Section 35A – Criminalising lawyers’ strikes: the death knell of dissent

The bill seeks to criminalise strikes, boycotts, and abstentions from judicial work by labelling them professional misconduct. This provision is a clear violation of Article 19 (1)(a) and (b) of the Constitution, which guarantee freedom of speech and peaceful assembly.

Legal precedents that mitigate against this proposed law

1. Basheshar Nath CIT (1959 AIR 149): The Supreme Court held that fundamental rights are sacrosanct and cannot be taken away by legislative action. This provision seeks to suppress collective bargaining power and dissent, violating the core principles of free expression.

2. K. Rangarajan v. Government of Tamil Nadu (2003): While the SC ruled that government employees do not have an absolute right to strike, it never extended this ruling to the legal fraternity, which does not operate as a government body. Lawyers serve the cause of justice, and their right to protest unjust policies is non-negotiable.

3. Mazdoor Sangh State of Bihar (2004): The Court recognised that strikes and collective protests are essential tools in fighting government overreach. By criminalising lawyer strikes, the government intends to silence the loudest voices against its excesses.

This provision does not seek discipline, it seeks obedience a demand that lawyers become docile tools in the hands of an authoritarian regime.

Section 16 government infiltration of Bar Councils: a hostile takeover of justice

The bill proposes government-nominated members be appointed to Bar Council of India (BCI) and State Bar Councils. This is an unconstitutional violation of the autonomy of the legal profession and a direct threat to judicial independence.

Legal Precedents that mitigate against this incursion

Supreme Court Advocates on Record Association v. Union of India (2015) (NJAC Judgment): The Supreme Court struck down the NJAC Act, which sought to give the executive a say in judicial appointments. If the judiciary must remain independent, why should its gatekeeping body be controlled by the executive?

1. Chandra Kumar v. Union of India (1997): The SC reaffirmed that the executive cannot interfere with institutions that regulate the judiciary. Bar Councils are self-regulatory bodies and must remain free from political interference.
2. Indira Jaising Supreme Court of India (2017): The SC upheld the autonomy of legal professionals and emphasised that **independent bar councils are integral to judicial independence.

The Bar Councils were never meant to be puppets of the state. Allowing the government to infiltrate them will mean that every lawyer who dares to challenge the government will face disciplinary action from government-appointed stooges. This is nothing less than an institutional coup against the legal profession.

Section 26 – restricting entry into legal practice: a gateway to elite control 

The bill proposes new, arbitrary restrictions on who can enter the legal profession, making it harder for young law graduates to enrol. This is an elite, unconstitutional barrier that seeks to curtail the influx of young, bold, independent legal minds who might stand against government overreach.

Legal Precedents that counter this discriminatory move:

1. State of Maharashtra v. Manubhai Pragaji Vashi (1995): The SC held that access to the legal profession is a fundamental right tied to access to This bill erects unnecessary barriers and violates the principle of equality (Article 14).
2. All India Judges’ Association Union of India (2002): The SC ruled that judicial independence starts from the bar. If the bar is infiltrated, the bench will soon follow.
3. P. Gupta v. Union of India (1981): The SC emphasized that judicial independence is not just about judges it extends to legal education and the legal profession. The bill seeks to corrupt that very foundation.

A declaration of war against the legal profession?

This controversial bill is not about reforms it is about absolute control. It is a smokescreen to dismantle the autonomy of lawyers, install government loyalists in regulatory bodies, and silence every dissenting voice. The legal profession has always been the greatest obstacle to tyranny, and this government appears hell bent on bulldozing that resistance.

What makes this Bill a disgrace

1. It violates the fundamental rights of lawyers and law
2. It hands over legal regulatory bodies to government
3. It seeks to silence dissent by criminalizing
4. It curtails the judiciary’s ability to remain

The Supreme Court must strike down this abomination before it destroys the very fabric of justice in India. Lawyers across the country must rise, resist, and reject this sham of a bill.

The fight is not just for the legal community it is for every citizen who believes in democracy, accountability, and the rule of law.

The government fears independent lawyers because they expose its corruption and illegalities. This bill is its desperate attempt to enslave the legal fraternity. But let this be a warning: Lawyers do not bow to tyrants. They fight them, and they win.

Disclaimer: The views expressed here are the author’s personal views, and do not necessarily represent the views of Sabrangindia.

Related:

No toilets for women lawyers in Ooty court complex for the last 25 years!

Young, junior lawyers are not slaves, renumerate them decently; legal profession should not be an “Old Boys’ Club”: CJI DY Chandrachud

Lawyers must break the silence of complicity, question flaws of executive overreach: Kapil Sibal

The post The Advocates Amendment Bill, 2025: A blatant attack on lawyers’ autonomy and democracy appeared first on SabrangIndia.

By rejecting the mosque committee’s objection, have both the courts have effectively signalled a potential demise (or dilution of) the Places of Worship Act, 1991 (POW) whose constitutionality has been challenged by a lawyer associated with the right-wing Bharatiya Janata Party (BJP) and is currently awaiting a decision from the apex court?

The judge on the bench which granted ASI the right to continue with its survey  (Allahabad HC) observed that the ASI survey is necessary in the interest of justice (1). This statement begs the question – justice for whom? The Gyanvapi Masjid’s case is contentious; the claim being put forward is related to both claims of encroached land and the rights of religious minorities.

The hearings on and around this law, which was enacted in September 1991as a consequence to the violent mobilisations around the demand for the demolition of the then 450-year old Babri Masjid at Ayodhya-Faizabad had been only opposed by the BJP at the time. Today, the law that Parliament regarded as necessary consequential to those developments and the accompanying shrill demands of the Rashtriya Swayamsevak Sangh (RSS)-Viswa Hindu Parishad (VHP) campaign to re-open conflictual wounds and campaign for “re-claiming” thousands of others, is in serious danger of utter disregard and dilution. The PoW 1991 has, seemingly lost its significance, as the clamour for a temple at the Gyanvapi Mosque site by the Hindutva movement is likely to gain a shrill momentum once the ASI declares (a la ASI excavation below the Babri Mosque) the presence of ‘temple-like structures’ beneath the mosque.

Significantly, the famed 2019 Ayodhya judgment by the Supreme Court acknowledged the presence of “temple-like structures at the disputed site” but refrained from definitively establishing whether they were “demolished to build the Babri Masjid.” Moreover, this judgement widely critiqued otherwise, also held that the provisions of the PoW 1991 formed part and parcel of the Basic Structure Doctrine that was formally underlined in thee Keshavananda Bharati Case in 1978.

Arguments

During the court proceedings, senior advocate Madhavi Divan, representing the plaintiffs, emphasised that the ASI survey would provide expert evidence beneficial to all parties. The plaintiffs sought to “worship visible and invisible deities” within the Gyan Vaapi Masjid, claiming to have observed certain signs and symbols. Divan argued that a scientific study could logically reach a conclusion regarding the religious character of the site.

The court clarified that the survey was conducted under Order 26 of the Code of Civil Procedure and is not adversarial or prejudicial since it does not determine the rights of the parties and is subject to objections. Divan further contended that the Places of Worship Act does not prohibit determining the religious character of a place before August 15, 1947.

Solicitor General of India, Tushar Mehta, assured that no excavation would be carried out during the survey, and the ASI would maintain the stand taken before the High Court. However, Huzefa Ahmadi, representing the mosque committee, raised concerns that the survey would re-open past wounds, contradicting the very spirit of the Places of Worship Act.

Justice Pardiwala suggested that the survey be conducted, given the assurance by Mehta that no invasive methods would be used, and the report be presented in a sealed cover. Ahmadi requested the report to be sealed, but the court did not explicitly address this issue in the formal order.

Ahmadi cited previous cases and the Places of Worship Act, arguing that the survey violates the Act’s provisions. The Chief Justice of India (CJI) DY Chandrachud mentioned that these issues would be considered during the arguments in the main matter, and also that the court would safeguard the structure.

Ahmadi raised concerns about potential frivolous suits requesting further such surveys. The Chief Justice clarified that the power of a civil court to pass interim orders is not barred, and the court will protect the structure while addressing maintainability concerns.

The Court allowed the ASI survey to proceed, considering it an interlocutory order appointing a commissioner. The court acknowledged the importance of addressing maintainability issues during the hearing of the main title suit and further assured respondents that Masjid would be protected during the process.

Background to the Gyanvapi Masjid case

The Gyanvapi masjid issue was first brought to the courts’ attention in 1991. A petition was filed with the Varanasi Civil Court by a group of priests, demanding the right for Hindu prayers to be allowed within the mosque’s premises. This demand was based on the claim that the Gyanvapi mosque had been constructed upon a Kashi Vishwanath Temple – and that, based on the original usage of the land, the premises ought to be returned to the Hindus. The proceedings were stayed by the Allahabad High Court in 1998, and the matter pretty much laid dormant for the next two decades – until the Ayodhya Dispute was resolved.

The landmark 2019 Ayodhya title dispute judgement marked the renewal of the Gyanvapi mosque case. In the same year, a fresh case was filed at a Varanasi Civil Court, seeking an archaeological survey to assess the mosque’s origins. In 2020, the original petitioners of the 1991 case approached the court to hear the original petition again. However, these proceedings were once again eventually stayed by the Allahabad High Court in September 2021.

In August 2021, a fresh petition was filed by 5 Hindu women at a Varanasi Civil Court seeking permission to worship Hindu deities within the masjid’s premises (2). Affiliated with the Vishwa Vedic Sanatan Sangh, the women advanced the same claim as prior petitions did regarding the original usage of the land, stating that the Mughal Emperor Aurangzeb had destroyed the temple and built a mosque on its ruins. The maintainability of this suit, i.e. the Shringar Gauri case, was challenged by the Anjuman Intezamia Mosque (AIM) Committee in April 2022 under Order 7, Rule 11 of the Civil Procedure Code (CPC). However, once the Supreme Court redirected the matter to the Varanasi district court, the committee’s plea was dismissed in September 2022. District judge A.K. Vishvesha stated that the “plaintiffs will have right to prove their averments by cogent evidence (2)”, and ruled that Acts like the Waqf Act, 1995 and the Places of Worship Act, 1991 could not prevent the suit from being heard.

Encouraged by this decision, the petitioners filed a plea requesting the carbon dating of a structure (which they claimed to be a ‘shivling’) that had been found in the ablution tank of the mosque in May 2022 (3).  The claim that the structure was a sibling was advanced as proof that a Hindu temple once existed upon the masjid’s premises. However, the structure had already been dismissed as a part of a defunct fountain by the AIM Committee and a couple of Mahants associated with the Kashi Vishwanath Temple. In a positive development for the case, the Varanasi Court eventually rejected this plea on 14 October 2022, citing possible damage to the structure as a deterrent.

Over the course of the Shringar Gauri case, several pleas to be made party to the case were dismissed by the Varanasi Court. But just as quickly as these positive steps were taken, the Varanasi FTC undid them by dismissing a plea challenging the maintainability of a suit filed by the general secretary of the Vishwa Vedic Sanatan Sangh. This suit was a separate suit filed parallel to the original suit filed by the 5 Hindu women, and sought to ban the entry of Muslims into the mosque’s premises and obtain permission to pray to the shivling (4). The AIM Committee challenged the maintainability of the suit, but it was dismissed by the FTC on 17 November 2023.

To top it all off, the Archaeological Survey of India (ASI), i.e., the very institution making headlines as of late in this contentious case, informed the Allahabad High Court that while carbon-dating of the structure (claimed to be a shivling) could not be conducted, other modern techniques can be used to determine the age of the structure – thereby providing opportunity for the petitioners to raise unwarranted doubt as to its origins (5). This declaration was a result of the October 14^th plea rejection by the Varanasi Court. A plea revision was then filed before the Allahabad High Court, seeking directions to ASI to conduct a scientific probe through excavation and radar devices (5) – bringing us to the present.

Places of Worship Act, 1991

The legislation was introduced by the then Narasimha Rao government (the union minister for SB Chavan at the time and the Bill was introduce by then union finance minister, Manmohan Singh) and passionate interventions in Parliament at the time emphasised the need for such a law that protected the identity and ownership of religious places of worship as they were/are on August 15, 1947.

The Places of Worship Act, 1991 was passed against the growing trepidation regarding the Ayodhya dispute. On September 12, 1991, the Act was passed by the Rajya Sabha, preventing the conversion of any place of worship from the form it took on August 15, 1947. Conveniently enough, the Act states Ram Janmabhoomi-Babri Majid in Ayodhya as an exception to the rule that no case can stand in any court regarding the conversion of a place of worship as it existed on August 15, 1947.

The Act, while primarily questionable due to its contentious exception, was still passed with the intention of acting as a stabilising force amidst rising communal tensions. However, it has  seen a mixed implementation.In the Gyanvapi case, the AIM Committee’s plea challenging the maintainability of the Shringar Gauri case’s petition was dismissed by interpreting the Places of Worship Act, 1991 in a specific way so as to create a legal loophole. Varanasi District Court Judge A K Vishveshva pointed out that technically, the petitioners were not seeking a conversion of the Gyanvapi mosque into a Hindu temple dedicated to Lord Shiva, and were merely seeking the right to worship their religious deities upon the disputed land as a civil right guaranteed to them by law. Hence, the Places of Worship Act, 1991 could not serve as an obstacle in the way of the petition.

The Places of Worship Act, 1991 is itself being challenged on the grounds of Constitutional validity. Since the Act bars judicial review, a basic feature of the Indian Constitution, petitions have been filed before the Supreme Court of India this year declaring it to be absolutely arbitrary. They however remain to be fully heard, with proceedings having been adjourned to October 2023 to provide the Central Government with enough time to defend its position.

This law provided some reassurance to religious minorities and citizens who did not support Hindutva politics that the state would not permit the Sangh Parivar’s agenda of “demolishing mosques to restore temples to persist indefinitely,” justifying a falsified and perverted understanding of history and the past.

Hence, the recent decision of the SC allowing the ASI survey, questions of opening a Pandora’s box of controversies has arisen. The SC order endorsed the orders of the two other courts that had previously examined the matter: the Varanasi District Court and the Allahabad High Court.

This legal process has been ridden by contradictions and controversies, beginning with the initial direction in April 2021 from a lower local Varanasi city court to the Archaeological Survey of India (ASI) to conduct a comprehensive survey. The matter was subsequently carried to the Allahabad High Court and then eventually reached the apex court through the appeals of the Mosque committee and others.

After hearing arguments from both sides, the survey was initially halted. During this time, the city court “ordered the videography of the inner precincts of the Gyanvapi Mosque.” When this decision was challenged in the Supreme Court, it permitted the videography but simultaneously transferred the case from the city court to the District Court, citing the social complexities involved.

The sequence of events in this legal process has been marked by a lack of consistency and clear direction, leading to further uncertainties surrounding the issue.

The unfolding of events in this case presents a Kafkaesque narrative or a perplexing whodunit script, lacking clear logic or consistency.

The district court’s order for the ASI survey seemed to overlook previous barriers, even though permission for the same survey had been declined on technical grounds the previous year, only to be allowed on July 21, 2023 by the same judge. The trajectory of this case is hence complex and often, contradictory.

In May of this year, Chief Justice of India DY Chandrachud acknowledged the delicate nature of such matters and the need for cautious handling while hearing a plea against the ASI survey order.

Recently, when the Mosque Committee approached the apex court seeking time to appeal the District Judge’s survey order, the Supreme Court granted a stay and directed the High Court to promptly admit and hear the committee’s petition. The court expressed concern that the Muslim side had not been given adequate time, and it noted that the ASI had started the survey in the early hours of the morning. Interestingly, a similar sequence was followed after the High Court’s approval of the survey in August 2023, but this time, the Supreme Court did not halt the process; instead, it only directed that the survey should be “non-invasive.”

As a consequence, the Supreme Court’s order permitting the ASI survey arguably opens the door for the Sangh Parivar to intensify their campaign for the ‘restoration of temples,’ which they claim were “demolished” by ‘foreign invaders’ centuries ago.

The saffron camp’s crusade is likely to expand beyond the Gyanvapi Mosque and Shahi Idgah in Varanasi and Mathura, respectively. Depending on the outcomes of various political events, especially national and state elections in the next couple of years, there is a possibility of adding new shrines to the ‘to-be-restored’ list. However, a more disheartening prospect looms as there is a clear chance of dramatic or even destructive developments concerning the Varanasi shrine prior to the parliamentary polls scheduled for March-May next year (2024).

These potential developments, following the ASI report’s submission and ominous ‘leaks’ like the videos of the inner precincts of the Gyanvapi Mosque, could lead to a disconsolate occurrence of the impending Lok Sabha elections being contested around the theme of ‘resurgent’ Hindus ‘reclaiming’ their past glory after centuries of ‘subjugation’ by ‘foreign’ rulers.

Following the contentious Ayodhya verdict, in which the Supreme Court awarded the property to Hindu parties for constructing a Ram temple while acknowledging the demolition of the mosque as an “egregious violation of the rule of law,” many law-abiding secular citizens of India had praised the judges for upholding the Places of Worship (PoW) Act as a beacon of hope.

The 1991 law was considered instrumental in resolving disputes, including those of Ayodhya, while excluding the Ayodhya conflict from its purview. The five-judge Ayodhya title suit bench, which included the current CJI Chandrachud, viewed the PoW Act as emblematic of the Indian Constitution’s basic structure. They emphasized that it was “intrinsically related to the obligations of a secular state” and a law that “reflected India’s commitment to the equality of all religions.”

Judicial view on Places of Worship act (POW)

According to the judges, the PoW Act served two purposes: firstly, it prohibited the conversion of any place of worship, thereby preserving the future character of public worship sites. Secondly, the law imposed a positive obligation to maintain the religious character of every place of worship as it existed on August 15, 1947.

However, this faith in the PoW (places of worship act) Act was significantly eroded in May 2022 when the Supreme Court declared that ascertainment of religious character is not barred under Section 3 of the Act. This ruling came during the hearing on the  Gyan Vapi Mosque Committee’s appeal against the videography of the premises, casting doubt on the Act’s protective intent.

Questions have arisen around whether the process of ascertainment, as with the current survey, which goes beyond mere videography, could potentially (without necessary archaeological or historic evidence) reveal the existence of a temple-like structure beneath the Gyanvapi Mosque. If so, it raises concerns whether any court or state institution could prevent its demolition without risking widespread violence and police intervention.

The implications of the Supreme Court’s deadline of October 31, 2023 for the government to present its viewpoint on the 1991 law are significant. The possibility of the ASI findings being leaked to the media looms, potentially influencing political and legal proceedings.

Legal Provisions of Places of Worship Act 1991

Section 3: This bars the conversion, in full or part, of a place of worship of any religious denomination into a place of worship of a different religious denomination or even a different segment of the same religious denomination.

Section 4(1): It declares that the religious character of a place of worship “shall continue to be the same as it existed” on 15^th August 1947.

Section 4(2): It says any suit or legal proceeding with respect to the conversion of the religious character of any place of worship existing on 15^th August, 1947, pending before any court, shall abate and no fresh suit or legal proceedings shall be instituted.

The proviso to this subsection saves suits, appeals, and legal proceedings that are pending on the date of commencement of the Act if they pertain to the conversion of the religious character of a place of worship after the cut-off date.

Section 5: It stipulates that the Act shall not apply to the Ramjanmabhoomi-Babri Masjid case, and to any suit, appeal, or proceeding relating to it.

Section 6 of the Act prescribes a punishment of a maximum of three years imprisonment along with a fine for contravening the provisions of the Act.

Exemption from places of worship act 1991

Any place of worship which is an “ancient and historical monument”, or an archaeological site covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958. A suit that has been finally settled or disposed of.

Any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.

In 2007, the Himachal Pradesh High Court, in Satinder Kumar And Ors. Vs Union Of India (Uoi) on 26 April, 2007  related to a Church in Shimla, said any structure that is more than 100 years old and satisfies the definition of ancient monument under the law, automatically becomes an ancient monument and there is no special declaration necessary. And once the place of worship is established as an “ancient monument”, it falls outside the ambit of the Places of Worship Act.

Similar cases across the country

Qutub Minar, Delhi

On December 9, 2020, a lawsuit was filed before a civil court in Delhi, alleging that the Qutub Complex, housing the 13^th-century Qutub Minar, originally comprised Hindu and Jain temples before being destroyed by Qutb-ud-din Aibak, who then erected the present structures.

The petitioners argued that Delhi was under Hindu rule until 1192 AD when Mohammed Ghori defeated Prithviraj Chauhan in the Battle of Tarain. However, the suit was dismissed by a Delhi court, stating that acknowledging historical wrongs should not disturb peace in the present.

Following the dismissal, the case was challenged, and on February 22, 2022, additional district judge Pooja Talwar agreed to hear a plea contesting the earlier decision. The case is ongoing.

On May 10, 2022, members of a Hindu group called the Mahakal Manav Seva demanded that the Qutub Minar be renamed Vishnu Stambh, claiming it was originally part of a tower constructed atop an ancient Ganesha temple.

Taj Mahal , Uttar Pradesh

On May 7, 2022, Rajneesh Singh, who claimed to be in charge of the BJP’s media outreach, filed a petition with the Lucknow bench of the Allahabad High Court, seeking the opening of more than 20 rooms within the 17^th-century Taj Mahal. Singh’s public-interest litigation (PIL) argued that numerous Hindu groups had asserted that the Taj Mahal was an ancient Shiva Temple known as the Tejo Mahalaya.

However, on May 12, the Allahabad High Court dismissed the petition. Justice D K Upadhyay expressed concern, stating, “Tomorrow you’ll come and ask us to go to the chambers of Hon’ble judges? Please, don’t make a mockery of the PIL system.” The court upheld the sanctity of the Taj Mahal, rejecting the claim that it was a Shiva Temple.

Shahi Masjid , Mathura

The 17^th-century Mathura Shahi Masjid and Krishna Janmabhoomi in Mathura, Uttar Pradesh, have become contentious places of worship, with two cases currently pending before the Allahabad High Court and a local Mathura district court.

On November 12, 2020, a Public Interest Litigation (PIL) was filed before the Allahabad High Court, requesting that the Shahi Masjid, situated next to a Sri Krishna temple, be handed over to Hindus. Initially dismissed on January 19 of the following year due to the petitioner appearing in court without legal representation, the plea was later reinstated by the High Court on March 14, 2022. The PIL claims that the Shahi Masjid was constructed on the Krishna Janmasthan, believed to be the birthplace of Lord Krishna. The matter has been scheduled for July 2022.

Concurrently, a separate case is ongoing before the Mathura district court seeking the removal of the Shahi Idgah Masjid on the grounds that it was erected over the Krishna Janmabhoomi. The plaintiff, Sri Krishna Janmabhumi Mukti Aandolan Samiti, alleges that the mosque in question (Shahi Idgah) was built on 13.37 acres of land belonging to Thakur Keshav Dev Maharaj Katra.

Bhoj Shala complex , Dhār Madhya Pradesh

On May 11, 2022, the Madhya Pradesh High Court issued a notice to both the central and state governments in response to a petition that seeks to reclaim the 11^th-century Bhojshala complex, situated in the district of Dhar, for Hindus and prohibit Muslims from offering namaz there.

Located in Dhar, approximately 250 km east of the state capital Bhopal, the Bhojshala-Kamal Maula mosque has been a shrine claimed by both Hindus and Muslims.

In 2003, an Archaeological Survey of India (ASI) notification allowed Muslims to offer namaz within the Bhojshala complex. However, the recent petition has raised concerns over the place of worship’s status, leading to legal proceedings and discussions on its rightful ownership and usage.

Consequences

The consequences of the High Court and Supreme Court rulings extend beyond the Gyanvapi Mosque. The existence of the Shahi Idgah in Mathura is also jeopardized, as similar cases which are moving towards resolution. Fears and concerns of the ultra right wing’s,  relentless ‘demolish-mosques-to-restore-temples’ campaign becoming perpetual seem to be coming true, with winning elections becoming the primary objective of the current regime, as demonstrated by recent events in Manipur and Haryana.

Order may be read here:

(The author is an intern with the organisation, cjp.org.in)

[i]  https://www.drishtiias.com/daily-updates/daily-news-analysis/the-places-of-worship-act-1

https://www.barandbench.com/news/litigation/supreme-court-permits-asi-survey-gyanvapi-mosque-premises

https://thefederal.com/opinion/gyanvapi-mosque-why-sc-ordered-asi-survey-will-open-the-floodgates/

https://scroll.in/article/992086/analysis-could-asi-survey-of-gyanvapi-mosque-lead-to-it-being-exempted-from-places-of-worship-act

https://article-14.com/post/gyanvapi-mosque-similar-litigation-illegal-under-a-31-year-old-law-yet-courts-keep-hearing-cases-628574e5b0b3f

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In its verdict addressing the Manipur violence Dinganglung Gangmei vs Mutum Churamani Meetei & Ors | 2023 LiveLaw (SC) 626 , the Supreme Court expressed its profound dissatisfaction with the sluggish pace of investigation carried out by the Manipur police regarding cases related to ethnic clashes.

The Court underscored that an unexplained delay existed between the occurrence of these crimes in early May 2023 and subsequent steps, such as registering FIRs, recording witness statements, and making arrests—actions which have been infrequent and significantly spaced out.

While the court announced its decision to appoint Padsalgikar as the “overall (probe) monitor” on August 7, besides naming a three-member committee of former High Court judges to look into the humanitarian aspects, the detailed order was made public on Thursday.

This order says that there are serious allegations, including witness statements, indicating that the law-enforcing machinery has been inept in controlling the violence and, in certain situations, colluded with the perpetrators, observed the court. Though serious issues have been raised about the absence of a proper investigation, the SC said that the Court will not enter a finding of fact on these allegations.

However, at the very least, such allegations require an objective fact-finding to be conducted. Those who are responsible for a breach of public duty must equally be brought to account, regardless of their rank, position or post.  All and every officer of the state or other employee of the state who is guilty not only of the dereliction of their constitutional and official duties but of colluding with perpetrators to become offenders themselves, shall and must be held accountable without fail. This is the promise of justice that the Constitution demands from this Court and from all branches of the state,” said the Bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra.

Further, SC asked Padsalgikar and the former judges’ committee to submit a progress report in two months. It said it would then “issue further directions at that stage… for the shifting of the trials outside the State of Manipur, as may be required.

De-constructing the Manipur verdict 

Significantly, the Court’s observations were as follows:

(Page 16 para 15 of the judgement) 

“The investigation process in the State of Manipur has exhibited a languid pace, as evidenced by:

• Significant time lapses between the occurrence of grave incidents encompassing murder, rape, and arson, and the recording of zero FIRs.

• Notable delays in forwarding zero FIRs to police stations having jurisdiction over these incidents.

• Delays in converting zero FIRs into regular FIRs by concerned police stations.

• Procrastination in recording witness statements.

• Absence of diligence in recording statements under Section 161 and Section 164 of the CrPC.

• Sluggishness in making arrests for heinous offenses.

• Inadequate promptness in facilitating medical examinations for victims.

Moreover, the Court emphasized, “These deficiencies within the investigative process reflect poorly on the State of Manipur,” reaffirming the paramount importance of a swift and equitable justice system, particularly in cases involving physical or sexual offenses.

The Court proceeded to issue the following directions to ensure the integrity of the investigation:

(Page 18-19 of the judgement)

1. Oversight of the investigation process shall be conducted by the Court. To this end, Shri Dattatray Padsalgikar, former Director General of Police, Maharashtra, has been appointed to supervise the investigation conducted by both the CBI and SITs.

2. To ensure the thorough investigation of transferred FIRs, the Union Ministry of Home Affairs shall assign five officers from Rajasthan, Madhya Pradesh, Jharkhand, Odisha, and NCT of Delhi, each holding the rank of Deputy Superintendent of Police, to aid the CBI. One of these officers must be a woman.

3. Allegations of police involvement are to be investigated by Dattatray Padsalgikar as well. The Court acknowledged that serious allegations, including witness statements, suggested that law enforcement may have inadequately managed violence and, in certain instances, cooperated with perpetrators. Objective fact-finding is essential, and accountability is paramount for all those failing in their constitutional and official duties.

4. The State of Manipur proposed the formation of 42 SIT teams, and for effective oversight, the Union Ministry of Home Affairs shall depute one Police Inspector from Rajasthan, Madhya Pradesh, Odisha, Jharkhand, Maharashtra, and NCT of Delhi, along with at least fourteen officers of the rank of Superintendent of Police, to oversee the respective SITs.

5. SITs overseeing cases involving sexual offenses and other crimes shall be led by women officers. These SITs will visit relief camps to collect complaints of violence impartially.

6. To prevent re-traumatization of women, SITs investigating sexual offenses shall adhere to legal safeguards, including the provisions of Section 161(3) of the CrPC.

7. SIT composition should be balanced and not predominantly consist of members from any single community involved in the Manipur clashes.

8. While overseeing investigations, Dattatray Padsalgikar will ensure that FIRs are registered under appropriate legal provisions based on the specifics of each case.

9. The designated officer will also issue appropriate directives during the monitoring process, encompassing providing legal assistance, ensuring time-bound investigations, proper recording of statements, offering legal aid to victims, and maintaining confidentiality and anonymity of victims/survivors during status reports submitted to the Court.

The Supreme Court has expressed profound dismay over the appalling acts of severe sexual violence inflicted upon women amidst sectarian conflicts in Manipur. The Court underscored subjecting women to such heinous crimes is utterly unacceptable and constitutes a serious breach of fundamental constitutional principles, including dignity, personal liberty, and autonomy protected under Part III of the Constitution. Regrettably, mobs often target women for violence, exploiting the possibility of evading punishment when part of a larger group. (Can be read on page number 20 Para 17 of the judgement).

In response, the Court has directed the establishment of a committee comprised of three esteemed former High Court Judges (page 22 para 20 of the judgement) to focus on the rehabilitation and support of survivors. The distinguished members of this committee include:

– Gita Mittal, former Chief Justice of the Jammu and Kashmir High Court

– Justice Asha Menon, former Judge of the Delhi High Court

– Justice Shalini Phansalkar Joshi, former Judge of the Bombay High Court

The committee’s key tasks include:

1. Investigating the nature of violence against women in Manipur since May 4, 2023, utilizing various sources such as survivor interviews, family members, local representatives, relief camp authorities, filed FIRs, and media reports.

2. Compiling a comprehensive report detailing essential steps to address survivors’ needs, encompassing strategies to address the aftermath of rape, and providing social, economic, and psychological support, all within a specified timeframe.

3. Ensuring the provision of dignified conditions in relief camps for displaced individuals, recommending additional camps if needed. (Page 23 of the judgement)

4. Securing compensation and restitution for victims of violence.
5. Appointing nodal officers at relief camps and establishing a toll-free helpline to disseminate updates regarding investigations, missing persons, and the recovery of deceased individuals. These officers are also entrusted with maintaining a database of all relief camp residents. (Page 24 of the judgement).

These directives were issued in response to the distressing video from May 4, depicting the reprehensible ordeal of two women in Manipur subjected to public humiliation and sexual violence amid the conflicts. Taking Suo Motu cognizance of the matter on July 20, the Supreme Court demanded accountability from both the Central and State Governments in apprehending the perpetrators and bringing them to justice. The Court vehemently denounced the use of women as instruments to inflict gender-based violence in the context of communal strife, deeming it a flagrant violation of human rights and utterly unacceptable.

Objectionable comments from the Solicitor General of India amidst the Court’s Proceedings

Solicitor General Tushar Mehta’s recent comment stirred controversy when he claimed that many unclaimed bodies  belong to infiltrators with ulterior motives. However, data from conflict-affected regions paints a different picture.

For instance, in Imphal East, out of 30 bodies, 21 were identified (7 Kuki, 14 Meitei), with 9 remaining unidentified. Compensation was granted to 7 families and 3 women.

In Imphal West, 28 bodies were found, 21 identified (17 Kuki, 4 Meitei), and 7 remained unknown. The government seeks one family.

Thoubal reported 4 identified bodies, all from the Kuki community.

Kakching saw 20 bodies, 15 identified (including 11 Meitei), and 4 unidentified.

Bishnupur recorded 20 bodies, 19 identified (6 Kuki, 13 Meitei), and 2 unidentified.

Churachandpur listed 39 bodies, all identified (35 Kuki, 4 Meitei), while Kangpokpi had 11 identified bodies (5 Kuki, 6 Meitei).

Though the Manipur government’s August 5 update reported 142 deaths, district data raised the count to 152, with 130 identified and 22 unidentified. The Kuki Students’ Organization (KSO) noted 136 Kuki deaths, including 23 women.

SG Mehta’s assertion contradicts KSO’s efforts to verify bodies using Adhaar cards and documents. KSO’s D.J. Haokip questioned how foreigners could hold Indian government jobs and demanded security for body verification.

Compensation remains limited, despite Home Minister Amit Shah’s pledge of Rs 10 lakh per family—Rs 5 lakh from the Centre and Rs 5 lakh from the state. Union government’s share is pending. Please note that this data might vary from current figures, but it aligns with KSO’s list shared with The Wire. Read more – https://thewire.in/rights/sg-tushar-mehtas-claim-that-unclaimed-bodies-in-manipur-belong-to-infiltrators-is-unfounded

Pointers

Significantly, in its order, the SC asked Padsalgikar and the former judges’ committee to submit a progress report in two months. It said it would then “issue further directions at that stage… for the shifting of the trials outside the State of Manipur, as may be required.

Expressing anguish over the “manner in which women have been subjected to grave acts of sexual violence in the course of the sectarian strife”, the court said: “Subjecting women to sexual crimes and violence is completely unacceptable and constitutes a grave violation of the constitutional values of dignity, personal liberty and autonomy, all of which are protected as core fundamental rights under Part III of the Constitution”.

“Mobs commonly resort to violence against women for multiple reasons, including the fact that they may escape punishment for their crimes if they are a member of a larger group. In time of sectarian violence, mobs use sexual violence to send a message of subordination to the community that the victims or survivors hail from. Such visceral violence against women during conflict is nothing but an atrocity. It is the bounden duty of the state — its foremost duty, even — to prevent people from committing such reprehensible violence and to protect those whom the violence targets,” the court said stating that “its intervention will be a step towards the guarantee of non-repetition that victims of such crimes are entitled to”, the Bench said the “victims of violence must receive remedial measures irrespective of their community” and “likewise, the perpetrators of violence must be held accountable, irrespective of the source of violence”.

There is a need to ensure that the violence (in Manipur) ceases, the perpetrators of violence are punished according to the procedure established by law, and that consequently, the faith and confidence of the community in the justice system is restored,” it said.

With reference to the cases transferred to CBI, the court asked the Union Home Ministry “to place at the disposal of the CBI five officers drawn from the states of Rajasthan, Madhya Pradesh, Jharkhand, Odisha and NCT of Delhi, at least of the rank of Deputy Superintendent of Police. At least one of these five officers shall be a woman”. It said these officers would “submit periodical information and reports as may be required” by Padsalgikar”.

The court also asked the Home Ministry to depute 14 officers not below the rank of Superintendent of Police, to be in charge of the Manipur Police SITs which are investigating other FIRs.

These SITs, the court said, “will visit each relief camp within the area assigned to it and make it known that it is an impartial body which is accepting complaints of violence (including sexual violence)”. It added that the “SITs constituted by the state… shall not consist exclusively of members belonging to either one of the communities involved in the clashes”.

The panel of former judges will “enquire into the nature of violence against women… from 4 May 2023, from all available sources including personal meetings with survivors, members of the families of survivors, local/ community representatives, authorities in charge of relief camps and the FIRs lodged as well as media reports,” the court said. 

Conclusion 

In this verdict, the Supreme Court has, three months and three days after violence broke out, offered some hope to survivors of the violence.

By attempting a meticulously redressal of the intricate web of violence that has cast a shadow over the state, the court paves the way for a brighter tomorrow.

The Aug 7 judgement may be read here:

(The author is an intern with cjp.org.in.)

1 https://www.thehindu.com/news/national/cannot-excuse-sexual-violence-against-women-in-

manipur-on-ground-that-crimes-are-committed-against-them-in-other-parts-of-country-sc/article67141502.ece

https://indiankanoon.org/doc/148884511/

https://www.livelaw.in/top-stories/investigate-if-manipur-police-officers-colluded-with-violence-supreme-court-to-supervising-officer-read-directions-234932

https://lawbeat.in/top-stories/manipur-violence-supreme-court-forms-committee-former-women-high-court-judges-look

The post Probe charges of collusion against Manipur Police, SC tells special monitor team appeared first on SabrangIndia.

“Despite the mandate of the High Court, it appears that neither the acquiring authority, nor the State Government is being sensitised. If insensitivity is to be blinked at by this court, we are afraid that the rule of law will not prevail and there would not only be a travesty of justice, but would result in miscarriage of justice,” the court observed.

This significant legal development came from the High Court that was hearing a cluster of petitions lodged by farmers whose lands had been acquired by the State Government. 

Aggrieved farmers had contended that despite a 2019 order issued by the esteemed Lok Adalat, the government had failed to provide them with the rightful compensation. According to the Government Resolution (GR), the compensation was to be disbursed within 180 days of the settlement award, which had not been honoured this ruling, the High Court expressed profound dismay at the acquiring authorities and revenue officials for callously disregarding the sanctity of the Lok Adalat awards and the severe financial adversities faced by the petitioner farmers. The court also made poignant remarks, emphasising that these cases were glaring illustrations of the authorities showing scant regard for the Lok Adalat awards, issued as far back as December 17, 2019.The division bench documented how, when a farmer’s fundamental right to cultivate his land, an integral part of the right to livelihood, is taken away, it becomes incumbent upon the authorities to duly compensate the affected individual.

Right to property is not only a Constitutional or a statutory right, but also a human right and human rights are considered to be in the realm of individual rights which are gaining an even greater multifaceted dimension and, therefore, in case the person aggrieved is deprived of the land without making the payment of compensation as determined by the Collector/Court, it would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-social activities as such sentiments would be born in them on account of such ill treatment,” 

Moreover, the learned bench astutely observed that the entitlement to compensation for the farmers is a sacrosanct legal right, and for those possessing vested legal rights, the pursuit of justice becomes an inherent facet. Farmers with justifiable claims ought not to implore for justice but rather assert their right to demand it unequivocally. In the event of failure to disburse such payments within the stipulated timeframe, there shall legally arise an interest component, which the responsible officers must bear as a penalty for the delay.

Furthermore, the division bench issued a clear directive to both the government and acquiring authorities, compelling them to ensure timely disbursal of awarded amounts to farmers who have entered into Lok Adalat settlements from the year 2017 onwards, and who have no prior pending cases. The prescribed timeframe for such settlement mandates completion within 90 days from the date of this pivotal judgment.

Based on the findings from the NSSO 59th round ‘Situation Assessment Survey of Farmers’, the economic situation of Indian farmers remains a matter of grave concern. The survey reveals that an average Indian farmer’s monthly earnings stand at Rs 6,426, while their expenditure amounts to Rs 6,223. This indicates a meagre surplus, leaving little room for financial stability or savings.

Disturbingly, a striking level of income inequality plagues the agricultural sector. Merely 15 percent of farmers manage to secure a whopping 91 percent of the total agricultural income. 

This stark contrast between the few privileged and the majority facing financial hardships highlights the overwhelming disparity present within the farming community. An even more distressing aspect is the precarious profitability of farming activities. Specifically, farmers earn a mere Rs 7,639 from a hectare of wheat cultivation, whereas the production cost to achieve this yield amounts to a staggering Rs 32,644. Such a substantial gap between income and expenses poses a severe threat to the livelihoods of countless farmers who struggle to make ends meet. In essence, these findings shed light on the grim economic realities faced by Indian farmers, characterised by slim margins, inequality in income distribution, and the struggle to generate profitable returns from their hard work and investments in agricultural activities. Urgent attention and support are required to uplift the agricultural community and ensure a sustainable and equitable future for these essential contributors to the nation’s prosperity. 

Since 2017, over 800 farmers impacted by the upcoming Jewar airport in Gautam Buddha Nagar have been protesting against land loss, livelihood issues, and insufficient compensation. Their main grievance stems from a government notification that reclassifies the proposed site from rural to urban, halving the compensation amount legally entitled to them under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Act, 2013. The Act stipulates two times the market rate for urban land and four times the market rate for rural land. 

On March 16, 2018, Farmers Protested against Low Compensation for NTPC Plant in MP and Demanded Jobs. 

Led by the All-India Kisan Sabha (AIKS), farmers in Greater Noida staged a protest at the Greater Noida Development Authority headquarters, protesting the government’s failure to fulfil a promise made 13 years ago. The promise was to compensate them for the lands that were taken away by the government. Thousands of farmers participated in the sprawling rally around the headquarters. On April 25, 2018 Over 5,000 farmers in Gujarat, India, had expressed their willingness to die rather than part with their land, as disputes over land acquisition intensify in the country. In Bhavnagar district, they demanded the return of 2,000 hectares of land acquired by a power utility over two decades ago, which remains unused. They have communicated this plea to state officials and Prime Minister Narendra Modi.

On May 18, 2023, hundreds of activists and farmers belonging to the farmers’ organisation, Kisan Mazdoor Sangharsh Committee (KMC), took a standby squatting on a railway track and obstructing rail traffic at Devidaspura village. Their protest was driven by the claim of receiving inadequate compensation for the land acquired for the Bharat Mala project.

Some of the legal developments through case laws illuminated these endeavours and deepen jurisprudence:  

In the case of Hindustan Petroleum Corporation Ltd. V. Darius Shapur Chennai (2005) 7 SCC 627, the court held that the State could acquire private property under its power of eminent domain, but it must be for a public purpose, and the affected person must receive reasonable compensation as mandated under Article 300-A of the Constitution.

In Jilubhai Nanbhai Khachar v. State of Gujarat MANU/SC/0033/1995, the court clarified that Article 300-A limits the State’s power to deprive a person of their property, ensuring no deprivation without proper legal authority.

In the ruling, Delhi Airtech Services Pvt. Ltd. V. State of U.P (2011) 9 SCC 354, the constitutional courts recognised the right to property as a fundamental human right, emphasizing that the State cannot claim adverse possession over citizens’ properties in its role as a welfare state.

In B.K. Ravichandra & Ors. V. Union of India & Ors SCC OnLine SC 950, the court reaffirmed that compensation must be paid, and the State or authorities cannot ignore this obligation. 

In the case of National Highways Authority of India vs. Modan Singh FAO-756-2022 (O&M), the Land Acquisition Act 2013 was made applicable. (Here, compensation deposited before December 31, 2014, was not paid to the majority of farmers: Punjab & Haryana HC. 

In the case of GNIDA vs. Devendra SLP (C) No. 16366 of 2011, the government’s land acquisition order was invalidated due to its arbitrary exercise of power.

Constitutional Principles 

A welfare state must not, under the pretext of industrial development, forcibly displace and violate the fundamental, constitutional, and human rights of its citizens. A welfare state, governed by the rule of law, cannot assume a status beyond what is granted by the Constitution. Moreover, the authorities responsible for such actions are not only obligated to provide adequate compensation but also have a legal duty to rehabilitate the affected individuals.

Failure to fulfil these obligations would amount to compelling the uprooted individuals to become wanderers or engage in activities against their own nation, as such feelings may arise due to their mistreatment without any lawful procedure. The court must recognize that a welfare state or its agencies enriching themselves at the expense of impoverished farmers is impermissible, especially when endorsed by the state itself.

To further read the judgement 

(The author is an intern with the Citizens for Justice and Peace, ww.cjp.org.in)

References

https://www.deshabhimani.com/english/news/national/no-compensation-for-lands-taken-away-farmers-break-into-protest-in-greater-noida/8275

https://m.timesofindia.com/india/fair-compensation-for-land-acquired-by-govt-is-farmers-human-right-sc/articleshow/50050793.cms

https://www.tribuneindia.com/news/punjab/punjab-and-haryana-high-court-grants-relief-to-farmers-whose-land-was-acquired-for-highway-496491

Related:

Protesting farmers block the highway to Delhi in Haryana’s Kurukshetra

25,000 farmers march to Palghar district collectorate, ensure demands are met: AILS

Varanasi: Land Survey Bid Triggers Clashes, Several Injured, 11 Farmers Arrested

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