On April 18, the Bombay High Court rejected a Civil Revision Application filed by the forest department and observed that the prima facie officials of the forest department wanted to evict a tribal living on the borders of the famous Tadoba Tiger Reserve in Maharashtra without following due process.

“There is no dispute that Forest Officers are empowered under Section 26(1-A)(a) of the Forest Act to evict the person from reserved forest, however, their powers are subject to the rights conferred under the Dwellers Act in respect of Tribals or Traditional Forest Dwellers. If there is any claim pending in that regard, till decision of the same as per direction of State itself, no eviction can be effected.” (Para 7)

Justice MS Jawalkar noted that without giving the tribal a hearing, his claim to four hectares of land was rejected and the order wasn’t even communicated to him.

“…it is expected that Tribals have to be given an opportunity to adduce the evidence and reasoned orders to be passed…In the present matter, prima facie, it appears that, without following due process, the defendants want to evict the plaintiff from the land which is in his possession since long,” the bench observed. (Para 12)

This suit was originally filed by Bhante Gyanjoti Thero, who had sought a declaration and permanent injunction. He claimed that he and the public trust of which he is the president occupied 4 hectares of forest land since 1976. He filed a claim seeking rights to live there after the Ministry of Law and Justice enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, in 2006 (Dwellers Act).

Even as his claim was pending, he filed another claim before the Forest Rights Committee in 2022. In spite of informing to defendant about pending claim, just 13 days later eviction proceedings were initiated against him and he filed the suit in the trial court. Learned Trial Court after hearing both the parties rejected the application of the defendants.

After the Civil Court denied relief, the forest department approached the High Court for dismissal of the suit. The High Court is now dealing with a Civil Revision Application filed by the Assistant Conservator of Forest under Order VII, Rule 11(d) of the CPC, seeking dismissal of the suit filed by the tribal. In the case made by the forest department, under Section 26(5) of the Indian Forest Act, no civil court has jurisdiction if forest officials evict or demolish construction under the Act. As a result, the forest department asserts that the suit is not maintainable.

In response to the argument in the High Court, Advocate AA Dhawas for the tribal man cited a government resolution prohibiting removal of encroachment in a claim before the District Level Committee. In the said GR, dated November 11, 2016, it has been specifically directed that, till the decision of District Level Committee on appeal by the dwellers under the “Dwellers Act”, no action of removal of encroachment be executed.

After hearing both parties’ arguments, the court stated at the outset that Section 26(1-A) of the IFA (Indian Forest Act) did not apply to forest dwellers whose claims were pending.

The court also noted that, while the forest department claims that the tribal claim was rejected in 2015, there was no evidence to support that claim.

“On perusal of documents on record, it appears that though it is stated that the claim of the plaintiff has rejected under Section 3(2) of the Dwellers Act, however, nothing is placed on record to show that there was any hearing granted to the plaintiff or order of rejection is duly communicated to the plaintiff. The communication of order is necessary.” (Para 10)

The court stated that if there is no communication to the concerned person whose claims are under the Traditional Forest Dwellers Act, he cannot agitate his claim before Superior Authorities.

While upholding the trial court’s order and rejecting the application, the court stated that “The defendants may be right in submitting that the plaintiff (tribal) cannot be treated as a Traditional Forest Dwellers, however, there has to be adjudication on that issue and the same is required to be communicated to the plaintiff so that the plaintiff can take an appropriate steps.” (Para 12)

The full judgment can be read here.

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The post Bombay HC observes that prima facie officials of the forest department wanted to evict a tribal without following due process appeared first on SabrangIndia.

On April 17, the Supreme Court granted bail to two accused who were alleged to belong to the CPI (Maoist) and were further alleged to have a role in the murder of two Telugu Desam Party (TDP) leaders. In this 2018 murder case of TDP leaders, the court granted bail on the grounds that the accused had been detained for more than four years and that charges had not yet been framed.

The Court also observed that the materials on record fail to provide reasonable grounds for believing that the allegations against the appellants of commission of an offense under the UAPA are prima facie true, and thus the bar against granting bail under Section 43D(5) of the Unlawful Activities (Prevention) Act was not invoked.

 “We have examined material relied upon against the appellants in paragraph 5 of the additional affidavit of the respondent as well as the chargesheet. Taking the material against the appellants as it is and without considering the defence of the appellants, we are unable to form an opinion that there are reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true. Hence, the embargo on the grant of bail under proviso to sub-section (5) of Section 43D will not apply in this case.” (Para 21)

The division bench of Justice Abhay S. Oka and Justice Rajesh Bindal also noted that:

“The appellants are in custody for four and half years. The charge has not been framed and the prosecution proposes to examine more than 140 witnesses. Some of the accused are absconding. Thus, there is no possibility of the trial commencing in the near future.” (Para 22)

Brief background of the case:

On September 23, 2018, Kidari Sarveswara Rao, a member of the Legislative Assembly and whip of the Telugu Desam Party in the Legislative Assembly, and Siveri Soma, a former Telugu Desam Party MLA, were killed near the village Livitiputtu, Pothangi Panchayat, within the jurisdiction of Dumbriguda Police Station in Visakhapatnam.

On the same day, the Personal Secretary of the deceased, a sitting MLA, filed a FIR against 45 accused persons allegedly affiliated with the Communist Party of India (Maoist), a designated terrorist organisation specified in the first schedule of the UAPA.

Previously, the investigation was conducted by a Special Investigation Team, which was later transferred to the National Investigation Agency (NIA). The appellants (accused nos. 46 and 47, respectively) were arrested on October 13, 2018, and their chargesheets were filed on April 10, 2019. The chargesheet named 79 (originally 85) accused persons and 144 witnesses. The charges have yet to be framed.

Submissions made by the counsel for the appellants:

Senior Advocate Colin Gonsalves informed the Court that there is no evidence against either of the accused to show that they provided shelter and logistical support to the Maoists or co-accused, or that they planted landmines. He also claimed that there is no prima facie evidence of the two appellants’ involvement in the offense of murder in question.

It was argued that the charges in the case had not been framed, and that with 144 prosecution witnesses to be examined, the trial would take years, and that the appellants’ continued incarceration would amount to a violation of their rights under Article 21 of the Constitution.

Submissions made by the counsel for the state:

The ASG, K. M. Nataraj, appearing for the Union of India, on the other hand submitted that according to the Memorandum dated October 13, 2018 under Section 27 of the Indian Evidence Act, 1872 shows that a steel can weighing about 10 kg, containing bolts, nuts, and filled with explosive material, and connected to a detonator through a wire, was recovered at the instance of accused no. 46.

He stated that accused no.46’s disclosure statement on January 16, 2019 shows that he had also purchased a large quantity of medicines worth Rs.8000/- and handed them over to a Maoist.

It was also claimed that the appellants were in constant contact with each other via cell phones for 18 days prior to the incident, after which the accused no.47’s cell phone was turned off.

He maintained that there is strong prima facie evidence against the appellants and that, as a result of the proviso to subsection (5) of Section 43D of the UAPA, the appellants are ineligible for bail.

Observations made by the court:

One of the most important considerations for the bench in deciding this case was that the accused no. 84 had been granted bail by the High Court on the grounds that he was not a suspect in the crime. Because, as the state’s counsel argued, the medicines were purchased by accused no. 46 at the request of accused no. 84, who had already been granted bail, the court made the following observation:

“We fail to understand how the purchase of medicines worth Rs.8000/- by accused no.46 at the instance of accused no.84 much before the incident has any connection with the incident which took place on September 23, 2018. This is apart from the fact that accused no.84 has been granted bail by the High Court.” (Para 12)

Concerning the disclosure statement date of January 16, 2019, the Court stated that the first condition for the applicability of Section 27 is that the information provided by the accused must lead to the discovery of the fact as a direct result of such information. The Court made the following observations:

“Now looking at the Discovery Memo dated 16th January 2019, at the highest, it means that accused no.46 showed the shop from which the medicines were purchased. Thus, he led the police to the shop. There was no discovery of any fact as a result of the information supplied by accused no.46. The same is the case with the other allegation that accused no.46 showed a Xerox shop where accused no.47 and one Kiran were allegedly standing on 23rd September 2018. Therefore, the statements of accused no.46 that he would show the medical shop and the Xerox shop may not be, prima facie, admissible under Section 27 of the Evidence Act.” (Para 14)

The court also stated that the appellants made confessional statements immediately after the police apprehended them, even before their arrest was recorded, which raises questions about the authenticity of the statements. The court said the following:

“In any case, accused no. 46 and 47 were not present at the time of the commission of the offence. Therefore, we cannot form an opinion that there are reasonable grounds for believing that the accusations against accused no. 46 are prima facie proved.” (Para 18)

Based on the observations made by the court above, the court concluded that the materials on record do not state reasonable grounds for believing that the allegations of commission of an offense under the UAPA against the appellants are prima facie true. The court then ruled that the prohibition on bail provided under proviso to subsection (5) of Section 43D does not apply in this case. Thus, after hearing the appellants and respondent, the Court directed the Special Judge, NIA to release the appellants on bail within a week on appropriate conditions.

The complete judgment can be read here.

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Gujarat HC: Mere filing of FIRs insufficient grounds for arrest under the Preventive Detention Act

The post 4 years behind bars, bail granted to two accused arrested under UAPA appeared first on SabrangIndia.

The Supreme Court expressed shock that the National Security Act (NSA) was incorrectly invoked against Samajwadi party leader Yusuf Malik in a revenue recovery case. A Division bench of Justices SK Kaul and Ahsanuddin Amanullah observed that NSA was invoked against Malik without application of mind.

The allegation against Malik was that he did not allow the revenue officials to collect land revenue from one Jamal Hasan and that he threatened the officials from sealing the residence. Two FIRS were filed against him and he secured bail in both in July 2022. However, proceedings under National Security Act were initiated against Malik in April 2022 by the SHO Moradabad and Senior Superintendent

In the detention proposal it was alleged that since Malik threatened the Additional Municipal Commissioner and used abusive language, an atmosphere of fear and terror had been created in the officials of Nagar Nigam. Accordingly, the District Magistrate passed an order on April 24, 2022 detaining Malik as a prisoner of general class under Section 2(3) of NSA. On June 1, 2022 the UP government gave direction to tentatively detain him for 3 months which was further extended for another 3 months and then again for 3 months.

The court observed that the revenue officials went to the property to recover dues despite it not being a usual practice. The court said that even if it is assumed that the allegations against Malik are true, the invoking of NSA is “shocking and unsustainable”.

“That such a proposal was made, received the imprimatur of the senior officer(s) and even of the Advisory Board does not reflect well on the manner in which the authorities exercise their mind by invoking the provisions of the said Act,” the court said.

Upon perusal of statement of objects and reasons, the court noted that NSA is to be invoked to control the anti-social and anti national elements including secessionist, communal and pro-caste elements, that affect the services essential to the community, thereby posing a grave challenge.

The court observed that this was a case of non-application of mind by the authorities and thus decided to quash the proceedings.

“We find no element present in the case for exercise of this power of detention and extension of detention and have no hesitation in quashing the proceedings under the said Act as wholly without any basis”.

The complete order may be read here:

About NSA

The National Security Act is one of the many draconian laws in the country and comes in the category of laws that deal with what is popularly known as states of exception i.e. situations which are exceptional and which cannot be dealt with under or by ordinary law. “The state carves out exceptions to the law under the guise of dealing with emergent situations which in turn are defined by the state as per its own discretion. They derive popular acceptance under the pretext of security of state, public safety coupled with jingoistic nationalism and judicial deference. Slowly the state of exception starts widening its reach and spreads its tentacles from measures for dealing with extraordinary times to measures for dealing with ordinary times. Thus preventive detention law which was initially a law valid for two years with a sunset clause has now become a permanent law in the form of the National Security Act, 1980,” said Mihir Desai in his lecture in September 2021 at an online event organised by the Gauri Memorial Trust and Citizens for Justice and Peace.

“Some of the worst state inflicted crimes have historically been carried out under the cover of legislation. Many atrocities are not through a flouting of the law but a result of the laws. These laws enable and legitimise state repression in various ways,” he added.

NSA allows preventive detention up to 1 year and it follows the ‘jurisprudence of suspicion’ in the sense that persons are detained not because they have committed any crime but because it is suspected that they might commit a crime.

Dr Kafeel Khan in UP was detained under NSA and so was Chandrasekhar Azad, who was arrested in 2017, released on bail and immediately placed under preventive detention.

The constitutionality of NSA has also been challenged in the Supreme Court but the same has been upheld in A.K. Roy vs Union of India [AIR 1982 SC 710]. In this case, the court held that NSA act was neither vague or arbitrary and issued certain directions to safeguard the detenus. These directions include, informing the kith and kin about detention, detention should be in place of usual residence of detenu, the detenue must be housed separately from the convicts and that No treatment of punitive character should be meted out to him.

Related:

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NATIONAL SECURITY LAWS PROMOTE JURISDICTION OF SUSPICION AND DENY REMEDIES: GAUTAM BHATIA

The post SC raises concern over frivolous use of NSA appeared first on SabrangIndia.

On April 10, while setting aside a preventive detention order, the Supreme Court noted that such preventive detention laws in India are a colonial legacy with a high potential for abuse and misuse. The Court emphasized that these laws allowing the state with arbitrary powers must be scrutinized and used only in the rarest of the rare cases.

A Bench of Justice Krishna Murari and Justice V. Ramasubramanian said that, “Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties.”

This judgment hold true as preventive detention laws in India can be traced back to the early days of colonial rule. The then enactment Bengal State Prisoners Regulation III of 1818 had allowed detention without trial. It was extended by the British to other provinces and eventually took the shape of Defence of India Acts of 1915, justified as World War I measures.

It is important to note here that the numerous preventive detention laws and anti-terror legislations that exist in our country have become a vital component of India’s legal system, despite the fact that they were not intended to be. The state is abusing these laws to limit the personal liberty guaranteed to individuals in the Indian Constitution. Apart from National Security Act, the main law on preventive detention, we have the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980; and the Jammu & Kashmir Public Safety Act, 1978, to name a few. In addition to this, almost every state has a Goondas Act, such as the U.P. Control of Goondas Act, 1970.

The Jammu and Kashmir Public Safety Act, 1978, is one of the most frequently invoked pieces of legislation that includes a provision for preventive detention. According to central government data, there have been 450 preventive detentions in Jammu and Kashmir since the abrogation of Article 370. Among the detainees are some of the state’s most prominent leaders and ex-CMs, including Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti. These detentions have nothing to do with national security; the government enacted these laws to silence opposition voices.

Decades have passed, and instead of moving towards building a system where no state agencies have the power of infringing upon the individual liberty guaranteed to us, we are still stuck at the same position, with laws with vague wording and wide aspects allowing detention with trial and disbarring anticipatory bail.

The Indian courts have repeatedly reminded the state and its agencies that preventive detention laws are not intended to be used as tools of abuse. In June 2022, the Supreme Court had stated that powers under the preventive detention law are “exceptional” and cannot be used on a regular basis because they impinge on an individual’s freedom and liberty. The observation came as the Supreme Court overturned a detention order for two people in Telangana. Because these laws are highly administratively steered and limit the scope of judicial intervention, they sometimes place unrestrained and largely unsupervised power in the hands of the executive without any liability, allowing for grave misuse of such powers.

In November 2022, the Madras High Court had dealt with two writ petitions which were filed to issue a writ of habeas corpus against the detention orders passed by the District Magistrate and quashed the same and had directed the respondents to produce the body or person of the detenus. The division bench of M.S. Ramesh and N. Anand Venkatesh held that the impugned detention orders suffer from infirmity and illegality, thus set aside the same, and directed the respondent to release the detenus and pay them compensation. The Court had also examined the previous Prison Statistics India Report, and observed that Tamil Nadu had occupied an unenviable first place in detaining the maximum number of people under its preventive laws in the entire country, and had said that the inferences drawn can be twofold, either the State is inching towards lawlessness or that the jurisdiction of suspicion has now become a convenient and potent weapon in the hands of the law enforcing agencies to indiscriminately detain people by a conscious abuse of its statutory powers.

The Madras HC had further said that preventive laws have become the favourite hunting ground for the police and an instrument of convenience, whereby common criminals and undesirables are dealt with, on the sure knowledge that once a detention order is passed, such persons are bound to be jailed for at least 3-6 months, pending reference to the Advisory Board or a challenge before this Court by way of a habeas corpus petition.

On April 20, 2023, the Jammu and Kashmir High Court pointed out that the detaining authority had used the expressions “Public Order” and “Security of the State” with an wavering mind and uncertainty when issuing the detention order for Journalist Fahad Shah. A bench of Justice Wasim Sadiq Nargal noted that “public order” and “security of the State” are distinct concepts, though not always separate, and that while every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order, and every public disorder may not prejudicially affect “security of the State.”

Concentrating on the mandate of Section 8 of the Public Safety Act, the bench observed that the maintenance of public order and Security and Sovereignty of the country are two distinct expressions with different connotations that are demarcated on the basis of gravity and cannot be used concurrently, proving beyond any doubt that the detaining authority did not apply its mind when passing the order of detention.

The bench then directed for the detention order of journalist Fahad Shah to be quashed. The bench was hearing a Habeas Corpus petition filed by Fahad’s elder brother, who was challenging his detention order, pursuant to which he had been placed under preventive detention in accordance with an order issued by the District Magistrate of Srinagar.

Attention also needs to be given to the time it usually takes to apply for, let alone secure, judicial relief benefits the executive, something which they are fully aware of and take advantage if. Even when such laws are found to be misused, the ultimate goal of keeping the person behind bars for an extended period of time is met, as has been happing since the last 9 years. Even though the Supreme court has consistently stood up to any violation of citizens’ fundamental rights, the fact is that the high backlog of pending cases that is currently overburdening courts means that writ petitions against preventive detention orders take several months to be heard. In many cases, the bail cases mentioned before Supreme Court yield no result and have to be sent back to the lower courts as the judgments passed by them are lacking. As a result, the process becomes the punishment.

Brief Facts of the current case

In November 2021, officers from the Directorate of Revenue in Delhi arrested the appellant and other syndicate members based on an intelligence report about a syndicate of Chinese, Taiwanese, South Korean, and Indian nationals smuggling gold into India.

The DRI sent a proposal to the Joint Secretary (COFEPOSA) in January 2022 to issue an order of detention under the COFEPOSA Act against the appellant, and the detaining authority then passed the detention order in February 2022, and the appellant was arrested by the DRI.

The appellant sent a representation letter to the Central Government and then to the Advisory Board. Following a hearing, the Advisory Board advised the Central Government to reject the representation, which was done after a 60-day delay. The appellant then petitioned the High Court to quash the detention order, but it was dismissed on November 3, 2022.

However, due to the death of his father, the Court released the appellant from custody in January 2023 as interim relief. He was later released from detention because the detention order had expired.

The appellant has filed an appeal with the Supreme Court against the Delhi High Court’s November 3, 2022 judgment wherein the High Court had denied the appellant’s request to vacate the detention order due to a delay in hearing his representation.

Arguments put forth in the current case:

Counsel for the appellant:

The appellant’s counsel contended that, under Article 22(5) of the Indian Constitution, a representation made by the detainee in cases of preventive detention must be considered as soon as possible, and that an excessive delay in considering the representation is grounds for the detention order to be set aside.

The counsel cited the decisions given by the Apex Court in the case sof K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors and Ankit Ashok Jalan v. Union of India & Ors. Judgment, both of which are Constitution Bench judgments, where it has been stated that the Central Government must wait for the decision of the Advisory Board, are in direct contravention with Constitution Bench judgments of this Court in Pankaj Kumar Chakraborty And Ors. v. State of West Bengal and the Jayanarayan Sukul v. State of West Bengal, and due to the apparent conflict, the issue needs to be referred to a Larger Bench.

It was also argued that the documents provided to the appellant herein as grounds for his preventive detention were illegible and in Chinese, and thus the impugned detention order as against the appellant must be quashed on this basis as well.

Contentions of the respondents:

The respondents contended that there was no difference between the Pankaj and the Ashok Jalan cases, as argued by the appellant. They claimed that the appellant’s decisions were made under the Preventive Detention Act, whereas the Ashok Jalan and Abdullah Kuni cases were made under the COFEPOSA Act.

Analysis by the Court

1. Application of preventive detention laws.

According to the Supreme Court, preventive detention laws in India are a colonial legacy with a high potential for abuse and misuse. Laws with the potential to grant the state arbitrary powers must be scrutinized in all circumstances and used only in the most exceptional of circumstances.

The Court also stated that in cases of preventive detention, where a person is detained not for a crime committed but for a perceived risk of committing a crime, courts should always err on the side of caution and give the detainee the benefit of the doubt. Even minor procedural violations should be resolved in the detainee’s favor.

2. Delay in representation

According to the Supreme Court, in cases of COFEPOSA Act preventive detention, the detainee has the right to make representations to the detaining authority, the Government, and the Advisory Board. These representations must be decided as soon as possible, according to Article 22(5) of the Indian Constitution. The detainee is released if the representation is accepted by the government or the detaining officer. If the representation is rejected, the detention period is extended.

The Court found in this case that, while the detaining authority considered the appellant’s representation promptly, the Government took 60 days to consider it. The appellant contended that the delay was fatal to the prosecution’s case and was sufficient reason to vacate the detention order.

The Court held in the Pankaj Kumar Case that the central government must act independently of the Advisory Board and can decide the detenue’s representation without hearing from the Advisory Board.

The Court also cited the case of Abdulla Kunhi, in which the petitioner’s preventive detention under the COFEPOSA Act was challenged on the same grounds. This Court’s Constitution Bench considered the issues of submitting a representation before and after the matter was referred to the Advisory Board, and held that the Government must wait for the Advisory Board’s decision before making its own decision on the representation.

The Court observed that, while the two sets of judgments appear to be in conflict at first glance, a closer examination reveals otherwise.

The Court went on to explain that a detention order can be issued by either the government or a specially empowered officer under the COFEPOSA Act of 1974 and the Preventive Detention Act of 1950. Section 3 of the Preventive Detention Act, on the other hand, requires the empowered officer to seek approval from the Government for continued detention within 12 days of the detention. Only with the approval of the government can the detention be extended. After the initial 12-day period, this approval process effectively transfers power from the empowered officer to the government, making the government the detaining authority. The COFEPOSA Act, on the other hand, does not require such approval from the government, allowing the detaining authority and the government to remain separate and independent, as per the Court.

The Court made it clear that the mandate not to wait for the Advisory Board would only apply to the detaining authority. However, according to the Abdullah Kunhi Case, the Government must wait for the Advisory Board’s decision. There is no conflict between these two judgments because they apply to two separate authorities under the COFEPOSA Act. As a result, the court held that there was no need to refer this point of law to a Larger Bench because it has already been decided.

3. Supply of illegible documents cause prejudice

The Court stated that illegible documents provided to the detainee during preventive detention can jeopardize the detainee’s ability to file a representation. This violates the principles outlined in Article 22(5) of the Indian Constitution, which states that the detaining authority must explain the reasons for detention in a language that the detainee understands. It was determined that in such cases, the relief under Article 22(5) and the statutory provisions are void because the detenue cannot defend himself against an unknown threat.

The Court noted that the High Court had quashed the co-detainee’s detention order on the same grounds of illegible Chinese documents. It was noted that the current appellant’s circumstances were identical to those of the co-detainee. Analyzing the case, the Court had noted that the principle of parity applies in the present case since a co-detainee with identical circumstances had already been granted relief of quashing the detention order against him. In the case of Gian Chand v. Union of India & Anr., the court held that the principle of parity must apply in such cases.

Conclusion

Owing to the analysis provided above, the court set aside the detention order in the current case and concluded that, “This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.”

The Court held that although the appellant has already been released due to the expiration of the detention period, the detention order must be set aside for the sake of clarity on the point of law. Therefore, the Court allowed the appeal.

The full order can be read here:

According to the preceding order, the right to legal consultation and representation should be viewed not only through a constitutional or statutory lens, but rather as a right that flows from the right to enjoy personal liberty, which is a fundamental human right. It is impossible for a layperson unfamiliar with legal knowledge and with no prior experience of such a situation to understand the reasons for his detention in the complicated world of law, and thus, safeguards had been put in place by our lawmakers. It is necessary to note that countries like United States of America and the United Kingdom are alien to the concept of preventive detention laws. Their criminal justice system works on due process of law. No other nation except India exercises preventive detention during peacetime.

As previously stated, courts have repeatedly held that statutory powers restricting an individual’s personal liberty should be used diligently, with great care, and not on a regular basis. Unfortunately, it appears that this advice has only scratched the surface and is falling on deaf ears, as the government continues to abuse these powerful weapons. Indeed, in many cases, such overarching regulations arose from the colonial State’s desire to suppress collective personal liberties of those in dissent. The fact that the leaders of a post-colonial, democratic polity have not been able to muster the will, or even the resolve, to repeal these laws points to a damaging loop of misuse and abuse. The excruciatingly long time it takes our legal system to dispose of such proceedings, combined with the detainee’s lack of any redressal mechanism other than the filing of writ petitions for quashing of preventive detention orders, ensures that the individual perpetually victimised. As a result, the ultimate goal of the detainee’s political or personal detention is catered to. Preventive detention gives the executive enormous power. Indian history bears witness to its draconian application against people who are accused of conspiring against the state or society. Thus, preventive detentions laws should no longer be viewed as a double edges sword that Indian cannot do away with or a necessary evil that we have to bear, these are colonial laws that serve authoritarian regimes, and must be repealed.

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For a successful revolution it is not enough that there is discontent. What is required is a profound and thorough conviction of the justice, necessity and importance of political and social rights.

— Dr. B. R. Ambedkar

In a harrowing incident, two infants suffered serious burn injuries after two gang-rape accused out on bail set fire to the 11-year-old Dalit rape survivor’s house in Uttar Pradesh’s Unnao district. The incident happened on February 13, 2022, when the men gang-raped the minor girl. One of the infants who was injured was the victim’s six-month-old son, who was conceived during the assault, and the other was her two-month-old sister.

According to the PTI, a group of men led by the two rape suspects burned down the survivor’s home and beat up her mother after she refused to withdraw her complaint against them. According to chief medical superintendent Sushil Srivastava, the rape survivor’s infant son received 35% burns on his body while her sister received 45% burns in the incident. The two injured infants are fighting for their lives in Kanpur hospital.

According to media reports, a thorough investigation into the incident is underway, and the Uttar Pradesh Police is looking into others named in the FIR.

It is crucial to note here that this is not the first attack on the victim’s family as a result of their refusal to drop the rape case. On April 13, five days before setting fire to the house, the survivor’s father was attacked with an axe by her grandfather and uncle, who had sided with the accused, along with four other people. The police allegedly took no action despite the father’s identification of the men involved in the attack on him. In a video of her father, he can be heard saying that he complained to the police, but they did nothing. The family has accused the local police of protecting the accused. The mother of the survivor has also claimed that their home was purposefully set on fire in order to kill her daughter’s infant son.

The post regarding the news can be read here:

While all eyes are on #AtiqueAhmed, 2 INFANTS with major BURNS are struggling for their LIVES.

One of the babies was born after a minor Dalit girl’s alleged gang-rape in Unnao last yr. 2 accused got bail last week, beat up victim’s father, cops took no action. And this happened pic.twitter.com/aV2hGoj9Jm

— Tanushree Panday (@TanushreePande) April 18, 2023

This incident comes just a day after the Uttar Pradesh chief minister Yogi Adityanath had boasted of the law and order situation in the state, saying, “UP guarantees you (businessmen) the best law and order situation.” But, not all is okay in Uttar Pradesh, and has never been for the Dalit community, especially for the Dalit women. Prior to this, in the year 2017, Adityanath had also claimed that Dalits, farmers and the poor are the government’s priority. 

The situation of caste and gender-based atrocities against Dalit women in India

For most Dalit women, the reality of caste-based gender violence is perpetual, persistent and constant. In the year 2020, the chief minister had launched ‘Mission Shakti’ campaign which promised ‘zero tolerance’ towards crimes against women. However, during the same year of 2020, 604 cases of rape of Dalit women were registered in Uttar Pradesh. Of them, 122 victims were minors, according to data from the National Crime Records Bureau. It is also to be noted that in 2019, there were 545 cases of rape in UP in which victims were Dalit women, and 526 in 2018, which means, that as the years have progressed, gender and caste based atrocities faced by Dalit women have only increased. And yet, according to the Chief Minister of the state, all remains well.

But, these atrocities and discrimination faced by the Dalit survivors and families do not end at the commission of the crime. India is failing to fulfill its legal and moral responsibilities to protect Dalit women and girls from sexual violence. Survivors and their families frequently face multiple obstacles to justice, and these common impediments highlight the systemic nature of discrimination faced by Dalit communities in India’s criminal justice system and wider society. The condition has become so dire that instead of fearing the consequences of committing a crime against human body, perpetrators are well aware that if they commit crimes against Dalit community members, they will face far less punishment because crimes are rarely investigated or prosecuted. And in cases where the perpetrators belong to the dominant class, the chances of the authorities siding with the accused are higher than the case ever reaching a conviction.

It is to be noted that the conviction rates remain abysmally low for the small proportion of sexual violence assaults that India’s criminal court system does prosecute. According to the National Crime Records Bureau’s latest data, there was a 45 percent increase in reported rapes of Dalit women between 2015 and 2020. The data said 10 rapes of Dalit women and girls were reported every day in India, on average. According to the National Family Health Survey 2015-2016, sexual violence rates were highest among women from Scheduled Tribes (Adivasi or Indigenous Indians) at 7.8 percent, followed by Scheduled Castes (Dalit) at 7.3 percent, and Otherwise Backward Castes (OBCs) at 5.4 percent. For the sake of comparison, as per the data, the rate for women who were not marginalised by caste or tribe was 4.5 percent.

According to studies, the vast majority of rapes against Dalit women go unreported. Common barriers include a lack of family support and police reluctance to register complaints against upper caste men. The legal and judicial systems are inaccessible to many Dalit women. Furthermore, those Dalit women who want to file police complaints frequently face difficulties. Collecting evidence and witness testimony is even more difficult. Police are slow to register complaints, investigations into Dalit women are frequently delayed, and officials frequently deny that a rape had even occurred.

According to a Human Rights Watch report, if a case is filed, the woman will face new challenges before a judge “whose gender biases and caste affiliations can greatly influence the judgment in the case.” Additionally, fearing the retaliation from perpetrators, who are frequently in positions of relative power in the community and belong to the dominant caste, witnesses rarely agree to come forward to testify or corroborate the victim’s statement. In rare cases that they do, incidents similar to the aforementioned happen.

On March 15, 2021, a parliamentary standing committee on Home Affairs report on ‘Atrocities and Crimes against Women and Children’ was presented in the Rajya Sabha. According to the report, it was held that Dalit women faced difficulties in filing atrocity cases against them due to “poor implementation of existing laws and the apathetic attitude of law enforcement agencies.”

According to the National Council for Women Leaders, who published a report titled ‘Caste-based Sexual Violence and State Impunity,’ caste becomes a critical factor in how sexual violence survivors access justice. According to the report, even if a FIR is filed, the accused or his family threatens the woman or her family with further violence if they refuse to drop the case. Many survivors and their families also struggled to keep track of lengthy investigations and trials. Furthermore, institutions dealing with the cases, such as hospitals, frequently violated established investigation protocols.

According to the NCWL report, caste-based attitudes and discrimination pervade the entire law enforcement and criminal justice system, including the police, medical officials, prosecutors, and judges, and these attitudes impede Dalit women and girls’ access to justice. It is important to note that under the  Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act (PoA Act), the Indian legal system has special provisions for crimes committed against people marginalised by caste and tribe, including state support and special courts to streamline cases filed under the law. However, in order for cases to be tried under the law, survivors must first report the crimes to the police, after which an investigation takes place, and only then is the case brought to trial. As per the NCWL report, access to justice is limited for women from less privileged castes, particularly in rural areas, at each stage.

The authorities’ reluctance to include appropriate provisions under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act weakens the survivor’s case. It should be noted that there is no provision for anticipatory bail under the POA Act, and the quantum of punishment in the event of conviction is higher. In 15 percent of the cases where survivors or families of victims were able to get an FIR registered, justice was stalled due to the police not including applicable provisions of the PoA Act. It is crucial to highlight here that in the aforementioned case, the rape accused hate gotten bail even after having raped a minor Dalit girl. Since the PoA act does not allow for bails to be granted the accused, it can fairly be deduced that the perpetrators had not be booked under the PoA act.

This case highlights the terrifying impunity that dominant caste rapists enjoy in India, as well as the criminal justice system’s failure to provide justice to marginalised community survivors. It is a major betrayal of the justice system’s promise to hold criminals accountable and to provide a safe haven for women in the country. This tragic Unnao case reaffirms Dalit women’s complete powerlessness in the criminal justice system and serves as yet another cautionary tale for women considering approaching the police or the courts for redress against violence. Despite the hashtags and outrage surrounding the Hathras case, sexual violence against Dalit women is not a new phenomenon.

Provisions under PoA Act for providing protection to the kins of the survivor

It is essential to highlight here that in addition to the above-mentioned protections provided to the victims of caste-based crimes under the PoA Act, the act also provides for granting protection to the family of the survivor. These provisions guaranteeing protection to the families of the survivor are owning to the atrocities, hatred and oppression faced by the marginalised communities at the hands of the dominant communities for having had the audacity to rise against them. The provisions are as follows:

Section 15A. Rights of victims and witnesses—

(1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence

(3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.

(4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.

(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.

(6) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses–

(a) the complete protection to secure the ends of justice;

(b) the travelling and maintenance expenses during investigation, inquiry and trial;

(c) the social-economic rehabilitation during investigation, inquiry and trial; and

(d) relocation

(7) The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such Court shall periodically review the protection being offered and pass appropriate orders.

(8) Without prejudice to the generality of the provisions of sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including–

(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;

(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;

(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection:

Provided that inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such Court and concluded within a period of two months from the date of receipt of the complaint:

Provided further that where the complaint under clause (c) is against any public servant, the Court shall restrain such public servant from interfering with the victim, informant or witness, as the case may be, in any matter related or unrelated to the pending case, except with the permission of the Court.                                                   

(9) It shall be the duty of the Investigating Officer and the Station House Officer to record the complaint of victim, informant or witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence, whether given orally or in writing, and a photocopy of the First Information Report shall be immediately given to them at free of cost.

(10) All proceedings relating to offences under this Act shall be video recorded.

(11) It shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the following rights and entitlements of victims and witnesses in accessing justice so as–

(a) to provide a copy of the recorded First Information Report at free of cost;

(b) to provide immediate relief in cash or in kind to atrocity victims or their dependents;

(c) to provide necessary protection to the atrocity victims or their dependents, and witnesses;

(d) to provide relief in respect of death or injury or damage to property;

(e) to arrange food or water or clothing or shelter or medical aid or transport facilities or daily allowances to victims;

(f) to provide the maintenance expenses to the atrocity victims and their dependents;

(g) to provide the information about the rights of atrocity victims at the time of making complaints and registering the First Information Report;

(h) to provide the protection to atrocity victims or their dependents and witnesses from intimidation and harassment;

(i) to provide the information to atrocity victims or their dependents or associated organisations or individuals, on the status of investigation and charge sheet and to provide copy of the charge sheet at free of cost;

(j) to take necessary precautions at the time of medical examination;

(k) to provide information to atrocity victims or their dependents or associated organisations or individuals, regarding the relief amount;

(l) to provide information to atrocity victims or their dependents or associated organisations or individuals, in advance about the dates and place of investigation and trial;

(m) to give adequate briefing on the case and preparation for trial to atrocity victims or their dependents or associated organisations or individuals and to provide the legal aid for the said purpose;

(n) to execute the rights of atrocity victims or their dependents or associated organisations or individuals at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights.

(12) It shall be the right of the atrocity victims or their dependents, to take assistance from the Non-Government Organisations, social workers or advocates.]

Section 21. Duty of Government to ensure effective implementation of the Act.

(1) Subject to such rules as the Central Government may make in this behalf, the State Government shall take such measures as may be necessary for the effective implementation of this Act.

(2) In particular, and without prejudice to the generality of the foregoing provisions, such measures may include,–

(i) the provision for adequate facilities, including legal aid, to the persons subjected to atrocities to enable them to avail themselves of justice;

(ii) the provision for travelling and maintenance expenses to witnesses, including the victims of atrocities, during investigation and trial of offences under this Act;

(iii) the provision for the economic and social rehabilitation of the victims of the atrocities;

(iv) the appointment of officers for initiating or exercising supervision over prosecutions for the contravention of the provisions of this Act;

(v) the setting up of committees at such appropriate levels as the State Government may think fit to assist that Government in formulation or implementation of such measures;

(vi) provision for a periodic survey of the working of the provisions of this Act with a view to suggesting measures for the better implementation of the provision of this Act;

(vii) the identification of the areas where the members of the Scheduled Castes and the Scheduled Tribes are likely to be subjected to atrocities and adoption of such measures so as to ensure safety for such members.

(3) The Central Government shall take such steps as may be necessary to co-ordinate the measures taken by the State Governments under sub-section (1).

(4) The Central Government shall, every year, place on the table of each House of Parliament a report on the measures taken by itself and by the State Governments in pursuance of the provisions of this section.

These provisions are not talked about, and the marginalised community often remain unaware about them. The most recent instance where the family of the Dalit victim was provided police protect was that of the Hathras Rape Case. In the case of the alleged gang-rape and murder of a 20-year-old woman in Hathras in Uttar Pradesh, the Supreme Court bench comprising the then Chief Justice of India S A Bobde and Justices A S Bopanna and V Ramasubramanian had asked the UP state government if witnesses in the case had been provided protection and if the family of the victim had a lawyer. In a compliance affidavit filed in the top court, the Yogi Adityanath-led government said “in order to ensure the security of victim’s family/witnesses, three-fold protection mechanism has been devised” — armed constabulary component, civil police component comprising of guard, gunners and shadows and installation of CCTV cameras and lights.

It is unfortunate that, despite laws aimed at protecting the rights of individuals from the marginalised community, the situation continues to deteriorate and is becoming worse. These laws, designed to protect human rights, remain out of reach, continuing to be on paper while the perpetrators escape. Even after these crimes are committed openly and visibly, the state and parts of society in India conspire to downplay or erase the links between sexual violence and caste hierarchies. Today, as more Dalit women dare to stand up to caste oppression, the backlash appears to be more brutal than ever. It is the responsibility of the state and its agencies, as well as the citizens, to ensure that the perpetrators of these crimes are brought to justice. It is critical that, in the face of a consistent pattern of families of Dalit victims and rape survivors facing backlash, human rights and Dalit rights defenders hold consistent protests so that the state is held accountable to providing the police protection guaranteed under laws to the families of the victims, in addition to the other legal provisions available for safeguarding the Dalit community’s rights.

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The post UP: Five days after attack on father of Dalit gang rape survivor, two infants and survivor set on fire at home by gang-rape suspects appeared first on SabrangIndia.

Amidst Ramadan when stories of harmony and brotherhood come forward, it fills one’s heart. One such story came from Kerala’s Malappuram. Two temples in the district  organised mass Iftar for Muslims. Committees of the Sree Puthuveppu Manaliyarkavu Bhagavathi temple in Othalurand Chathangadu Sree Maha Vishnu Temple in Vaniyannur near Tirur hosted the mass Iftar on April 7 and March 28, respectively, reported The New Indian Express.

Krishnan Pavittapuram, secretary of the Sree Puthuveppu Manaliyarkavu Bhagavathi temple told TNIE, “Our aim is to strengthen the bond between people from the Hindu and Muslim communities. Religious harmony is important and we want to celebrate every festival together in a peaceful and jovial atmosphere”.

One of the youngsters said that someone from the Muslim community had sponsored the annadanam during the temple’s annual installation festival which was during Ramadan. The temple management said they aim to continue hosting Iftar every year.

On the other hand, a complete contrast of this is being witnessed in Madhya Pradesh where the government has issued orders that Muslim employees cannot work in Maihar town’s famous Maa Sharda temple. Notably, Maihar is home to the Maihar gharana founded by sarod legend Baba Alauddin Khan. Clearly, this town has a syncretic history which the government aims to obliterate. The Maihar gharana produced musical greats of the country in the field of music, including Pandit Ravi Shankar, Pandit Nikhil Banerjee, and his daughter Annapurna Devi and son Ustad Ali Akbar Khan. It is said that Khan would climb the 1,063 stairs leading to the Maa Sharda temple daily and play before the goddess, reported NDTV.

This order means that two Muslims will lose their jobs which they have had since 1988. The government’s order signed by Pushpa Kalesh, deputy secretary of the state Ministry of Religious Trust and Endowments, also directed a ban on meat and liquor shops in the vicinity.

The order was issued in January when supporters of the rightwing Vishwa Hindu Parishad (VHP) and Bajrang Dal approached Usha Singh Thakur, the Minister for culture, religious trust and endowment, it has been alleged. This recent letter is just a reminder for the January order.

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The post Harmony vs disharmony in 2 states: Kerala temple welcomes Muslims; MP temple fires Muslims appeared first on SabrangIndia.

Around 200 drivers, belonging to all faiths, from all corners of Mumbai attended an Iftar party organised by the Maharashtra App-based Transport Workers Union (MAT) yesterday in Mumbai. Many of them carpooled in cabs driven by their comrades to arrive at a parking lot near the domestic airport terminal in Mumbai which doubled up as a venue for the Iftar party.

Their trade is a lonely one, with busy cars plying on far flung Mumbai roads in peak hour traffic. It was hence not surprising that many of them seemed to be meeting each other after a long time and a joyous, festive spirit permeated the air with much back-clapping, embracing and loud raucous laughter. A simple spread of Samosas, jalebis, fruits and kababs had been laid out on long, communal tables for the drivers. Close to 7 PM when it was time for Maghrib, a confusion on how to sound the azaan occurred with people scrambling to connect their mobiles to the speakers. Ultimately it fell on one of the drivers to sound the evening call for prayer. A hushed silence descended all around us as the azaan rang out. Someone reached out for an Iftar jalebi in front. It was time to break the fast. The silence persisted. For those who were not observing the roza, the act of eating together had turned into a solemn moment.

A driver who identified himself as Brahmin spoke to SabrangIndia while relishing the vegetarian iftari served to him. As an app-based driver who has seen his income dramatically plummet in the last few years with narrow margins, high costs of fuel and high living costs, he said that the union gives them bargaining power. Referring to the inter-faith gathering around him, he said , “if our car develops a snag late at night , these are the very people who come to help us out. I am a Brahmin but that is inside my home, in my private life , outside I am just a human being like everyone else here. Politics divides us. It is a ***** (uses a common expletive) thing”. 

Posters and stickers, created by CJP in collaboration with digital artist Smishdesigns were distributed in the Iftar party as stickers. They proved to be a hit among the drivers.

Two Sikh drivers who had come all the way from Kharghar in Navi Mumbai appreciated the effort and said that while on ground there is widespread unity among citizens, some people want to create an artificial divide. One of them said, “Such posters are needed to remind people of this unity in the face of manufactured controversies and attempts to vitiate the atmosphere.”

The iftar was hosted on the premises of the Mumbai chapter of Airport Aviation Employees Union (AAEU) and was attended by Nitin Jadhav, the All India joint general secretary of AAEU. Also present was Secretary, CJP, Ms Teesta Setalvad, Prashant Bhagesh Sawardekar, President, MAT and Uday Kumar Ambonkar, General Secretary, MAT.

Speaking eloquently, Mr Jadhav said, “Our space will be made available for this event every year. I am an insignificant person, this is holy work, I will always support this effort to bring people together”

Holding up the poster, Mr Ambonkar , who is also a member of the national committee of Hind Mazdoor Sabha, said , “ look at this tiranga coloured rose. It is in our hands now. It is up to us to uphold the unity of the nation “

Speaking to Sabrang India, Teesta Setalvad said, “It is CJP’s belief that counter-communities like kisan sabhas , feminist groups and labour unions among others can serve as a bulwark against divisive politics. We are taking our message of peace to members of these communities and helping them navigate disinformation and hate speech that is flooding the airwaves all around us”

For many people present the bonhomie was an everyday reality. For those of us invited to observe the celebration, the iftar meal was a welcome respite from the steadily rising drum roll of communal violence all around us.

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The post Communal harmony, Mumbai style appeared first on SabrangIndia.

The Jammu and Kashmir High Court has quashed the detention of journalist Peerzada Fahad Shah, the editor-in-chief-cum-director of digital news portal ‘Kashmir Walla’. Justice Wasim Sadiq Nagral observed that the detention order should be set aside since it not only had technical infirmities but also since the detaining authority did not apply its mind while issuing the order. Peerzada was arrested for publishing an article written by Kashmir University scholar Abdul Ala Fazili titled “The Shackles of Slavery Will Break” on April 4 2021.

Background of the case

Peerzada was placed under preventive detention under the Jammu and Kashmir Public Safety Act by the District Magistrate vide order dated March 11, 2022.

It was submitted on behalf of Peerzada that he is a reputed journalist having earned a good name and fame on international level in the field of honest and fair journalism while also being a peace loving citizen. It was contended that the allegations against him are baseless and vague and without any iota of truth to them. Peerzada was arrested on February 4, 2022 by Pulwama Police and booked him under Section 13 of UAPA [whoever advocates, abets, advises or incites the commission of, any unlawful activity], Section 124A [sedition] and Section 505 [Statements conducing to public mischief] IPC. In this case, Peerzada was granted bail and and when the order of the Court was served upon the police concern, they did not release him and shifted him to the Police Station Imam Sahib Shopian where on the same set of allegations, another FIR was registered. Once again he was granted bail and once again shifted to another Police station namely, Safakadal, Srinagar where one more FIR on the same set of allegations was registered and then a detention order under PSA was passed against him.

The Government Advocate, Sajjad Ashraf submitted that Peerzada was detained validly and legally by virtue of detention order and all statutory requirements and Constitutional guarantees have been fulfilled and complied with. He further submitted that the grounds of detention give a clear picture and the activities of the detenu were highly prejudicial to the maintenance of public order and respondents had no option but to detain him. It was also submitted that detenu was found involved in various anti-national nefarious activities.

Court’s observations

After analysing the record, the court found that relevant material or dossier was not provided to the detenu. Relying upon Supreme Court’s decision in Icchu Devi Choraria vs Union of India (1980) 4 SCC 531 , the court held that non-supply of dossier and the relevant material vitiates the detention order and cannot sustain the test of law and is liable to be quashed. In the said case, the apex court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied, copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningful. (Para 26)

Public order and state security not interchangeable

Another question raised by the court was “Whether the concepts of “public order” and “security of state” are distinct and separate”. The court cited G. M. Shah vs. State of J&K AIR 1980 SC 494, where Supreme Court had held that “law and order”, “Public order” and “security of the State” are distinct concepts, though not always separate and while every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State. (Para 29)

The court held that the detaining authority “used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty and accordingly, the detention order gets vitiated and cannot sustain the test of law and is liable to be quashed.” (Para 33)

The court observed that the ground of detention in one place mentions that activities of the detenu leads to disturbance of public order and in concluding part it mentions that the detenu’s activities are prejudicial to security and sovereignty of the country. The court thus observed that the detaining authority did not carefully evaluate and apply their thoughts while passing the detention order.

Under section 8 of the PSA, “public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of detention” (Para 36).

The court held thus,

“From the perusal of grounds of detention, it is manifestly clear that the same are vague and bald assertions without any specific details with the result that the detenu was unable to file a meaningful and effective representations. Besides the specific averment of the detenu that he has not been provided copy of the dossier and other relevant material including copies of FIRs which have been referred and relied by the detaining authority while framing grounds of detention and passing the detention order against the detenu, has not been specifically denied by the respondents and is also borne from the record.” (Para 36)

The court also found the action of the respondents to be violative of Article 22(5) of the Constitution read with section 13(2) of PSA.

Article 22(5) reads as follows:
 

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order

Section 13(2) of PSA reads as follows
 

13. Grounds of order of detention to be disclosed to persons affected by the order-

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose

Procedural requirement not followed

Further, another procedural requirement was not fulfilled since the person who executed the detention order did not swear on affidavit. The court relied on Supreme Court judgement in Abdul latief Wahab Sheikh Vs. B. K. Jha, 1987 (2) SCC 22 where the court held that the procedural requirements are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority.

No compelling reason

The court further held thus,

“That no compelling reasons have been given or shown by the detaining authority while passing the impugned order against the detenu when he was already in custody in pursuance of FIR 70/2020 in which no bail has been granted. In absence of any compelling reasons, the order of detention cannot sustain the test of law.” (Para 39)

The court thus quashed the detention order of March 2022 and Peerzada was ordered to be released forthwith.

The complete judgement may be read here:

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The post 14 months on, Kashmiri journalist, Fahad Shah’s detention under PSA quashed appeared first on SabrangIndia.

The People’s Union for Civil Liberties (PUCL) has expressed “outrage and strongly condemned the cold-blooded shooting down by a 3-member gang of politician and former minister, Atiq Ahmed and his brother, Ashraf Ahmed, at about 1030 pm on April 15, 2023 in Prayagraj (Allahabad) Government Hospital, in public and in the full glare of the media.”

In a statement issued by its general secretary, V Suresh, the civil liberties organisation has also stated that, “What is most deplorable is that Atiq and Ashraf, were surrounded by an armed team of policemen who allowed a set of media persons to interview them, when the three killers came to the spot in motorcycles, whipped out sophisticated guns and shot the brothers in cold blood at point blank range, with the armed police remaining as mute spectators doing nothing to prevent the slaughter.

Since the publicised weekend killings of Atiq and Ashraf Ahmed, several individuals and groups have raised serious questions on the murders. 

What raises serious questions about the complicity of the police is the fact that the two brothers, who have been in police custody, were brought by the UP police late in the evening at about 1030 pm on April 15, 2023, to the Prayagraj Government Hospital for a purported medical check-up.  Though handcuffed together, and surrounded by armed policemen, the two were permitted by the police to have a media meet in the open at about 1030 pm which was captured live on visual media, when the three-member killer gang shot them dead. 

The killing, the statement says, is not just a security lapse on the part of the police, who failed to check the identity of the killers posing as media persons; a much more disturbing issue is how the killer gang knew that a media meeting would be held in the open, outside the hospital.

PUCL has also raised the following “ Questions to be answered by UP Police”

1.  Why did the UP Police not seek ‘Police Custody’ of the killers of Atiq and Ashraf Ahmed when produced for remand before Duty Magistrate on 16.04.2023 itself, and agree to Judicial Custody?

2.  If the killer gang was unknown to the police, didn’t the police think it important to interrogate them to find out how the killer gang knew about the police allowing the Ahmed brothers to meet the press at an unearthly hour of 1030 pm on 15.04.2023?  

3.  Didn’t the UP police think it was important to find out who all were behind the killer-gang by interrogating the 3 youngsters who shot Atiq and Ashraf?

The answer to these questions, states PUCL, will tell us whether it was a question of mere negligence by the UP police or a deeper conspiracy by the UP police and the UP administration, in the murders themselves? 

Further, the statement says that the “suspicion” as to whether the twin killings were planned affairs gets strengthened when viewed against the background of the encounter killing by the police on April 13, 2023 at Jhansi, of Asad Ahmed (son of Atiq Ahmed) and Ghulam, both of whom were also accused of the murder of Raju Pal.  In effect, in a space of 2 days, four key accused persons in the Raju Pal murder case, had been killed in alleged encounters, by the UP police.  

Besides, Atiq Ahmed apprehended being killed in UP and his counsel had told the Supreme Court that if he was transferred from Gujarat to UP, it would literally be a death warrant. The Supreme Court while turning down the plea for protection had orally observed that since he was already in police custody, the state machinery would take care of him. Despite this grave apprehension expressed by Atiq Ahmed of being killed by the police in a staged encounter if he was brought to UP from Gujarat, the UP Government does not seem to have taken adequate steps to ensure this most basic guarantee, namely the right to life. Meanwhile, Tragically, the very state machinery that was to protect him in its custody, has failed miserably.

Another factor that raises concern is that just yesterday, April 18, reports of a crude bomb being thrown outside the house of Atiq Ahmed’s lawyer, Mr. Dayashankar Mishra, in Prayagraj suggesting that a climate of impunity to criminals in general looms large. While thankfully no one was injured, the incident has sent shock waves amongst the family members of Mr. Dayashankar Mishra and Vijay Mishra, Advocates representing the murdered Atiq Ahmed.

Finally, states PUCL ever since the present Adityanath government was sworn in on 19.03.2017, he unleashed a controversial plan to eliminate alleged criminals and gangsters with his “Thok Diye Jayenge” or “They will be knocked out” policy.   The CM also unleashed `Operation langda’ by which alleged criminals were shot in their legs incapacitating them for life.

According to Prashanth Kumar, Special Director General of Police (Law and Order), UP Police, between March, 2017 and April, 2023, there have been 10,900 police encounters in which over 5046 alleged accused persons have been injured and 185 persons  have been shot dead.  

It should be noted that the UP Chief Minister, Yogi Adityanath who has sworn an oath to ‘bear true faith and allegiance to the Constitution of India’ had previously stated that “Mafia ko mitti mein mila doonga”.  This seems to have encouraged his ministers (who, it should be pointed out, are also sworn to uphold the constitution) to give statements that the murders were “karma” or that they were “divine justice”.  What is very ominous is the news that some groups with links to the ruling party celebrated the encounters by bursting crackers.  

It is the responsibility of the UP government led by the Chief Minister to ensure that vigilante murders do not occur and that the police do not kill people extra judicially. That is the essence of rule of law. It is in this most basic aspect of the responsibility of the Uttar Pradesh government, that it has most abjectly failed. It is the right of the accused to prove their innocence in a court of law, through due process, which has been blatantly denied and summary (in)justice is meted out without fair trial. This is in blatant violation of Articles 14 and 21 of the Indian Constitution and cannot be allowed or condoned.

This position of the UP government led by Yogi Adityanath which asserts that criminals are not entitled to the rule of law is antithetical to the values of the Constitution.  To those in the public who support this amoral position that ‘gangsters’ should not be entitled to the benefits of rule of law, one should note that once an exception is made in the grand edifice of rule of law, there will be others who, the state will argue, don’t deserve the protection of `rule of law’.  If this trend is not checked the state will feel emboldened to opt for vigilante justice, including extra judicial executions, against all those questioning its actions and policies. The ground for this has been prepared through the relentless delegitimisation of all dissent, dubbing those who are exercising the right to free speech as ‘anti-nationals’.

This amoral and cynical approach has been roundly castigated by the Supreme Court as being unconstitutional.  In `PUCL vs State of Maharashtra (2014)’,  a case filed by the PUCL regarding the issue of genuineness or otherwise of nearly 99 encounters between the Mumbai police and the alleged criminals resulting in death of about 135 persons between 1995 and 1997’, the Supreme Court observed that,

“Article 21 of the Constitution of India guarantees “right to live with human dignity”. Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right”.

The Supreme Court appointed Commission of Inquiry headed by Justice V Sirpurkar to inquire into the killing of four men accused of rape by the Telangana police when the accused were in the custody of the Telangana Police, (known as the Disha rape and murder case which occurred in Hyderabad on November, 27, 2019) the  Commission came to the conclusion that the killings were murder and not justified as self-defence. The Commission also noted that:

“Just as Mob Lynching is unacceptable, so is any idea of instant justice. At any point of time Rule of Law must prevail. Punishment for crime has to be only by the procedure established by law”.

The PUCL has therefore demanded that:

1.  The SC should consider passing orders in the UP encounters PIL already pending before it, entrusting investigation into the quadruple encounter – murders  of Atiq Ahmed, Ashraf, Asad Ahmed and Ghulam, on 13th and 15th April, 2023 to an independent investigating agency, preferably a SIT, consisting of Police officials from outside UP, under the direct supervision of the Supreme Court.

2.  The case should be investigated as a custodial killing in accordance with the Supreme Court guidelines in `PUCL vs State of Maharashtra’ (2014 (10) SCC 635). The UP administration has shown no respect for the rule of law and therefore a Supreme Court monitored probe will build faith and confidence among the larger public as compared to a  probe initiated under the aegis of the UP government. 

3.  A FIR be registered into the encounter killings immediately, naming the police persons responsible for the encounters, and transferred to the `Special Investigation Team’ comprising officials from outside UP, for free, fair and independent investigation.

4.  The police officials involved in the encounters should be immediately transferred out of their districts to enable the SIT to conduct an unbiased investigation and to ensure that evidence is not tampered with. 

5.  Magisterial inquiry in accordance with law should be conducted. All the evidence, including forensic evidence by way of ammunition and weapons used, postmortem findings, chemical examination reports, electronic evidence and so on should be handed over to the jurisdiction Magistrate’s court to prevent tampering with evidence.

6.  Compensation should be given to the surviving members of the family as a partial recognition of the irreparable loss caused to them. Police officials responsible and complicit in the offence should be punished in accordance with law.

 

Related:

Extra-judicial killings in UP: A badge of honour or a matter of shame?

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A picture of the banner below:

These banners are simple, and serve as an everyday reminder to the people to not create division along the religious lines, and talk about friendship and brotherhood. They remind us of our constitution, which has no space for division, no place for discrimination. Maharashtra has been on the target of the far-right political leaders, with rallies and processions being organised every other day, promoting their divisive ideology and raising demands of unified Hindu nation. These banners provide a relief from vitiated poison and remind us that there are people who do not believe in these separatist notions, and do not want to spread hatred.

Words have tremendous power. Nehru’s “Tryst with Destiny” is one of the most famous speeches ever delivered by an Indian Prime Minister, as India gained her Independence. It was delivered on the eve of India’s independence from British imperial rule on August 14, 1947. The speech marked a new chapter in India’s history, we became an independent nation after centuries of foreign rule. In his speech, Nehru had spoken about the long struggle for independence and the sacrifices made by the people of India to achieve this goal. He had also addressed the challenges and opportunities ahead for the newly independent nation. The speech was powerful and inspiring, and it helped to rally the people of India at a crucial moment in their history.

We’ve come a long way since then, and India has changed drastically. Since then, the words of extremist far-right leaders in India have had serious ramifications for the country’s social peace and harmony. It is critical to recognize that hate speeches do more than just incite violence; they also reinforce existing prejudices and entrench existing discrimination. The current dominant political climate in India perpetrates divisiveness and hatred. This despite the efforts by citizens groups, Citizens for Justice and Peace included, to make every effort to ensure that the demonizing hate speech and hate actions of repeat offenders warn authorities so that appropriate action can be taken. Saloka Samiti was formed as an umbrella organization of women and other civil rights organisations to launch a focused and cohesive programme against this hate mongering. Many groups are working to educate Indian citizens about the disinformation and mis-information spread by far right leaders, many of the Hindutva ilk, that provoke the wider population against the religious minority community. Another section is working to provide a counter narrative to this pervasive hatred, reminding people that our country has overcome every struggle and battle together and will continue to do so.

One way of asserting methods and means of counter-speech is to evolve different means and methods, slogans, plays, songs that quietly assert a counter narrative. To counteract hateful content, spread positive messages of tolerance, equality, and truth in defense of those who are facing the hate and otherisation. One component of the solution promoted by peacemakers has frequently focused on getting political and so-called moderate religious leaders to condemn extremist ideology; identifying “authentic” voices in local communities—typically women, youth, or other community leaders, or better yet, former extremists—”to help dissuade a young person from finding that ideology appealing.”

The politically shrill demands of hate mongers and their political counterparts for a nation built on hierarch uniformity, exclusivist of religions, races and genders is being fostered by a predominant privileged caste Hindu worldview. In sharp contrast, the Indian Constitution embodies a sense of nationhood and unity in diversity and fraternity, and not by forcing minorities to follow majoritarian principles, but by instilling a sense of shared belonging as well as reverence that transcends all other differences between people.

Dr Babasaheb Ambedkar’s clarity on the interconnection and non-negotiables of equality, liberty and fraternity remain a lesson for all. He famously said, “Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many.” And of fraternity he was clear, “This is fraternity, which is only another name for democracy. Democracy is not merely a form of Government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards fellowmen.”

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To Lord Ram, a letter of remorse and resolve

All religions gather for peace march in Malad-Malwani in Mumbai

Gujarat: Kajal Hindusthani arrested, sent to judicial custody, booked for delivering anti-Muslim hate speech

Moradabad Police debunks false communally charged claims made by Panchjanya, warns of taking legal action if misinformation is spread

Hindu Mahasabha Members Arrested for Allegedly Slaughtering Cow to Incite Communal Violence in Agra During Ram Navami Parade

Mumbai: Police foils attempts to disturb peace in Mira Road

 Iftar observed by students of all faiths; Muslim students break their fast while non-Muslim students serve food and beverages

The post Countering Hate with Positive Messaging, 15 banners grace Navi Mumbai streets asserting Sisterhood & Harmony appeared first on SabrangIndia.