused. Similarly in Visakha’s judgment (1997 6 SCC 241) the Supreme Court effectively legislated on matters concerning sexual harassment at the workplace. The Court gave directions on how children of sex workers should be educated (Gaurav Jain AIR 1990 SC 292).  The Court ordered vehicles over 15 years to be discarded (M.C. Mehta 1999 6 SCC 12), gave a completely “scientific” direction that vehicles should use CNG (M.C. Mehta  1999 6 SCC 9). In the Azad Rikshaw Pullers Case (AIR 1981 SC 14) the Court asked the Punjab National Bank to advance loans to rickshaw pullers and set out an entire scheme concerning repayment of loans. In Common Cause (1996 1 SCC 753) it gave directions on how blood should be collected and transfusion free from hazards be made: this was total usurpation of medical science.  Furthermore, the SC prescribed a detailed procedure for fee structure in professional colleges. Lest it be thought that this was a 20^th century phenomena given up in the 21st century, in Savelife Foundation (2016 7 SCC 194) directions were given considering the treatment of good Samaritans in accident matters. The Supreme Court has also directed the Government to implement the river linking project, which because of this policy direction suddenly became the most important project in the country. Let us not shy away from the fact that whenever the Supreme Court wants to lay down a policy it does so (whether scientific, economic or whatever) and whenever it does not, it reverts to the mantra ‘we don’t interfere in policy matters.” I can go on and on. Were not these issues meant only for the legislature or for the Executive? In any event, the Supreme Court itself has observed in various judgments that while it would ordinarily not interfere in policy matters, it would certainly do so if the policy was arbitrary or in violation of any fundamental right.

The whole purpose of Constitutional Courts is to oversee the decisions of the Legislature and Executive or what is called  judicial review. Even if the judges only watch the most sensational and pro-government elecronic television channels and source their news through twitter they would know that there is a huge problem of starvation on a massive scale and of migrant workers totally left in the lurch by the Executive. These are the two most important issues which the Supreme Court should have taken up on a suo motu basis as soon as the crisis began or soon after. They could have issued various directions and appointed independent authorities to verify the claims of the Government rather than accepting whatever the Solicitor General said, even if it was in an affidavit. What was needed was an active Supreme Court.

There are orders which a sensitive Supreme Court could have easily passed without interfering in policy decisions and without becoming doctors or scientists.

First, the Court should have appointed an Amicus to assist the Court (without displacing the given Petitioner), an approach adopted by the Supreme Court itself in various matters. Amicus could have independently verified the claim of the Government and assisted the Court. That would have required the august institution to function determinedly as an independent sentinel of the Constitution.

Second, the Court should have appointed independent observers/committees to visit random places to verify the claims of the Government. This again is an approach adopted by the Constitutional Courts in many cases. Way back on February 28, 1982 the Supreme Court acting on a letter, sent Commissioners to quarries in Haryana to see if bonded labourers were actually working there. The Commissioners verified this and thus started the famous bonded labourers case. This practise of independent fact finding has been followed by the Supreme Court in many cases over the decades.

Independent verification of government claims is all the more important during the COVID period because the country is under a lockdown. It is not easy for citizens to visit various places to file reports. They can only give anecdotal information. We are faced with a situation where the entire country is under lockdown, the Government is making bombastic claims, the media is constantly reporting major cases of starvation and the humongous problem of migrant labourers. But the Court does not pay attention to the  media and no one else is allowed to go out to conduct a study. This is the ideal situation wherein independent observers should have been appointed by the Court to verify the claims of the Government. But that would mean the Court had at least an iota of doubt about the veracity of the claims of the Government when in fact the Court is busy giving plaudits to the Government and believing whatever they say. So the question of having independent observers does not arise. At the very least the Supreme Court could have done what the Karnataka High Court did by an order asking the Legal Services Authority at various district levels to visit the sites and file reports, which were duly filed and allowed the Court to do a reality check and pass further excellent orders.

The Supreme Court readily accepted the Government’s contention on March 30, 2020 that migrants were travelling because of the outbreak of ‘fake news’ and further on April 4, 2020 the Court accepted the Government’s contention that not a single migrant was now on the streets. When after a month—by which time some newspapers were read and some other news channels watched—it could not be denied that migrants were still travelling by foot, the Court responded by saying it could not do anything and dismissed the Petition.

When a Petition came before the Court that a large number of poor persons not having ration cards were not being given ration, the Court could have very well directed that all poor persons be fed. This is not a question of policy- and if it is, it would be irrational and arbitrary and a violation of Article 21and the fundamental right to life.

Similarly, the Court ought to have directed the Railways not to charge any fare from the migrants who were anyway without money. This is what a Constitutional Court is required to do during crisis times.

As recently as in 2018 the Supreme Court in the suo motu case of Inhuman Conditions of 1382 Prisons (2018 18 SCC 777) directed the Central Government to form a committee presided over by a Supreme Court Judge to make recommendations on prison conditions and kept the matter alive for further orders. In fact as mentioned earlier in this paper, this was done by the Supreme Court even after the COVID crisis began so that prisoners could be released for a temporary period.

The other thing which the Supreme Court should have done was to use its power of continuing mandamus to at least make the Government answerable in various cases.  This power, which has been regularly employed by the Constitutional Courts is at times used to issue mandatory directions and at times used to push, plod and embarrass the Government to act. The latter is done in a manner where the Court facilitates resolution of issues by keeping the case alive and making the Government answerable through various means including asking for repeated status reports, appointing independent commissions to oversee what is happening, asking the Government officers and advocates to sit with the Petitioners lawyers and civil society groups to find a solution, suggest measures which becomes difficult for Government to refuse to accept. This is precisely how some of the High Courts have proceeded in the present crisis and with excellent results as will be pointed out here.

The classic earlier example of this was the PUCL’s Petition on Right to Food which lasted from 2001 for nearly 15 years wherein the Supreme Court passed various orders which helped large numbers of poor people and ultimately led to the enactment of the Food Security Act, 2014. During this period, regularly and repeatedly, the Court without  there being any law on the subject, enforced directions (many times coyly agreed to by the State and Central Governments) concerning mid-day meal schemes, anganwadi schemes, maternity benefits, starvation deaths, etc. Policies were converted into legal rights and minimum allocations of food grains and supplementary nutrients were prescribed in great detail. Significant “interim orders” have been passed from time to time. For instance, the Supreme Court has passed orders directing the Indian government to: (1) introduce cooked mid-day meals in all primary schools; (2) provide 35 kgs of grain per month at highly subsidized prices to 15 million destitute households under the Antyodaya component of the PDS; (3) double resource allocations for Sampoorna Grameen Rozgar Yojana (India’s largest rural employment programme at that time, now superseded by the Employment Guarantee Act),; and (4) universalize the Integrated Child Development Services (ICDS). Moreover, decentralisation was ordered on a large scale to avoid corruption and involve the local communities. [See the website of Right to Food Campaign for further details.]

The Supreme Court appointed independent commissions to monitor the implementation of its orders and regularly report back to the Court. Finally after the enactment of Food Security Act, the Petition was disposed of. Despite the best efforts of the Court, the Petitioners, the Commissioners and the Right to Food Campaign a lot still remains to be done but reasonable success was achieved at the ground level.

This is just one example of the Supreme Court using its powers for betterment of millions of people. Unfortunately the same enthusiasm is missing now. Let us now look at what the Supreme Court has performed in the COVID related cases.

Supreme Court and COVID related issues

Since March, 2020 a large number of individuals and organisations have approached the Supreme Court concerning the impact of COVID-19. Many of the Petitions, such as the prayer to declare financial emergency, are frivolous. Some others have prayers requiring high levels of medical or other expertise, which the Supreme Court does not have, cannot be gone into. On the other hand, a number of issues have been raised in the Supreme Court which it could have and should have entertained but failed to do so. The basic approach of the Supreme Court has been to either say that the Government is doing very good work and therefore the Court should not interfere or to say that these are matters concerning policy which cannot be interfered with. Essentially the Supreme Court has been highly deferential towards whatever the Central Government says, especially through the Solicitor General; and when pushed, the court will at the most request the Central Government to consider the issue raised in a Petition. No timeline is given  nor any guidance as to what are the factors to be taken into account while considering the issue. No questions are asked and no concerns expressed; the Petition dies a natural death. Let us now look at some of the crucial issues dealt with by the Supreme Court concerning COVID-19.
 

A. Migrant Workers

Under the Migrant Labour Act all migrant labourers are to be registered and if experience is anything to go by, not even 10% of them are actually registered. Most of these workers are daily wage workers working in various industries such as construction work, brick kilns, etc. While there is no official data for the inter-state migrants in the country, some estimates for 2020 have been made by Professor Amitabh Kundu of the Research and information System for Developing countries. His estimates, which are based on the 2011 Census, NSSO surveys and Economic Survey of India, show that there are at least  65 million inter-state migrants. By conservative estimates, 30% of them are casual workers and another 30 per cent work on a regular basis but in the informal sector. A study by the Centre for the Study of Developing Societies (CSDS) and by Azim Premji University in 2019 estimates that 29% of the population in India’s big cities are daily wage earners. This is the number of people which, logically speaking, would want to move back to their states. Despite the complete failure of the Central and State Governments to enforce the migrant workers legislation the Central Government should have enough knowledge about this problem. The March 24, 2020 lockdown may have come as a bolt from the blue for the people but for the Central Government one assumes it was a planned action. Much before this date, the World Health Organisation (WHO) had declared Covid-19 a pandemic. Flights had been stopped, the virus had spread within India, the circus of clapping from balconies had begun and some of the states had already effected lockdowns. Way back on  January 31, 2020 the Central Government had banned the exports of various Protective Personal Equipments (PPE). From the first week of March the Supreme Court had begun to run on a very limited urgent hearing basis. Any efficient Government would have anticipated the rush of migrants to home states and planned for it. If one could finally allow migrants to go back after 37 days of lockdown—by which time there was widespread spread of the virus—one could have allowed them to go back from March 24, itself. These are the questions which the Court should have put to the Central Government. Let us see what the Court actually did.

On March 25, 2020, thousands of migrants started walking. On March 26, Alakh Srivatsav filed a Petition in Supreme Court stating that a large number of migrants are walking on the roads to reach their home states and they should be sent to government shelters and provided food, water and medicine. Another similar petition was also filed. Both these Petitions came up for hearing on March 30 and the Court asked the Central Government to file a Status Report. On March 31, a Status Report was filed and the Court heard the matter. The Status Report mentioned that from January 7, itself the Central Government had started making all preparations including hospital preparedness. Meanwhile on March 29, the Central Government issued a direction that migrant workers should not be allowed to move and they should be kept in State Government shelters and provided food, drinking water, etc. The Central Government said that nearly 6 lakh migrant workers were placed in government shelters and about 22 lakh persons were provided food. What would happen to crores of other migrants was of course a question which the Supreme Court did not pose. Incredulously, the Solicitor General made a statement that as of 11 a.m. on March 31, not a single migrant was walking!  The Status report stated that migrant workers were travelling because of panic created by fake news. This was an astonishing claim but the Court accepted all these submissions. On top of this endorsement the Court said that adequate steps have been taken so that all migrants are safe and sound. The Solicitor General also made a statement that within 24 hours, trained Counsellors will visit each of the relief camps/shelter homes. Even after more than a month most of the shelter camps have yet to see a counsellor, trained or otherwise. The matter was then adjourned to April 7.

Furthermore, in the same Petition an application was made to direct the Government to requisition hotels, resorts, guest houses to house migrants. The Central Government said it was doing this and so the application was disposed of. Finally, the matter came up on April 27, 2020 when additional applications were filed by the Petitioner. The Court disposed of the entire matter stating that the Central Government will consider the suggestions of the Petitioner and that the ‘interim relief’ granted on March 31, 2020 will continue as final relief. But this ’interim relief’ did not say anything except that the Central Government should keep on doing what it was doing. In the Court’s book on migrants, Chapter 1 is hereby closed. Closure of Chapter 1 of migrants.

On April 2, 2020 the Supreme Court took suo motu notice of a letter written by MP Mahua Moitra concerning the situation of migrants of which she personally had taken note of. For some reason this Petition was dismissed on April 13, 2020 for reasons that are left unclear. Now Chapter 2 is closed.

On April 3, another Petition concerning migrants came up for hearing. This was filed by Harsh Mander whose work has given him a great deal of knowledge about ground realities. This Petition sought payment of wages to the migrants pointing out the humanitarian crisis caused by the lockdown. The Centre was asked to respond on  April 7. On that date the matter was adjourned with the Chief Justice remarking that if the migrants are being fed why do they need money. Maybe it was overlooked that even poor migrants once in a while have tea, have bath with soap, have to wash clothes with soap, have to send money to their villages for their families. Anyway the matter finally came up on April 21. The Solicitor General claimed that all migrants were being fed, provided ration, etc. Harsh Mander filed an Affidavit annexing reports by the civil society organisation SWAN based on ground level information that a large number of migrants were still lacking basic facilities. But the Court, it seems, orally observed that it could not place reliance on private studies when the Government is giving a completely different picture. So the Court did what it does in such matters. It asked the Union of India to look into the material and take steps as the Central Government found fit. The Petition was disposed of. Chapter 3 is now  closed.

On April 18, 2020 a Petition was filed by Jagdeep Chhokar for allowing the migrants to go back to their parent states and for the Governments to make arrangements for this. This came up on April 27, 2020 for hearing. On that day the Court asked the Union to place on record protocol, if any, for travel of migrants. Meanwhile on April 29, the Central Government decided to allow the travel of migrants and of course then substantially modified this on May 1, 2020. In any case on May 4, an application was filed in this Petition raising grievances against the travel charges which were being demanded from the migrants. The Court disposed of the entire Petition by holding that it could not go into the issue of charges for travel.  Closure of Chapter 4.

By April it was clear that a large number of migrants had died of exhaustion and starvation. On May 16, migrants who were going towards their home state died when a speeding train ran over them. An immediate application was made by Alakh Alok Srivatsava bringing this and various other incidents to the notice of the Court and asking the Court to intervene in the matter and direct the District Magistrates to ensure that those who are walking are provided with shelter and food so they do not walk. One of Judges remarked that the submission was based purely on newspaper reports. What was the Petitioner to do in the time of lockdown— follow each and every migrant who was walking? In, shall we say, a truly sublime observation, another Judge remarked that how could the Supreme Court stop people from walking. The Solicitor General with his characteristic insensitivity remarked that what can the government do if people are not willing to wait their turn for train travel. The point which was totally missed of course was that people were walking because they were not getting food or water; they were walking because they did not have money to buy train tickets; they were walking because no one was certain as to when their turn would actually come to travel by train. The Application was dismissed. Chapter 5 closed.

One can extend to the maximum one’s benefit of doubt and  accept that in the initial week of the lockdown the Supreme Court felt that the Government was doing its best. But within 7 days things became clear. We do not have to have site visits to understand the problem. One needs to only look at newspapers, social media and even those news channels which one would ordinarily never watch, to understand the reality. Even today, after the starting of the trains, tens of thousands of migrant workers are walking towards their home states. They have not been paid wages for the lockdown period and the State Government  has supplied food to only a small percentage of migrants. Even today, despite the Centre and states making false claims, migrants have had to pay for their full train tickets. Nearly 200 persons have died trying to reach their home states. It is difficult to believe that the Supreme Court is not aware of this. On the one hand there is lockdown so it becomes difficult for individuals and organisations to go out and study the situation. When they do and make reports these are ignored and whatever the State says is believed. When Courts see their roles as assisting the Executive and disbelieve the lived reality of people, when they fail to exercise their jurisdiction which is embedded in the law and jurisprudence of the last 40 years, it compels the question, what then are Courts meant for.

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, contains various provisions pertaining to the employment of inter-State migrant workmen and to provide for their conditions of service. The Act provides for the registration of establishments employing migrant workers. Section 6 prohibits employment of inter-State migrant workmen without registration and without the establishment obtaining a certificate of registration. Section 8 provides for the licensing of contractors who employ migrant workers. The licence may contain such conditions including the terms and conditions of the agreement or other arrangement under which the workmen will be recruited.

Under the Act, the government is obligated to keep a complete record of all the establishments employing migrant workers, contractors providing migrant workers for employment and migrant workers in every state. It should therefore be possible for the government to identify each migrant worker working under any establishment and ensure that he/she is paid their wages. This is of course if the Act was at all implemented.

The only good order in respect of migrants that the Supreme Court has recently passed was the recent stay against the Orissa High Court judgment. The Supreme Court stayed the order which directed that no migrant will be allowed into Orissa unless at the point of boarding from the initial destination outside Orissa, such a migrant has been tested negative for COVID 19. This was impossible under the present circumstances and the Supreme Court rightly stayed it. But one wonders whether such a stay would have been granted if instead of the Union of India  challenging the Orissa High Court order, a migrant or a civil society organisation had raised the challenge?

During all these hearings should not the Supreme Court have at least once asked the Central Government as to why they did not make any plans for migrants before imposing the lockdown? Should not the Supreme Court have once asked the Central Government, that, if on March 24, when the spread of the virus was limited, migrants were effectively not allowed to travel, then why after the virus has spread so much on April 29, were they allowed to travel? The Supreme Court has let tens of millions of migrants down and thereby also the Constitution.

On the other hand, like during the emergency of 1975-77, some of the High Courts have been much more proactive about peoples’ rights. Some of the orders of High Courts from Karnataka, Bombay, Tamil Nadu, Andhra Pradesh, Uttar Pradesh and Gujarat are some examples. Of course one would have to say that, though, by and large, High Courts have also followed the Supreme Court in deferring to the Executive, one still finds important exceptions.

On April 3, 2020 the Karnataka High Court issued an order directing the District legal Services Authorities to visit various shelters set up across the State for migrants and file a report with the Court. This monitoring itself activated the State to ensure proper provisions.

On May 12, the Karnataka High Court made the following observations:

“Another important issue is of the migrant workers requiring to pay the train fare. As per the order of the Ministry of Railways dated May 2, 2020, the State Government which arranges for “Shramik” special trains is expected to pay the train fare. In the State of Karnataka, the policy of the State is to collect the train fare from the migrant workers. In case of some States, the concerned State Governments have agreed to pay the train fares of the migrant workers who are returning to the said States from the States in which they are working.

10. Prima facie, it appears to us that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for the transport. The reason is that inability to pay is due to loss of livelihood.

11. The Central Government through the Ministry of Railways will have to look into this issue, especially when the Home Secretary of the Government of India by his letter dated May 11, 2020 addressed to the Chief Secretaries of all the States has stated that the State Governments should cooperate with the Central Government for running more number of “Shramik” special trains so that the travelling of the migrant workers is facilitated at a faster rate. Even in the last paragraph of the said letter, the Home Secretary of the Central Government has urged the Chief Secretaries to receive all “Shramik” special trains without any hindrance and facilitate faster movement of the migrant workers to their native places. If the migrant workers are unable to pay the train fare, it will be impossible to facilitate their travel at a faster rate. Therefore, apart from the Central Government, even the State of Karnataka must look into the issue and take immediate decision on the question of paying railway fare of those migrant workers who are not able to travel due to their inability to pay.

12. The State Government and the Central Government, during this difficult time, must appreciate the major contribution made by the migrant workers in a large number of public projects as well as private projects which have contributed to the improvement of the infrastructure in all the States and the improvement of the economy. At a time when the migrant workers who have made such a huge contribution are facing distress, both the Central and State Government must come forward to help them to ensure that at the earliest, they return back to their home States. Ideally, no migrant worker should be deprived of an opportunity to travel back to his home State if he wishes to do so. Therefore, it will be appropriate if the State Government immediately convenes a meeting of all the Trade Unions, Employers’ Associations and NGOs in the State with a view to ascertain whether any contribution can come from the Employers’ Association, Trade Unions and NGOs which can be used for bearing the Train fares of the migrant workers who are not in a position to pay the train fare.

……The Central and State Government must find the solution on this issue which will ensure that the rights of those migrant workers who wish to go back to their respective States are not infringed only because they are in distress and are not in a position to pay the travelling charges.

14. The responses of the State and the Central Government on these aspects shall be placed on record on the next date, that is, on May 18, 2020.”

The matter was finally kept on May 21, 2020 for arguments under Articles 14, 19 and 21 of the right of migrants to be paid train fare for travelling to their home states. On that day the State Government filed detailed written submissions and the matter was directed to be kept on May 26, for final hearing. The Court again prima facie observed that non payment of fares would violate the fundamental rights of migrants. Looking at the mood of the Court the Government on May 22, announced that it would bear the train fare of all migrants who wanted to return to their home states.

On May 15, 2020 the Andhra Pradesh High Court passed an order in respect of migrants who were walking towards their home states. The State Government argued that they had set up tents/outposts at regular distance to help walking migrants. The Court ordered

1. that these outposts should have at least one doctor, drinking water, dehydration salts and glucose packets. Each such outpost should have a standing ambulance;

2. mobile toilets should be provided at regular distance and sanitary pad dispensing machines should be provided at every alternate outpost;

3. adequate food should be provided to migrants who are walking on the national highway;

4. national highway authority buses and police patrol vans should be utilised to transport these migrants to the nearest shelter homes;

5. pamphlets should be printed in Hindi and Telugu for giving to these migrants the addresses of the nearest shelter homes and various phone numbers;

6. Nodal officers should be appointed and each shelter home should be supervised by one officer and help of even non-governmental organisations should be taken to ensure that food, medicines actually reach these shelter homes. Report of compliance should be filed by 22.5.2020.

On the same day the Madras High Court passed the order which needs to be quoted extensively:

“7. One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy. When the lock down was announced at the end of March 2020, lakhs and lakhs of migrant workers were stranded throughout the country.  Most of the workers lost their jobs, no shelter is said to have been provided apart from lack of supply of adequate food.  After waiting for a considerable time, they started migrating to their native states by foot. It is very unfortunate that those persons were neglected by all the authorities. The heart breaking stories are reported in the print as well as visual media that millions of workers were compelled to start walking to their native States with their little children carrying all their belongings over their head, surviving on the food provided by good Samaritans, as no steps were taken by the Governments to help those migrant workers. It is also reported that some people starved to death due to hunger. …”

“8. It is not only the duty of the native State of the migrant workers but also the duty of the States where they were working to care for their safety and well being. India is a welfare State and Article 21 of the Constitution of India is paramount and safety and security and supply of food are important. This Court is well aware that Covid-19 is not only a national crisis but also an international crisis. But, it is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers.

“9. There are a number of toll gates available and those toll gates should have been made as checking points to provide food, shelter and medical help to the migrant labourers. However, it is very pathetic to note that neither the native States nor the States through which they were walking all along took care of them and failed to provide even the basic amenities such as food and shelter and even if they had been provided, they were negligible.

“10. First of all, relevant data of those persons who were working as migrant labourers in all States have to be collected; The host State in which they were working should be made accountable for the safety and well being of the migrant labourers, for which all the States are expected to act in unison, rendering assistance to those poorer sections.  This Court is aware that yesterday, the Central Government has come out with relief measures including rental housing facility, free food grains without ration card. 

“11. The newly impleaded respondents are directed to answer the following queries.

1. Whether any data is being maintained by the Government of India regarding the details of migrant workers working in each State/Union Territories in India?

2. If so, what is the number of migrant workers in each State/Union Territories in India and the details regarding their nativity?

3. What is the number of migrant workers stranded in each State/Union Territories in India as on today?

4. What are all the assistance provided to those migrant workers by the      Respective States as well as the Union Government?

5. Whether those migrant workers are allowed to cross the State borders or prevented from crossing the borders and if they are prevented, whether they are provided with basic amenities such as food, shelter and medical assistance?

6. How many migrant workers died on their way to the native States?

7. To which States/Union Territories, the deceased workers belong to?

8. What are the relief measures/compensation provided to the families of those migrant workers who lost their lives on their way back to their native States?

9. How many migrant workers in each State/Union Territories have been evacuated from their working States to their native States through buses/trains throughout India?

10. What are all the steps taken to transport the remaining people to their native States?

11. Whether migration of people is one of the reasons for the spread of Covid-19?

12. Whether the Central Government has instructed the respective States/Union Territories to provide financial assistance, job opportunities in their native State/Union Territories for the labourers who migrated from other States?”

“Both the Central Government as well as the State Government have to file

their reply.”

Similarly, the Gujarat High Court on 11.5.2020 took Suo Motu Notice of the plight of migrants and observed:

“6. The   Indian   Express”   has   published   a   news   item   titled as ‘Migrant workers made to wait for 19 hours in Gujarat to board a train to UP’. It appears that the migrant workers are suffering the most.  They are desperate to go back to their homes i.e. to their native States across the country. We appreciate the efforts of the State authorities which are being made to transport the migrant workers to their respective States by way of Trains, Buses, etc. However, it seems that before they are able to board the Train or a Bus they have to suffer like anything for     hours together in this scorching heat of almost 45 degrees.

The State Authorities should come forward with some modalities or plans to smoothen and ease the process so that the migrant workers may not have to wait for hours and hours together before they are able to board the trains or bus.

7.We also take notice of the news item published in the Indian  Express dated 11th May 2020 titled as ‘Stop migrant workers walking  home, take them to shelters: DGP’. It appears from the news item that the Director General of Police State of Gujarat has asked the police to stop any worker seen walking and take them to the nearest shelter home. We would like to know how many shelter homes are functional as on date across the State of Gujarat and at which places. The shelter home should also provide for food and water, more particularly, having regard to the scorching heat. Everyday hundreds of migrant workers with small children are to be seen in different parts of the State, more particularly on the highways. Their condition is pathetic. As on date they are living in the most inhumane and horrendous conditions. As we have observed earlier, although all the necessary steps are being taken by the State Government, yet we are of the view that few more modalities need to be worked out at the earliest to ease the suffering of the people at large.

8.The State Government should keep in mind that they are at  present dealing with the most downtrodden, under privileged and  weaker sections of the society. They are all afraid. They are not afraid of COVID­19, but they are afraid that they would die due to starvation. In such circumstances, it becomes the paramount duty of the State Government to assure and repose confidence in the downtrodden class of people that they will be taken care of in the best possible manner. It is high time for the State Government to deal with this delicate situation very carefully and instill confidence in the minds of the people at large that they will be taken care of.”

The case was then kept on May 14, 2020 on which day the State Government filed two lengthy status reports. The Court again brought in focus the plight of migrant workers and reproduced the May 12, order of Karnataka High Court and asked the State to take action. Finally, on May 22, the Gujarat High Court passed a detailed  order running into 143 pages issuing various directions. Concerning migrant workers it directed the railways to waive one way fare for the migrants or the State Government to bear these expenses. This order is also very relevant for the way it comes down heavily on the State Governments health care facilities and condemns the way in which the private health care sector has been functioning only for profiteering. Various health care related directions are given in this order.   

Similarly the NHRC has recently taken suo motu action concerning the  migrant workers having to walk long distances. .

What the High Courts have been doing is prodding, pushing, embarrassing and asking probing questions. They are not disposing of the matters but demanding answers, actions. At times they are passing mandatory directions. This issue concerns the entire nation, a matter in which the Supreme Court ought to have done what some of the High Courts are doing.
 

B.  Food and Ration

With the lockdown it was clear that millions of people, not just migrants but even other poor persons who relied on daily wages and many of the millions who were below the poverty line, would need food and drinking water. A large number of workers overnight became jobless, many not even paid their previous wages.  Similar was the fate of the self employed such as hawkers, etc.  What will be done about this was not announced by the P.M. on his March 23, 2020 8 p.m. lockdown speech. This led to a massive rush for purchases which in itself would have caused some amount of virus spread.

Even today, after over two months of lockdown, for instance in Maharashtra according to a study, more than 96% of the poor have not been given government ration. There were two major problems. While free ration was announced it was available only if you first buy paid ration. Second, a large number of people in India do not have ration cards at all or their ration cards are in their villages and they are in the cities or they have the ration card but it is from a different state. In fact there is enough buffer stock lying in the FCI godowns to feed the entire population many times over and what the Government should have done was to release the stock and give totally free rations to people not just during lockdown but also for months after that. This was the only way of ensuring the enforcement of right to food as a fundamental right. 

So inevitably, petitions were filed in the Supreme Court saying people are not getting food. One Petition was filed by Jairam Ramesh for giving free food. This was disposed of since Jairam Ramesh had not approached the Government first before going to the Court. Why such a procedure was required is unclear. The Government knew about the paucity of food and water for millions. It did not require a Jairam Ramesh to write a letter to bring it to its notice.

A second Petition was filed by Aayom Welfare trust—a trust which was involved in relief work. In this Petition it was urged that the Government should also give rations to those who do not have ration cards and universalise access to the public distribution system. On April 30, 2020 this Petition was disposed of with the observation that this was a policy matter and the Court could not do anything and that the government may consider taking the matter up. So there ended the food issue of the people at least as far as the Supreme Court is concerned. The Supreme Court could have directed the Centre to provide rations to even those who do not have ration cards. It is a right to life question not just a question of coy abstinence from policy matters. The least the Supreme Court could have done was to keep the Petitions pending and push the Government to take steps. This is what some of the High Courts have done.

The Karnataka High Court started hearing the matter on March 30 and has been hearing it regularly till date. On the very first date it asked the State as to how (and not whether) the state will give food to children from the Anganwadi and mid-day meal scheme since anganwadis and schools were closed. The government had no option but to come up with a plan. As regards food to people without ration cards the Karnataka High Court referred to an earlier judgment of the Supreme Court in the case of Swaraj Abhiyan (2016 7 SCC 498) wherein the Supreme Court had held that during the time of drought it was enough to show an identity proof (and not necessarily a ration card) to get rations. Karnataka High Court held that this logic would apply even in current times. It asked the state government to take decision on this aspect by the next date.

On April 7, the Court again raised the issue of food to those without ration cards. The government said in certain parts they are providing food packages to such people. The Court asked the Petitioner to check from its volunteers whether this was done across the State. On April 9, the Court again pushed the government. The Court observed that many persons belonging to marginalised communities such as beggars, transgenders and sex workers may not have ration cards. It stressed the need of providing ration to those who did not have ration cards and free rations to those who could not afford but had no BPL cards. On April 13, when the state was again pushed it said it will place a comprehensive policy on food by April 16.

On April 16, the state government finally came out with its policy concerning food for those who did not have ration cards. This was divided into two categories. Those who were staying in government shelters will be provided cooked food while those who were residing in their own houses would be provided either food packets or raw food. On an objection by the Petitioners lawyer, the Court directed the state to specify the quantum of raw rations which will be provided and also asked the state to ensure availability of gas cylinders for cooking. The Court also asked the State to identify individually on war footing those who were without food. Finally, the Court expressed appreciation for NGOs doing selfless work during this period.

On April 24, the state gave details of rations to be provided for each person but said that free gas cylinders were not possible. The Court came down heavily on this and said that the state must consider giving one gas cylinder free for the poor. Earlier, the government had said that they will advertise in newspapers about availability of shelters for those who were homeless and the Court had observed that homeless people may not have access to newspapers so such advertisements were meaningless. The state now said they had started announcing the availability of shelters through public announcements from vehicles.

On May 5, the Court observed that the state government should consider extending its circular concerning non-eviction of workers also to trangenders and sex workers. On the next two dates the Court dealt with the issue of transport of migrant workers and the matter is kept alive.

The Nagpur Bench of the Bombay High Court adopted a very creative method to ensure that food and ration supplies are given to those not holding ration cards. On May 12, the matter came before it and the state cited the Supreme Court’s order which said it could not give directions for providing rations to those not having ration cards. It of course left it to the governments to decide whether such rations could be given or not. So the High Court looked at the state government’s policies. That government had issued a resolution on March 29, 2020 which spoke about provision of food, shelter and water to be provided to migrants, homeless and others who did not have essential items. The responsibility was placed on the district administration. The policy also mentioned cooked food. The policy did not make any distinction between those having ration cards and those not having ration cards.

The Corporation (a Respondent in the petition) came out with the case that there was a subsequent Government Resolution dated March 31, 2020 which permitted rations to be given only to ration card holders. The Court found a bold and novel way out. The Court observed that the March 31, 2020 G.R. did not refer to the March 29, 2020 G.R. and ordinarily if a Government Resolution has to be superseded it has to be specifically mentioned. Thus G.R. dated March 29, 2020 survived despite the G.R. dated March 31, 2020 holding otherwise and thus non-ration card holders were also entitled to all the benefits including free food.
 

Free Tests

It is obvious that testing for COVID is extremely crucial for detection  and treatment. While there are a few government laboratories where the test is available for free, there are a large number of private laboratories where the test has to be paid for. Payment is capped at Rs. 4,500/- per test. One has to be tested twice. So if one is in a family of four the minimum test charges would be Rs. 36,000/-. It was impossible for the poor to bear this. A Petition was filed in the Supreme Court.

On April 8, 2020 the Court passed an order stating that whether in Government or private hospitals the COVID-19 test should be free. Private hospitals immediately intervened through Mr. Mukul Rohtagi. Union of India through Mr. Tushar Mehta also supported the modification sought by private hospitals. The modification was that free testing in private hospitals will now be allowed only for those poor persons covered by Ayushman Bharat scheme. For others, the State may include such other economic categories as it thinks fit. At least ,more than 50 million poor persons in India are not covered by this scheme. The Government laboratories do not have enough testing kits. Thus a large number of poor persons cannot be tested even if they have symptoms. There is no reason why private laboratories which earn millions should not be asked to do some charitable work. Many of them are situated in charitable hospitals whose avowed purpose is public charity. At the minimum the Court should have asked the private hospitals to do these tests free and directed the Government to pay for these tests.
 

PM Cares Fund

Immediately after the announcement of the lockdown, the PM Cares fund was set up. There were three issues. First, whether the PM Cares fund should at all have been set up. Second, matters concerning the transparency and accountability of the fund. Third, whether the CSR benefit given to Corporates should be only for the PM fund and not for the CM’s (Chief Minister) fund. 

Section 135 of the Companies Act, 2013, requires all companies, having net worth of Rs. 500 crore, or turnover of Rs. 1000 crore or more or a net profit of Rs.500 crore or more during the financial year, to spend in that year, at least 2% of the average net profits of the company, in activities enumerated under clauses (i) to (xii) of Schedule VII of the Companies Act, 2013 which are primarily charitable activities.

The Central Government, by a Circular dated March 23, 2020, informed that spending of CSR funds for Covid-19 is a permissible form of CSR activity. It was declared that funds may be spent on activities enumerated under clauses (i) and (xii) of Schedule VII of the Companies Act, 2013. On March 28, 2020, an Office Memorandum was issued by the MCA notifying that all donations made to the PM Cares fund are eligible to be qualified as CSR expenditure under clause (viii) of Schedule VII.

Clauses (I) and xi are as follows

• (i) Eradicating hunger, poverty and malnutrition, promoting health care including preventive health care and sanitation including contribution to the Swachh Bharat Kosh set-up by the Central Government for the promotion of sanitation and making available safe drinking water.

• (xii) disaster management, including relief, rehabilitation and reconstruction activities

On April 10, 2020, the MCA in FAQ 2 has clarified that ‘Chief Minister’s Relief Fund’ or ‘State Relief Fund for COVID-19’ is not included in Schedule VII of the Companies Act, 2013 and thus any contribution to such funds shall not qualify as admissible CSR expenditure.

On a perusal of clause (i) Schedule VII, it is evident that activities which promote health care, including preventive health care, would constitute CSR related activities. Thus, any contribution towards any activity promoting health care and preventive healthcare, would form a part of CSR related activities. The contributions made to State relief Funds, in order to mitigate the spread of Covid-19 would fall under this clause.

Thus ordinarily the CSR spent by donating to State funds/ CM funds to deal with COVID 19 should be permissible. But the Central Government says no. This would lead to Corporates funding the PM fund and avoiding CM funds. Mahua Moitra challenged this in the Supreme Court. On May 5, 2020 the SC refused to interfere by stating that this issue should be debated in Parliament and also that no corporation had challenged this. Which corporate house will dare to challenge this? In any event the matter was of public interest concerning as it did the interpretation of law and Constitution. The Supreme Court ought to have gone into it but did not.

There is also the question of why such a fund was needed when there already existed the PM’s national relief fund which is meant for disaster relief and has, it appears, in excess of Rs. 2200 Crores. In addition there appears to be no transparency and accountability as regards the PM Cares Fund except that the accounts will be audited. So another Petition was filed. Ordinarily such a Fund would be audited by the CAG and the report placed before Parliament. This Petition was dismissed by the Supreme Court on April 13, 2020 by saying that it was a misconceived Petition.

On the other hand, the Bombay High Court, Nagpur Bench on May 13, directed the Union of India to file a reply to a Petition which demanded a CAG Audit and full disclosure to the public of the PM Cares Fund.  On a slightly different issue, the Madhya Pradesh High Court and the Kerala High Court set aside the condition imposed by lower Court while granting bail that a certain amount should be deposited in the PM CARES Fund. On the other hand the Jharkhand High Court made such a deposit a condition for granting bail.
 

Conclusion

The refusal of the Supreme Court to exercise their power of judicial review in effective ways is not something which started with COVID 19 litigation. It has only became stark in recent times. Nobody was asking for the lockdown to be lifted; nobody was asking for the curtailments of civil liberties to be altogether removed; nobody was asking the Supreme Court to play doctor. The Petitions were filed essentially for the poorest of the poor who were dying by the hundreds not because of COVID but because of the job losses, because of complete lack of food, because of complete lack of planning for ensuring livelihoods during the lockdown.  Undoubtedly, this was an unprecedented situation in which the Government had to be allowed a certain freedom to act as it saw fit. But to completely abdicate its responsibilities towards the poor was something shocking.

The High Courts, like at the time of the 1975-77 emergency have shown much more enterprise and courage. Of course, not all High Court judges have responded with the same activism and there are many judgments of many High Courts which essentially follow the pattern set by the Supreme Court.

The Supreme Court’s role in respect of the Kashmir crisis or in dealing with NRC/ CAA, or the recent Delhi riots was clearly indicative of the times to come. It is not the case that in earlier years the Supreme Court has consistently been pro-people. In every decade there have been many judgments which cast a shadow on the Supreme Court’s functioning. Whether it was the Bhopal dispute or the issue of Narmada oustees; whether it was the retreat on labour jurisprudence in the 1990s or the criminal jurisprudence soon after; whether it was the Constitutionality of TADA, POTA and AFSPA or its continuing mandamus in Assam NRC; whether it was the Ayodhya dispute or the Hindutva Judgments; the Supreme Court’s role has come into question from time to time. 

Possibly, however, COVID-19 is the darkest phase in the history of the Supreme Court when it abdicated its responsibility at one go towards hundreds of millions of destitute and marginalised people and this record will take some beating in the decades to come.

(The author is a senior counsel in the Bombay High Court and has been appearing in several matters related to the COVID 19 pandemic and is also national vice president, People’sUnion for Civil Liberties, PUCL)

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Criminal Defamation a Tool in the Hands of the Corporates, Sedition in the Hand of the State

The recent judgment of Supreme Court upholding the constitutional validity of criminal defamation provisions has been rightly criticised. Undoubtedly the provision of criminal defamation violates the fundamental right to freedom of speech and expression and should have no place in the law. 

While agreeing broadly with all the reasons given for criticising the Judgment, I feel it is also necessary to highlight the use of criminal defamation against activists and civil society organisations which has increased over a period of time.

United Phosphhorous and Vapi Industrial Association filed a criminal defamation case in 2013  against Rohit Prajapati an activist working for decades on environmental issues in Gujarat and across the country. He made a statement against the increasing pollution at Vapi, Gujarat (which any person with a slight sense of smell can be hit by when passing through the city) and the sub standard functioning of common effluent treatment plants in the region.

He is facing a criminal defamation case in Vapi in addition to a case filed against him for damages of Rs. 25 crores. Rohit has to regularly give up his normal work and attend the Vapi Criminal Court for marking his attendance.

Kheti Virasat Mission an organisation working in Punjab has been facing a defamation trial in Mumbai since 2006 because they said that indiscriminate use of pesticide is harmful for agriculture.

Similarly Greenpeace has been facing a trial at a Court in Mumbai in respect of a report concerning Pesticides found in tea.

Rajiv Trivedi, an Additional Commissioner from Hyderabad has filed a criminal defamation case against Civil Liberties Monitoring Committee concerning a statement made by the committee about the Hyderabad Police’s involvement in Sohrabuddin encounter case.

Jeans Knit Care Limited filed a criminal defamation case against the Netherlands based International organisation Clean Clothes Campaign for pointing out bad working conditions in the garment industry in India.

Similarly Multi-Commodity Exchange (MCX), the financial body filed a criminal defamation against Ajay Shah, a leading economist for having criticised its functioning.

These are but a few examples of civil society organisations facing criminal defamation cases especially from big corporates. Undoubtedly the Corporates also file what are known as SLAPP Suits (Strategic Law Suits Against Public Participation) against civil society organisations and individuals.

Many organisations like Greenpeace, Centre for Science and Envrionment, Narmada Bachao Andolan and others are repeatedly subjected to civil suits for injunction and damages on the allegation that defamatory statements are being made.
While the Supreme Court was considering only the criminal law of defamation, the misuse of the civil law by the Corporates needs to be equally examined.

But coming back to the issue of criminal law of defamation and its impact on civil society organisations and activists, there are four  reasons given by the activists which make them vary of the criminal law of defamation.

First, a defamation case can be filed anywhere. The law being that such a case can be filed by the person defamed in any place where he is defamed. So, Kheti Virasat Mission which works in Punjab gave a statement about pesticide industry to a newspaper in Delhi is facing criminal prosecution in Mumbai because the Company says its officers read the newspaper in Mumbai.

Second, coupled with the above, the requirement of personal appearance in criminal matters (which is not a requirement in civil matters) causes tremendous hardship. While on applications, the criminal courts do at times give exemption from personal appearance, this does not happen in all cases and if you miss a date without having exemption, a warrant can be issued. Everyone, including the higher courts, know that these criminal cases can go on for years together.
Third, Truth by itself is not a defence in criminal defamation which is not the case in civil defamation.

Fourth, there is always a possibility of conviction and jail sentence.

All the above, can have a chilling effect not just on persons who are sued but also on others. Invariably newspapers get sued along with the individuals whose statements are quoted and the newspapers start becoming extra cautious in what they quote.

Increasingly the criminal law of defamation is being used against civil society organisations and activists across the country. It is a clear division of labour between the large corporates and the State.

When you criticise the state, charges of sedition, hurting religious sentiments, etc. are put. When you criticise the corporates, civil or criminal defamation cases are filed. Freedom of speech and expression is attacked from both sides and in that context the judgment of the Supreme Court upholding the criminal defamation provisions is highly regrettable.

(The author is a senior advocate in Mumbai)

The post Criminal Defamation a Corporate/State-driven tool against Activists: Six Examples appeared first on SabrangIndia.

Image Courtesy: PTI

The only clarity about the “triple talaq judgment” in Shayara  Bano v Union of India and others is that instantaneous triple talaq has been struck downby the Supreme Court. This article attempts to throw some light on the judgment’s logic, meaning, and implications. 

The immediate questions that come up are: Does the judgment ban only instant triple talaqor all kinds of talaq? Does it hold instantaneous triple talaq as constitutionally bad? Does the Supreme Court hold that personal laws can be tested on the anvil of constitutional law? Has the Supreme Court said anything new or has it merely repeated what it had stated in earlier judgments— especially in the case of Shamim Ara?¹  Most importantly, what is the way forward?

Counterproductive in the Long Run
While the judgment needs to be welcomed for taking a small step in favour of women’s rights, even the much hailed opinion of Justices Nariman and Lalit remains what I would call a “safe” judgment. They struck down talaq-el -biddat on extremely narrow constitutional grounds when they had the opportunity to strike it down on a variety of grounds making it a case of lost opportunity for gender justice. I will try to explain herein why, in fact, the majority judgment may even prove to be counterproductive in the long run. 

Of course, there can be a debate as to whether the judiciary should at all intervene in matters of personal law or whether this should be left to the legislature. Even when it comes to the legislature, the issue would still beabout whether the legislature should step in only when the community demands it or should it even otherwise carry out its “obligation” under the Fundamental Rights so asto bring about reforms in religious practices and law. The other important factor is whether (with the growing clout of the Bharatiya Janata Party (BJP) and the Rashtriya Swyamsevak Sangh (RSS) one should call for changes in personal laws of minority communities at all, as this can be used as a stick to beat them with and become a vehicle for the majoritarian agenda. 

I do not go into these debates in this article. However, I wish to make my position clear because some of my conclusions  are coloured by my opinion on these issues. I do believe that when it comes to gender equality, the constitutional courts should and do have the power to strike down laws—personal or otherwise—which are arbitrary, discriminatory, or against the broader framework of Article 21,that is,against the dignity of women. I am also firmly of the view that no such discrimination, arbitrariness, or erosion of dignity can be permitted on the grounds that a particular practice or law is an essential or non-essential part of that religion. Once any provision of a “personal law” is found to violate a constitutional mandate, it needs to go. Laws, personal or otherwise, need to be tested on the anvil of the Constitution and not on the basis of whether that law is based on a true interpretation of a particular religious text.  

I also believe that all “personal laws,” whether Hindu, Christian, Muslim or Parsi, in varied ways discriminate against women. When most of the political parties or fundamentalist groups speak about a uniform civil code (UCC), they are concerned with “uniformity” and not with “gender justice”. We can thus end up having a UCC which  uniformly oppresses women. However, if, at some stage, a uniform law which removes all gender discrimination as well as discrimination on grounds of sexual orientation is brought in, I would welcome such a law. That I do not see such a model law being enacted even in the distant future is a separate issue. In any case, at present, we are left with judicial intervention for striking down pernicious personal laws, and it is in this context, that I am disappointed with the present judgment. 

Issues before the Court
A constitutionbench of five judges decided the case. Three separate judgments were given. The first by Justice Khehar and Justice Nazeer, the second by Justice Nariman and Justice Lalit, and the third by Justice Kurian Joseph. As a result, there is no majority judgment and only those aspects of any of the judgments which have the affirmation, in aggregate, of at least three judges can be said to be laying down the law. 

All the five judges agree that the only issue to be decided concerns talaq-ul-biddat or what is commonly known as instantaneous triple talaq. They do not  venture into the legality or constitutionality of other forms of unilateral talaq or other aspects of Muslim personal law such as polygamy. 

The common meeting ground of all five judges (as accepted by lawyers on both sides) was that personal laws can be challenged only if they have been legislated and not if they are purely in the realm of non-legislated practices. It was also agreed by all sides that talaq-e-biddat was a pernicious practice. The question was whether it could be struck down by the court. 

Forms of Talaq
Talaq-e-biddat is practised only by Sunni Muslims and that too only those Sunni Muslims who belong to what is known as the Hanafi School. Sunnis are the majority among Muslims in India and amongst them, an overwhelming majority belong to the Hanafi school. Crores of Muslims in India would consequently be affected by this judgment. 

Under the Islamic law, two other methods of talaq are also recognised, namely talaqahsan and talaqhasan. All the three forms of talaq are unilateral (that is, they do not require the consent of the wife) and can only be exercised by Muslim men. Talaqhasan and talaqahsan, however, are not instantaneous and require a certain time frame for them to become effective. They are also revocable during this time period. Talaqahsan consists of a single pronouncement of divorce made during the period between menstruations followed by abstinence during the period of iddat. Thus, it takes effect only at a future date. Talaqhasan consists of three pronouncements made during successive tuhrs (period between menstruation) and no intercourse taking place during this period. Talaq-e-biddat consists of three pronouncements during a single tuhr, whether in one sentence or in separate sentences. It takes effect immediately. Talaqahsan and talaqhasan are spread over time, arerevocable, and are also subject to a process of reconciliation. But talaq-e-biddatoccurs at one go, is not revocable, and not subject to any reconciliation attempts.  Talaq, its forms,its legality and propriety have been much discussed in India by Muslim scholars and since at least the last hundred years— by various courts.  

Earlier Views of Supreme and High Courts
Initially, the courts were of the view that talaq-e-biddat, while being a pernicious practice was legally valid. The argument was that “talaq-e-biddat was good in law but bad in theology.” Of late, the Supreme Court and the various high courts have been laying down strict conditions under which talaq can be held to be valid and this culminated in Shamim Ara’s case (supra) in which  the apex Court held talaq-e-biddat to be unlawful.  It observed: 
 
“13…The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and wife by two arbiters- one from the wife’s family and the other from the husband’s, if the attempts fail, talaq may be effected. In RukiaKhatun Case the Division Bench stated that the correct law of talaq as ordained by the Holy Quran is : (i) talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the  other from the husband by his. If their attempts fail, talaq may be effected. …We are in respecful agreement with the abovesaid observations made by the learned Judges of the High Courts.”

The Court also affirmed the earlier view of Justice Krishna Iyer when he was a high court judge observing:
“..The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions…It is a popular fallacy that a Muslim male enjoys, under the Quoranic law, unbridled authority liquidate the marriage.”
In Shamim Ara’s case, the Supreme Court held that since in instant talaq there is no scope for reconciliation, nor can reasons for such talaq be tested, such talaq would be bad in law.  This has also been followed by a number of high court judgments which say the same. Justice Khehar (alongwith Justice Nazeer) felt that Shamim Ara was not good law while the others agreed with the Shamim Ara observations.

Muslim women on the other hand have to take recourse to Dissolution of Muslim Marriages Act, 1939 which requires them to approach the Court for divorce.

All the judges agreed that though this form of talaq is not mentioned in the Koran, it has been practised across the world for almost 1400 years. Justice Khehar also relied on legislations in a number of countries (theocratic and otherwise) banning instantaneous triple talaq. He drew two conclusions from this. First, the fact that a  large number of countries had prohibited talaq-e-biddat was proof of it being a very widespread practice amongst the Sunnis. Secondly, Justice Khehar (along with Justice Nazeer) also came to the conclusion that this also showed that it can only be prohibited by a legislation and not by judicial action. 

Powers of Constitutional Courts
It is important to look at what the courts, most importantly the Supreme Court, can or cannot do under our Constitution. Article 13 of the Constitution provides that all existing laws at the time of the Constitution coming into force which are inconsistent with the fundamental rights chapter of the Constitution, shall be void to the extent of inconsistency. Similarly, in the future, no law which takes away or seeks to abridge any right conferred by the Fundamental Rights chapter shall be passed in the future. Right to equality, right to non-discrimination, and right to life and liberty are part of the Fundamental Rights chapter. The question that still remains is that while a law in violation of the fundamental rights can be declared as void, how do you define a law? More particularly, the question is whether personal law can be considered as “law” for being tested in the context of fundamental rights. Article 13 (3) (a) states that “ ‘law’ includes any ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law.”Therefore, even a custom or usage which is in violation of the fundamental rights can be declared as void or unconstitutional. 

At first glance, it would appear that personal laws which are essentially based on custom or usage would be “law” and susceptible to the rigours of the fundamental rights chapter. Thus, any personal law which is discriminatory towards women should not only be subject to constitutional rigour, but also be declared unconstitutional because discrimination against women is in violation of the fundamental rights. Forget instantaneous triple talaq, but any kind of unilateral talaq, or polygamy, or principles of other personal laws including Hindu law, which discriminate against women, should have been declared unconstitutional a long time ago. It is important to remember that the rights to pronounce talaq (instantaneous or otherwise) and to indulge in polygamy are rights only conferred on men and not women. Similarly, under Hindu law the father is declared as the natural guardian and only after him is the mother declared a natural guardian. Take for instance the Hindu Marriage Act which allows a man to marry if he has completed 21 years of age but a woman to marry if she has completed 18 years of age. Discriminatory practices against women are prevalent across various personal laws. 

While courts (including the Supreme Court) are in no position to formulate a uniform civil code (gender just or otherwise) one expected the Constitutional courts to strike down discriminatory aspect of the personal or family laws. But by and large the high courts and Supreme Court despite giving regular homilies on equality of women have failed to declare such laws as unconstitutional. This opportunity has again been lost in the triple talaq case. 

Does the 1937 Shariat Act Codify Muslim Personal Law?
Since it is generally agreed that personal laws which had not acquired a legislative flavour, that is, those personal laws not recognised through a legislation cannot be tested on the anvil of fundamental rights, the first issue was whether Muslim personal law had at all been legislated or not. In effect this required consideration on whether  the Shariat Act, 1937 amounted to the Muslim Personal law becoming, or being metamorphosed into   legislation. If the answer is yes then all aspects of Muslim personal laws could be tested against the Constitution. If the answer is no then they could not be. According to Muslim Personal Law Board, the 1937 Act was not meant for enforcing Muslim personal law which was enforceable in any case by itself but to do away with custom or usage which is contrary to the Muslim Personal Law. 
Section 2 of Shariat Act, 1937 reads:

“2 Application of Personal law to Muslims. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat, maintenance, dower and guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Justice Khehar (alongwith Justice Nazeer) and Justice Joseph held that the Shariat Act 1937 did not convert the Muslim personal law into a legislated enactment; that it remained uncodified and therefore could not be tested on the grounds of Constitutional violation. They held that it was enacted not to codify Muslim Personal Law or to make it into a legislative fiat but to clarify that non Islamic customs and usages which had crept into Muslim law would no more be held valid. On the other hand, Justices Nariman and Lalit held that all forms of talaq recognised and enforced  by Muslim personal law are also recognised and enforced by the Shariat Act. 

The judges observed that “it is very difficult to accept the argument on behalf of the Muslim Personal Law Board that Section 2 does not recognise or enforce triple talaq. It clearly and obviously does both, because the section makes triple talaqthe rule of decision in cases where the parties are Muslims.’” According to Justice Nariman, the Shariat Act codified the Muslim personal law and therefore the provisions of Muslim personal law were liable to be tested on Constitutional grounds and if found to be in violation of the fundamental rights chapter were liable to be struck down.

What is crucial here is that the three judges have held that Muslim Personal Law did not get codified, or to use their words metamorphosed into a legislation, and therefore could not be tested on the touchstone of the Constitution. Justice Khehar and Nazeer concluded that in view of this, instant triple talaq which continued to be part of the personal laws could not be held unconstitutional. Justice Kurian Joseph, on the other hand, while agreeing with Justice Khehar that the Shariat Act, 1937 did not codify Muslim personal law came to the conclusion that instant triple talaq was against the tenets of the Quran and was thus not part of the personal laws and therefore at the highest amounted to custom or usage which was pernicious and not part of Muslim personal law and thus bad in law. He therefore agrees on the fundamentals with the judgment of Justice Khehar but disagrees on the details.

The logic used is that there are various sources of Islamic law but that the Quran is the main source while all other sources are supplemental. If Quran prohibits a practice, such a practice cannot become part of Islamic law or Shariat merely because other sources permit it. According to Justice Joseph, the Quran prohibits or frowns upon instant triple talaq and therefore instant triple talaq cannot be considered as part of Shariat. Therefore, since the 1937 Act says that the shariat is the rule of decision in matters including talaq and since instant triple talaq was never a part of theShariat, it has to be prohibited. The prohibition here flows from the reading of theShariat Act and not from applying principles of the Constitution of India. 

Justice Nariman, on the other hand concludes that the Shariat Act, 1937 converts the Muslim personal law into a legislated law and thus it can be tested on the anvil  ofconstitutionality. Having thus held,  thejudge should have tested triple talaq to see whether it is discriminatory towards women or whether it is in violation of dignity of women. Triple talaq is not available to women and is on the face of it discriminatory.  Even talaq is violative of the dignity of women for various reasons including the repeated observations of the Supreme Court over the years which imply that if a woman is not “obedient” or “docile” it may be a good ground for talaq. This is nothing else but reaffirmation of patriarchal values. These should have been tested at least by Justices Nariman and Lalit since they did go into the question of the constitutionality of triple talaq. The opportunity was however missed. 

Does Arbitrary State Action Violate Fundamental Rights?
Justice Nariman treads a narrow but largely uncharted territory. The earlier approach of the Supreme Court was to hold that the fundamental right to equality is violated if the state discriminated against a group without valid reasons.  This interpretation was given an expanded meaning and at least since 1974 the Supreme Court has been holding that even arbitrary state action (without being necessarily discriminatory towards a group or section) would also be an antithesis of equality. The courts could strike down a state action as being in breach of Articles 14 or 15 not only if it was discriminatory but also if it is arbitrary. State action can be of varied kinds. In the Macdowells case² the Supreme Court held that while ordinary state actions could be challenged as being arbitrary or discriminatory, a state action which is legislative can only be challenged under Articles 14 and 15 of the Constitution if it is discriminatory and not merely because it is arbitrary. 

In the triple talaq case, Justice Nariman (with Justice Lalit) took a constitutional stride by observing that the Macdowell case was wrongly decided and a legislative action could also be challenged as being manifestly arbitrary. The Court observed, “Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/ or without adequate determining principle. Also when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.”  On this aspect Justice Joseph Kurian agrees with Justice Nariman. In terms of constitutional jurisprudence, this is a major breakthrough and advance. Three of the five judges (and thus the majority) hold that  legislation can be challenged as being in violation of equality clause even if it is not discriminatory as long as it is arbitrary.

But this is where the concurrence stops because Justice Joseph holds that in the present case since the Islamic law has not been given legislative colour, there is no question of testing it on the grounds of being arbitrary. Justice Nariman on the other hand proceeds ahead and holds that triple talaq which is part of the legislated Shariat Act is arbitrary and thus needs to be struck down. 

While this is a leap forward constitutionally,  it hardly takes the case ahead in terms of the Muslim Personal Law. According to the majority, the Muslim Personal law has not been metamorphsed into legislation and thus it cannot be challenged as being unconstitutional. Tomorrow, if polygamy or other forms of unilateral talaq are challenged and the court feels that they are not against the Quran or Hadith, they will be held to be legally valid practices irrespective of whether they are arbitrary, discriminatory or against the dignity of women.Jurisprudentially the present case does not advance Muslim women’s cause even a wee bit. 

In terms of talaq-e-biddat, it only reiterates what the Supreme Court had already held in the case of Shamim Ara.

Justice Khehar’s opinion (supported by Justice Nazeer) is extremely curious to say the least. It also suffers from major contradictions. On one hand it holds that instant talaq is part of the Muslim Personal Law. He further goes on to hold that personal laws are themselves fundamental rights. Then he proceeds to say that, of course a law should be passed prohibiting instant triple talaq. The problem is if triple talaq being part of fundamental rights as he says is prohibited through legislation, such legislation itself can be challenged as being violative of fundamental rights. In fact such a legislation by his own logic would be bad in law as it would be in violation of fundamental rights. To top it, he grants injunction from the exercise of a right, which according to him is a fundamental right, for six months to begin with. This is unheard of and jurisprudentially unprecedented and untenable.  

It was also argued that Article 25 of the Constitution which protects religious freedom as a fundamental right would in turn protect talaq-e-biddat. The Supreme Court has time and again held that essential religious practises are protected by this fundamental right and cannot be tampered with. However Justice Nariman held that as regards talaq-e-biddat is concerned, it is only one form of talaq and the Hanafi school itself treats it as sinful but something to be tolerated. Justice Nariman therefore concluded that this form of talaq cannot be treated in any case as an essential religious practice. 

Justice Nariman held that obviously in instant talaq such attempts of reconciliation have no scope and such instant triple talaq would be treated as  valid even if it was not for any reasonable cause. In view of this, he held that instant triple talaq is manifestly arbitrary and therefore bad. 

Conclusions
The judgment through majority holds that unlegislated personal law does not have to pass the constitutional test but is only required to pass the religious test. It is irrelevant whether such a personal law is discriminatory or against the dignity of women. As long as it can be shown that the particular law flows from religious tenets it is to be held as valid. This is a major impediment for future actions especially against non-legislated personal law, which is what, according to the majority judgment, the Muslim personal law by and large is.. 

On the other hand, the constitutional test can be applied for legislated personal laws such as the Hindu Marriage Act, Succession Act, Parsi Marriage and divorce law, Christian Marriage and Divorce law, Indian Succession Act, etc, and  this judgment add an additional constitutional test, namely arbitrariness, for deciding the validity of such laws. Of course we will have to see how this works out in future when such laws are challenged. The experience of Indian courts even in respect of legislated laws has not been very encouraging when it comes to personal laws being challenged on the grounds of discrimination and dignity. 

While the judgment does declare instantaneous triple talaq as unlawful, it neither declares unilateral triple talaq as unlawful nor does it pave the way for doing so. The majority judgment declares instantaneous triple talaq as unlawful but it does not declare it as unconstitutional–the difference being quite significant. Though the judgment does advance the cause of gender justice on the issue of instantaneous triple talaq it does not open the doors of judicial review in other matters of the Muslim Personal Law. While the opinion of Justices Nariman and  Lalit does find instantaneous triple talaq as being arbitrary and therefore violative of constitutional guarantee of equality, this opinion does not find (in fact does not go into the issue) of instantaneous triple talaq as discriminatory towards women.

However the judgment is still a partial victory for Muslim women for two reasons. First, five Muslim women facing all odds were able to take on the might of the fundamentalists upto the Supreme Court and this by itself is a major success. Second, the amount of publicity and buzz the case and the judgment has generated, including favourable interventions by various women’s organisations working with Muslim women, will go a long way in empowering Muslim women. Unlike the case of Shamim Ara the present one has been discussed in nooks and corners of the country. A large number of Muslim women are now aware that instant triple talaq is not legal. Immediately after the judgment, there were reports of Muslim women approaching police stations to demand action against their husbands for giving them instant triple talaq. The question is not whether approaching the police station is the right procedure to be adopted but that these women feel enabled and invigorated by the knowledge that the highest court has recognised certain rights, and declared a practice as pernicious.

 
Notes
¹ Shamim Ara v. State of U.P. 2002 (7) SCC 518
² State of A.P. versus McDowell & Co. 1996 3 SCC 709
 
(This article appeared in the Economic and Political Weekly and is being re-published with permission of the author)
 

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Equally important, and possibly having broader repercussions is the order of the Court issuing contempt notice against Arundhati Roy who had written an article in the Outlook Magazine (issue of May 12, 2015) where she had made scathing remarks against the Police, the State  and the Central Governments. She has given her version (which is not only her version but a version shared by Saibaba’s family and many other democratic rights activists) as to how he was abducted and then shown to be arrested and how, thereafter, he was treated in prison.

It is important here to recognize that both the Case Diary and Report under Section 173 are entirely in the hands of the investigating agency, be it the police or any other agency. They can be easily doctored or manipulated.

It is one thing for the Court to issue contempt notice against her for scandalizing the judiciary (which in my opinion she did not do), it is altogether another thing to condemn her for expressing her views on her version of how Saibaba was treated by the police and her trenchant criticism of the authorities. The Court describes her observations as “surly, rude and boorish attitude of the author in (a) most tolerant country like India.”

The court observes that she has written the article with a mala fide motive against the police, State government and Central Government, all of which, reveal a game plan: to ensure that Sai Baba gets bail. The Court further observes, “Is it not the fact that the Central Government, the State Government, the police machinery and the armed forces are fighting for prevention of unlawful and terrorist activities in the country when the Naxal plague has taken a pincer grip.” And finally, “This Court is also surprised that despite intemperate and humiliating language used against the Central Government, State Government, the police machinery and the armed forces, they have not taken any action against the author who, in the name of freedom of speech, is exploiting the situation.”

 Yes she has castigated these bodies in extremely severe terms. But that is what journalists do. Are we to now understand that in a democracy (such as our country is) the police, the armed forces, the State government or Central government(s) cannot be criticised, their methods never be doubted? That the version of these agencies of the state has always to be believed? That we must need accept (despite contrary proof) that they always act with bona fide motive and intent and that any condemnation of them is actuated by mala fides? Does not the state of Maharashtra lead the country in custodial deaths? Have we to overlook that time after time the Courts themselves acquit persons because the investigation has been unprofessional, often deliberately so conducted? Are we to believe that the investigation in, for instance Salman Khan’s case, that was botched up (this is what the court has virtually said) because of incompetence and not driven by some extraneous, even compromising reasons? There are reports after reports from, not just in Maharashtra, but from across the country, which speak of extremely oppressive prison conditions. Should we not continuously remind ourselves that the origin of public interest litigation in India was poor prison conditions (in the Sunil Batra and Husseinara Khatoons Cases)?[1] Are we to now forget that the Supreme Court has had to develop a new remedy of granting compensation through writ petitions when they discovered in Rudul Shah’s case that the poor man had completed his jail sentence in 1969 and the jail authorities had ‘forgotten’ to release him till 1982?[2] The Supreme Court itself appointed a committee to go into wide scale human rights violations by armed forces in Manipur. The pendency of a number of Public interest litigations concerning prison conditions and lock ups coupled with the fact that they are being entertained by the Bombay High Court, is itself an indication that the situation has not changed over the years.

Arundhati Roy says Saibaba is innocent. The Court takes exception to this. Day in and day out, on social and visual media we see debates about whether the Talwars were innocent, whether Salman Khan was innocent, whether Peter Mukerjea is innocent and many more such stories. And some of these are even after conviction or acquittal. Anybody who has witnessed, seen or read these debates will realize that most of the panelists as also the anchors (on television) are completely ill informed but still express, very passionately, their views.

Arundhati has given her version of events. Having dealt with human rights cases all my practicing life, having been part of number of fact finding committees and citizens tribunals on police and armed forces brutality and corporate crimes across the years, having directly dealt with victims of state, communal, class and caste violence over the decades, I feel that Arundhati’s version is entirely possible and believable. I refuse to treat the police version or the reports of Government medical officers as sacrosanct. Am I to be castigated for this?

The Court further observes: “Is it not the fact that the Central Government, the State Government, the Police machinery and the armed forces are fighting for prevention of unlawful and terrorist activities in the country when the Naxal plague has taken pincer grip.”

While I am not a votary of violence, I personally believe that it is the policies and practices of the Central Government, State Government, the police machinery and armed forces coupled of course with misguided corporate interests which have, at least partially, been the cause of the birth and growth of Naxalism. I personally believe that many of the so called battles against Naxalism, are just a war against ordinary tribals (citizens of India) to promote mining interests. Did not the Supreme Court of India not hold that Salva Judum started by the State Government allegedly to counter Naxalsim was an unlawful body?  Am I not entitled to this view and to express it?

At least the Supreme Court seems to believe that I am entitled to this view. In Arup Bhuyan’s[3]  and some other cases the Supreme Court cited with approval the following observations of the US Supreme Court in Brandenburg Vs. Ohio, 395 US 444(1969), “………. mere advocacy or teaching the duty, necessity, or propriety of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed 'to teach or advocate the doctrines of criminal syndicalism' is not per se illegal. It will become illegal only if it incites to imminent lawless action.”

In a recent case, the Constitutional Bench of the Supreme Court dealing with restraints on media publication of judicial proceedings, observed: “Freedom of expression which includes freedom of the press has capracious content and is not restricted to expression of thoughts and ideas which are accepted and acceptable but also to those which offend or shock any section of the population.”

I also feel that the issue of contempt notice against Arundhati Roy is wrong and she has not committed any contempt as citing examples of bail granted by other judges in other courts in no way casts aspersions on the judge who refused bail in the present case.  I would just like to conclude with the following:

Since 1952, repeatedly, while dealing with the issue of criminal contempt the Supreme Court has cited with approval the words of Lord Atkin: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.” I am sure this also includes ordinary women.

(The author is a senior advocate in Mumbai)

The post Flawed Verdict: The Bombay High Court judgement refusing bail to GN Saibaba appeared first on SabrangIndia.

Mihir Desai, advocate for Sohrabuddin in Mumbai

In December, 2005 Rubabuddin Shaikh wrote a letter to the Chief Justice of India complaining about the killing of his brother Sohrabuddin and the disappearance of his sister in law Kauser Bi at the hands of the Gujarat Police, the Anti Terrorism Squad (ATS) and the Rajasthan Police.  The Court forwarded the letter to the Director General of Police for an enquiry. During the pendency of the enquiry Tulsiram Prajapati, a witness to the abduction of Sohrabuddin and his wife Kauser Bi was, also  killed in an encounter (extra-judicial killing). Rubabuddin approached the Supreme Court seeking a CBI investigation.

The Supreme Court first asked the Gujarat Police to investigate the matter. Certain police officers (prominently, Vanzara), were arrested. Charge sheets were filed and eight Action Taken Reports were produced before the Supreme Court by the State of Gujarat. Unsatisfied, the Supreme Court in 2010 came to the following conclusion:

“From the above factual discrepancies appearing in the 8 Action Taken Reports and from the Charge Sheet we therefore feel that the Police Authorities of the State of Gujarat had failed to carry out fair and impartial investigation as we initially wanted them to do."

The Supreme Court directed the CBI to carry out the investigation including on the issue of a larger conspiracy. The CBI started investigating the case and, on the basis of call records of the police officials and other evidence, submitted a chargesheet on 23.7.2010 in which Amit Shah was named as a co-conspirator. The chargesheet states that Amit Shah was the lynchpin in the conspiracy. Amit Shah was arrested. On 29.10.2010 Amit Shah was granted bail by the Gujarat High Court, The CBI appealed to the Supreme Court against this order. The bail was not cancelled but Amit Shah was asked to not enter Gujarat.

In its charge sheet, the CBI claimed that Amit Shah presided over an extortion racket and that it was under his pressure and at his behest that the Gujarat police tried to cover up his involvement in the killings. Phone records of the police officials at the time of killings of Sohrabuddin, Kauser Bi and Tulsi Prajapati were used to show that these police officers were in constant touch with Amit Shah. The trial was transferred to Mumbai.

Subsequently, Amit Shah filed a Discharge Application in the Sessions Court at Mumbai. The evidence that the prosecution had (CBI) was damning. G.C Raigar, Additional Director General of Police (ADGP) Home Guard, Gujarat who had the  Additional Charge of ADGP CID Crime, and was in charge of the  investigation into the case, had stated that Amit Shah personally told him not to involve high level police officials in the crime. Obviously if high level police officials were not involved, the link to Mr. Shah could not be established. The Patel brothers of Popular Builders, whose statements were also recorded, have stated that Amit Shah personally told them to give a false statement against Sohrabuddin and that they paid a large amount of money to a senior police officer for being paid to Mr. Shah so as to ensure that they are not falsely implicated in a crime.
There were also the call records between Amit Shah and the officers involved in the murder, during the killings. There were certain other allegations too against Mr. Shah.

It was the CBI’s investigation which led to his arrest and to the transfer of the case outside Gujarat…… Shockingly however, it chose not to challenge the order of the Sessions Court.

However, it was now 2014 and, by now the CBI had decided to do a U turn. The case was not effectively defended in the Sessions Court.  The Sessions Court discharged Amit Shah on 30.12.2014. According to me, there is sufficient material against Mr. Shah to put him on trial. It was the CBI’s investigation which led to his arrest and to the transfer of the case outside Gujarat. At the stage of discharge the Court is not required to weigh the evidence in detail. The Court is only required to see whether it is a fit case for proceeding on trial. CBI had found it a fit case to proceed on trial  by filing the charge sheet. In fact, ordinarily the CBI would have challenged the discharge order of the Sessions Court in the High Court – more so in a sensitive case like this where it had been appointed by the Supreme Court as the Investigating Agency and the trial had been transferred at the instance of the CBI due to the involvement of Amit Shah.

Shockingly however, it chose to not challenge the order of the Sessions Court. 

Rubabuddin,  Sohrabuddin’s brother challenged the order in the High Court.  He was the person who had brought the case to light 10 years ago by writing to the Supreme Court. He had diligently followed it up in the Supreme Court and in the Sessions Court for all these years. Suddenly, within months after filing against the discharge, he decided to withdraw the case from the High Court. I am reasonably certain that this was due to extreme pressure brought on him. I can never forget the terror in his eyes and the helplessness when he did it. The question still remains. Why did the CBI not adequately defend the case in the Sessions Court and why did it refuse to file an appeal. Is it the caged parrot syndrome?

SOHRABUDDIN CASE FILE

(The author  is a senior advocate in Mumbai)
 
References:

The post CBI U-Turn against its own chargesheet in the Sohrabuddin case, the caged parrot syndrome? appeared first on SabrangIndia.

 
Rights or privilege?

The recent Allahabad High Court judgement ruling that Aligarh Muslim University is not a minority institution has sparked a nationwide controversy

The recent decision of the Allahabad High court effectively holding that the Aligarh Muslim University cannot claim minority status compounds the confusion created by the Supreme Court over the last 50 years in matters pertaining to rights of minority educational institutions.

But before we look at the Allahabad judgement and some of the other decisions of the Supreme Court it is necessary to contextualise the rights of minorities.

The yardstick for measuring the intrinsic strength of a secular democracy is how secure the minorities feel within the nation. No doubt, democracy is ultimately supposed to be the rule of the majority but at the same time there have to be inbuilt safeguards to ensure that a rule of the majority does not become tyranny by the majority. It is in this context that the rights of minorities acquire crucial significance.

Justice Jackson of the US Supreme Court rightly pointed out in the West Virginia State Board of Education case: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein".

Democracy is the rule of equality where all persons are treated as equal whether they belong to the majority or minority. It has been argued that the fact that the minorities are being treated as equals, and that too through a fundamental right, should satisfy and protect them. Where then is the need for special safeguards or separate fundamental rights? But as observed by the Supreme Court in the case of St Stephen’s College vs University of Delhi (1992): "The minorities do not stand to gain much from the General Bill of Rights or Fundamental Rights which are available only to individuals. The minorities require positive safeguards to preserve their minority interests which are also termed as group rights".

Similarly, in the St Xavier’s College case judgement of 1974, Justice Khanna observed: "The idea of giving some special rights to the minorities is not to have a kind of privileged or pampered section of the population but to give the minorities a sense of security and a feeling of confidence".

It has been internationally recognised that minorities need not just equal treatment but also special protection. It has been assumed, and rightly so, that the majority can look after and take care of itself in respect of protection of language, religion or culture.

In all functioning secular democracies, individuals and groups have the right to practice and propagate religion as a basic right. A secular state necessarily means the absence of any state religion. But this is a very restrictive definition. Secularism also means that the state shall protect those who do not follow the majority religion. It is thus crucial that sufficient protective measures exist for the religious minority groups to protect their religion.

There is a major difference between the Backward Castes and linguistic and religious minorities. The only way in which the Backward Castes can get out of their oppression in the long run is through a casteless society i.e. if they lose their caste status. The Backward Castes will benefit and in the ultimate analysis be rid of their oppression if they lose their caste identity and in that sense merge with the so-called mainstream. For the linguistic and religious minorities the issue is different. They want to retain their identity as separate linguistic or religious groups. As very rightly said, Jews do not want to be Catholics, Gujaratis do not want to be Maharashtrians and Muslims do not want to be Hindus. Looked at from this point of view, the stress laid time and again by the Supreme Court that all educational institutions should be melting pots for all communities is wide off the mark.

The Constituent Assembly recognised that religious and linguistic minorities have to be protected by allowing them to establish and administer educational institutions for conserving their script, language or religion and giving them adequate facilities so that they are not hampered in this. It is in this context that Articles 29 and 30 of the Constitution have to be viewed.

The test of whether an educational institution is actually a minority institution or not should be whether it in fact protects or promotes a minority script, religion, language or culture. But over the last 50 years the Supreme Court has consistently negated this argument

"29(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

"30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

"(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it was under the management of minority, whether based on religion or language."

It is very clear from Articles 29 and 30 and also from the discussion above that the purpose of granting protection to minority educational institutions is to ensure that the minorities, religious or linguistic, are able to protect their script, language, religion or culture. Thus, the test of whether an educational institution is actually a minority institution or not should be whether it in fact protects or promotes a minority script, religion, language or culture. But over the last 50 years the Supreme Court has consistently negated this argument.

The Supreme Court has throughout held that the only test to determine the minority status of an educational institution is whether it is established and administered by a minority and not whether it is running for the benefit of the minority. To put it simply, if five Maharashtrians get together and start a Marathi medium school in Mumbai it will not be treated as a minority institution. But if five Gujaratis get together and start a Marathi medium school in Mumbai it will be treated as a minority school. For example, in Mumbai there are colleges run by Sindhis which do not give preference to Sindhi students, do not necessarily prefer Sindhi teachers, do not offer Sindhi as even an optional subject but are granted minority status.

Because of this skewed interpretation by the Supreme Court, the only reason why most of the institutions claim minority status is to get certain benefits for the management and not for the script, language or culture of the minority that they represent. There are, broadly, three benefits available to a minority institution that are not available to other institutions:

(a) Minority educational institutions do not have to maintain reservation in employment or admissions for SCs, STs and OBCs as required to be done by other educational institutions.

While on the one hand, genuine minority institutions do not get adequate protection under Article 30, on the other hand fake minority institutions enjoy these rights and privileges. What is needed is a comprehensive overhaul of the Article 30 jurisprudence developed by the Supreme Court over the last 50 years 

(b) In terms of control over employees, minority educational institutions have much greater powers than other institutions. For instance, in the selection of teachers and principals the minority educational institution can have a selection committee which does not include the university representative. Similarly, while in ordinary schools the headmasters normally have to be appointed on the basis of seniority, minority managements can select a headmaster of their choice.

(c) In matters of admission of students, minority educational institutions can have reservation of up to 50 per cent for students of their community.

Unfortunately, it has been observed that most of the managements seek minority status only to avoid reservation for Backward Castes and for victimising employees.

It is in this context that Aligarh Muslim University seems to have been ‘done in’ by a curious interpretation of the Constitution first by the Supreme Court and now by the Allahabad High Court.

The case of Azeez Basha vs Union of India (AIR 1968 SC 663) was decided by a constitutional bench of the Supreme Court in 1967. The question was whether certain amendments to the Aligarh Muslim University Act, 1920 affected the Muslim minority’s rights under Article 30(1). The court held that though the university came into existence because of the demands from the Muslim minority community and due to their efforts, it was in fact ‘established’ by a central legislation and hence could not be said to be ‘established’ by a minority.

This is and was an amazing decision. Having accepted and held that it was as a result of the efforts and aspirations of Muslims that the university was established, for the Supreme Court to turn around and hold that it was not a minority institution merely because it was formally brought into existence by an enactment is to make a mockery of minority rights. As the constitutional expert HM Seervai rightly pointed out, any university has two distinguishing features: firstly, it is incorporated by a sovereign and secondly, it is empowered to give its own degrees which are recognised by the sovereign. The only manner in which a community could establish such a university was by invoking the exercise of the sovereign power, which might take the form of either a Charter or an Act of the legislature. This, the Muslim community that had set up the Mohammedan Anglo-Oriental (MAO) College, did. They brought the university into existence in the only manner in which such a university could have been brought into existence, namely, by invoking the exercise by the sovereign authority of the legislative power.

It was the Muslim community that had provided the lands, money and other necessaries for founding the university and in that sense ‘founded’ the university. By the logic of the Supreme Court, though a university is an educational institution it can never ever get the character of a minority educational institution.

The same error has been committed by the Allahabad High Court in its October 2005 judgement in the case of Dr. Naresh Agarwal vs Union of India where certain amendments to the Aligarh Muslim University Act, 1920 were challenged. After the decision in the case of Azeez Basha, the Act was amended to incorporate specific provisions in the Act which categorically pointed to the fact that the university was established by Muslims. A further amendment stated that one of the objects for establishing the university was to ‘promote especially the educational and cultural advancement of the Muslims in India’. On the basis of this, a reservation for Muslim students in admissions was provided. This was challenged by some non-Muslim candidates.

It was argued that in view of the amendments of 1981 the basis of the Supreme Court decision in the Azeez Basha case had been removed and so Aligarh Muslim University could at least now be termed a minority educational institution. However, following the logic of the Supreme Court, the Allahabad High Court rejected this contention and effectively held that no university could ever be a minority institution.

In keeping with the past record of the courts, the decision is not at all surprising. While on the one hand, genuine minority institutions do not get adequate protection under Article 30, on the other hand fake minority institutions, which have been mushrooming only for the managements to derive personal benefits without having any impact on community rights, enjoy these rights and privileges.

What is needed is a comprehensive overhaul of the Article 30 jurisprudence developed by the Supreme Court over the last 50 years, which in my opinion has been totally wrong and not in consonance with the spirit of the Constitution. Minority status needs to be given only to those educational institutions which promote or protect the script, language, culture or religion of a minority grouping and the protection given to these institutions needs to be only to the extent that such protection furthers these goals. We cannot allow either the Backward Castes or employees to be sacrificed on the altar of such protection.

Archived from Communalism Combat, November 2005 Year 12  No.112, Cover Story 1
 

The post Minority institutions appeared first on SabrangIndia.

 
Rights or privilege?

The recent Allahabad High Court judgement ruling that Aligarh Muslim University is not a minority institution has sparked a nationwide controversy

The recent decision of the Allahabad High court effectively holding that the Aligarh Muslim University cannot claim minority status compounds the confusion created by the Supreme Court over the last 50 years in matters pertaining to rights of minority educational institutions.

But before we look at the Allahabad judgement and some of the other decisions of the Supreme Court it is necessary to contextualise the rights of minorities.

The yardstick for measuring the intrinsic strength of a secular democracy is how secure the minorities feel within the nation. No doubt, democracy is ultimately supposed to be the rule of the majority but at the same time there have to be inbuilt safeguards to ensure that a rule of the majority does not become tyranny by the majority. It is in this context that the rights of minorities acquire crucial significance.

Justice Jackson of the US Supreme Court rightly pointed out in the West Virginia State Board of Education case: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein".

Democracy is the rule of equality where all persons are treated as equal whether they belong to the majority or minority. It has been argued that the fact that the minorities are being treated as equals, and that too through a fundamental right, should satisfy and protect them. Where then is the need for special safeguards or separate fundamental rights? But as observed by the Supreme Court in the case of St Stephen’s College vs University of Delhi (1992): "The minorities do not stand to gain much from the General Bill of Rights or Fundamental Rights which are available only to individuals. The minorities require positive safeguards to preserve their minority interests which are also termed as group rights".

Similarly, in the St Xavier’s College case judgement of 1974, Justice Khanna observed: "The idea of giving some special rights to the minorities is not to have a kind of privileged or pampered section of the population but to give the minorities a sense of security and a feeling of confidence".

It has been internationally recognised that minorities need not just equal treatment but also special protection. It has been assumed, and rightly so, that the majority can look after and take care of itself in respect of protection of language, religion or culture.

In all functioning secular democracies, individuals and groups have the right to practice and propagate religion as a basic right. A secular state necessarily means the absence of any state religion. But this is a very restrictive definition. Secularism also means that the state shall protect those who do not follow the majority religion. It is thus crucial that sufficient protective measures exist for the religious minority groups to protect their religion.

There is a major difference between the Backward Castes and linguistic and religious minorities. The only way in which the Backward Castes can get out of their oppression in the long run is through a casteless society i.e. if they lose their caste status. The Backward Castes will benefit and in the ultimate analysis be rid of their oppression if they lose their caste identity and in that sense merge with the so-called mainstream. For the linguistic and religious minorities the issue is different. They want to retain their identity as separate linguistic or religious groups. As very rightly said, Jews do not want to be Catholics, Gujaratis do not want to be Maharashtrians and Muslims do not want to be Hindus. Looked at from this point of view, the stress laid time and again by the Supreme Court that all educational institutions should be melting pots for all communities is wide off the mark.

The Constituent Assembly recognised that religious and linguistic minorities have to be protected by allowing them to establish and administer educational institutions for conserving their script, language or religion and giving them adequate facilities so that they are not hampered in this. It is in this context that Articles 29 and 30 of the Constitution have to be viewed.

The test of whether an educational institution is actually a minority institution or not should be whether it in fact protects or promotes a minority script, religion, language or culture. But over the last 50 years the Supreme Court has consistently negated this argument

"29(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

"30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

"(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it was under the management of minority, whether based on religion or language."

It is very clear from Articles 29 and 30 and also from the discussion above that the purpose of granting protection to minority educational institutions is to ensure that the minorities, religious or linguistic, are able to protect their script, language, religion or culture. Thus, the test of whether an educational institution is actually a minority institution or not should be whether it in fact protects or promotes a minority script, religion, language or culture. But over the last 50 years the Supreme Court has consistently negated this argument.

The Supreme Court has throughout held that the only test to determine the minority status of an educational institution is whether it is established and administered by a minority and not whether it is running for the benefit of the minority. To put it simply, if five Maharashtrians get together and start a Marathi medium school in Mumbai it will not be treated as a minority institution. But if five Gujaratis get together and start a Marathi medium school in Mumbai it will be treated as a minority school. For example, in Mumbai there are colleges run by Sindhis which do not give preference to Sindhi students, do not necessarily prefer Sindhi teachers, do not offer Sindhi as even an optional subject but are granted minority status.

Because of this skewed interpretation by the Supreme Court, the only reason why most of the institutions claim minority status is to get certain benefits for the management and not for the script, language or culture of the minority that they represent. There are, broadly, three benefits available to a minority institution that are not available to other institutions:

(a) Minority educational institutions do not have to maintain reservation in employment or admissions for SCs, STs and OBCs as required to be done by other educational institutions.

While on the one hand, genuine minority institutions do not get adequate protection under Article 30, on the other hand fake minority institutions enjoy these rights and privileges. What is needed is a comprehensive overhaul of the Article 30 jurisprudence developed by the Supreme Court over the last 50 years 

(b) In terms of control over employees, minority educational institutions have much greater powers than other institutions. For instance, in the selection of teachers and principals the minority educational institution can have a selection committee which does not include the university representative. Similarly, while in ordinary schools the headmasters normally have to be appointed on the basis of seniority, minority managements can select a headmaster of their choice.

(c) In matters of admission of students, minority educational institutions can have reservation of up to 50 per cent for students of their community.

Unfortunately, it has been observed that most of the managements seek minority status only to avoid reservation for Backward Castes and for victimising employees.

It is in this context that Aligarh Muslim University seems to have been ‘done in’ by a curious interpretation of the Constitution first by the Supreme Court and now by the Allahabad High Court.

The case of Azeez Basha vs Union of India (AIR 1968 SC 663) was decided by a constitutional bench of the Supreme Court in 1967. The question was whether certain amendments to the Aligarh Muslim University Act, 1920 affected the Muslim minority’s rights under Article 30(1). The court held that though the university came into existence because of the demands from the Muslim minority community and due to their efforts, it was in fact ‘established’ by a central legislation and hence could not be said to be ‘established’ by a minority.

This is and was an amazing decision. Having accepted and held that it was as a result of the efforts and aspirations of Muslims that the university was established, for the Supreme Court to turn around and hold that it was not a minority institution merely because it was formally brought into existence by an enactment is to make a mockery of minority rights. As the constitutional expert HM Seervai rightly pointed out, any university has two distinguishing features: firstly, it is incorporated by a sovereign and secondly, it is empowered to give its own degrees which are recognised by the sovereign. The only manner in which a community could establish such a university was by invoking the exercise of the sovereign power, which might take the form of either a Charter or an Act of the legislature. This, the Muslim community that had set up the Mohammedan Anglo-Oriental (MAO) College, did. They brought the university into existence in the only manner in which such a university could have been brought into existence, namely, by invoking the exercise by the sovereign authority of the legislative power.

It was the Muslim community that had provided the lands, money and other necessaries for founding the university and in that sense ‘founded’ the university. By the logic of the Supreme Court, though a university is an educational institution it can never ever get the character of a minority educational institution.

The same error has been committed by the Allahabad High Court in its October 2005 judgement in the case of Dr. Naresh Agarwal vs Union of India where certain amendments to the Aligarh Muslim University Act, 1920 were challenged. After the decision in the case of Azeez Basha, the Act was amended to incorporate specific provisions in the Act which categorically pointed to the fact that the university was established by Muslims. A further amendment stated that one of the objects for establishing the university was to ‘promote especially the educational and cultural advancement of the Muslims in India’. On the basis of this, a reservation for Muslim students in admissions was provided. This was challenged by some non-Muslim candidates.

It was argued that in view of the amendments of 1981 the basis of the Supreme Court decision in the Azeez Basha case had been removed and so Aligarh Muslim University could at least now be termed a minority educational institution. However, following the logic of the Supreme Court, the Allahabad High Court rejected this contention and effectively held that no university could ever be a minority institution.

In keeping with the past record of the courts, the decision is not at all surprising. While on the one hand, genuine minority institutions do not get adequate protection under Article 30, on the other hand fake minority institutions, which have been mushrooming only for the managements to derive personal benefits without having any impact on community rights, enjoy these rights and privileges.

What is needed is a comprehensive overhaul of the Article 30 jurisprudence developed by the Supreme Court over the last 50 years, which in my opinion has been totally wrong and not in consonance with the spirit of the Constitution. Minority status needs to be given only to those educational institutions which promote or protect the script, language, culture or religion of a minority grouping and the protection given to these institutions needs to be only to the extent that such protection furthers these goals. We cannot allow either the Backward Castes or employees to be sacrificed on the altar of such protection.

Archived from Communalism Combat, November 2005 Year 12  No.112, Cover Story 1
 

The post Minority institutions – Rights or privilege? appeared first on SabrangIndia.