In the ongoing case that will be heard tomorrow, Friday, May 24, (Association for Democratic Reforms v. Union of India [WP(C) 1382 of 2019]), while opposing the plea seeking public disclosure of the copies of Form 17C within 48 hours of the conclusion of polling. It is to be noted that Form 17 C contains the statutory record of votes polled in a polling station, the ECI has deliberately ignored Rule 93 of the Conduct of Elections Rules,  1961 that allow people to inspect and access copies of Form 17C.

Through this 66-page affidavit, the Constitutional authority has provided to the Supreme Court that there exists no legal mandate requiring the commission to disclose the final authenticated data of voter turnout in all polling stations and the same cannot be claimed as a legal right by anyone. 

“It is submitted that there is no legal mandate to provide the Form 17C to any person other than the candidate or his agent.” (Para 20)

The aforementioned affidavit was filed by the ECI in the Interlocutory Application moved by Association for Democratic Reforms (ADR) and Common Cause on May 17 in their 2019 Public Interest Litigation (PIL). The said 2019 PIL had also sought for investigation into alleged discrepancies on voter turnout data during the 2019 General elections. Through the said plea, the petitioners had sought for the court’s direction ECI to upload “scanned legible copies of Form 17C Part-I (Account of Votes Recorded)” of all polling stations immediately after the polls.

An urgent hearing had been granted by the Supreme Court on the same day itself. During the hearing, a bench led by Chief Justice of India (CJI) D Y Chandrachud, also comprising Justices J B Pardiwala and Manoj Misra, had asked the ECI to provide an answer as to why Form 17 C is not being uploaded and the reservation regarding the said disclosure. Notably, the counsel of the ECI had stated in the court that that “there is no difficulty in making the data of Form 17 C available, it just took time”.  

The bench had then asked the ECI to file a response to the above-mentioned IA. The hearing of the said matter will take place tomorrow i.e., on May 24. 

Highlights from the affidavit filed by the ECI:

Election process already going: In its affidavit, ECI begins opposing the petitioners’ plea by stating that out of a total of 7 election phases, 5 have already completed (as on May 20). The last two phases of polling are scheduled for May 25 and June 1, with the counting to take place on June 4.

On delays and discrepancy in data: The affidavit stated that the voter turnout data is released, on a voluntary basis, through the Voter Turnout App at 2-hour intervals on polling day. It has been claimed by the Commission that the non-statutory disclosure through the app comes with a disclaimer and is reflective of the data capture taking place through various non-statutory sources. 

“The facilitative framework had to balance between the speed of the disclosure to the public vis-à-vis a pin point accuracy, and, therefore, in time escalated ladder on the polling day, the broad trends were given the speed priority with clear disclaimers with regard to their accuracy and with the fact that they are liable to change.” (Para 26)

The affidavit adds that the disclosure on the app regarding the voter turnout is updated on percentage terms. With this, the affidavit provides an explanation on how voting continues till late evening while press releases are done on a specified timely basis. Based on the aforementioned process, explained in detail in the affidavit, the Commission denied there being any delay or discrepancy. 

“There is neither delay nor difference in percentages of voter turnout data, more than what is inbuilt into the process, scale and magnitude in play.” 

Rules governing elections do not allow disclosure to public: According to the affidavit, the ECI classified the Voter Turnout Disclosure into two categories – statutory (where Form 17C is given to polling agents), and non-statutory (where data is disclosed through ECI app, website and press releases). 

The ECI contends that as per the Conduct of Election Rules governing the voting process, Form 17C needs to be given only to the polling agent. It is the ECI’s case that the said Rules do not permit the giving of Form 17C to any other entity. General disclosure of Form 17C to public is not contemplated by the rules, and any attempt to demand to will create a situation where any person can demand the Form.

“The legal regime with regard to Form 17C is peculiar that while it authorizes the polling agent at the close of the poll to get a copy of Form 17C, a general disclosure of the nature as sought by the Petitioner is not provided in the statutory framework. The Rules do not permit giving of the copy of Form 17C to any other entity. The contention of the petitioner creates a situation where any member of the public or the elector at the Polling Station can demand a copy of Form 17C on the argument that it partakes into a character of a public document.” (Para 32)

It is also the poll agency’s case that under Article 329(b) of the Constitution, judicial interference in electoral process from the date of notification till declaration of results is barred.

“The purpose of Article 329(b) is to ensure that the election process remains consistent and is not interfered with while it is ongoing”. (Para 72)

Possibility of misuse of data: Opposing the uploading of the requested data on the voter turn, the ECI alleged that the indiscriminate disclosure of Form 17C data would increase the possibility of images being morphed, including counting results, which can create widespread public discomfort and mistrust in the electoral process.

“It is submitted that a wholesome disclosure of Form 17C is amenable to mischief and vitiation of entire electoral space. At the moment, the original Form 17C is only available in the Strong Room and a copy only with the polling agents whose signature it bears. Therefore, there is a one-to one relationship between each Form 17C and its possessor. It is submitted that indiscriminate disclosure, public posting on the website increases the possibility of the images being morphed, including the counting results which then can create widespread public discomfort and mistrust in the entire electoral processes.” (Para 36)

Legal remedies in variance of data: Referring to the point of legal remedies against variance in data, the ECI points out that candidates as well as voters can file an election petition under the Representation of the People Act if they have a cause of action relating to any variance in statutory forms. However, the same remedies cannot be demanded for on the basis of the turnout uploaded on the app. 

“However, no such consequence flows from a mismatch of information furnished in a voluntary non-statutory disclosure method such as that published in the Voter Turnout App“. (Para 40)

The issue of scanning: The affidavit also seeks to highlight certain logistical restrains that the Court needed to consider while hearing the said plea, which includes the most critical aspect of the location from which Form 17C should be scanned and uploaded.

“There are no scanners at the polling stations…If it is to be done centrally after aggregation by ARO or RO at Sub-Divisional or District head quarter, it violates the extant legal design of straight away keeping Form 17C in strong room after giving a copy to the agent of the candidate…there may be instances where the polling staff may not be so accustomed with technological aspects”. (Para 72)

According to the ECI, such logistical aspects will require advance planning and scheduling of training. The affidavit also mentions that if Form 17C data is made available on website, polling agents may not remain at polling stations towards the close of poll to sign Form 17C.

“The absence of signature of any polling agent on Form 17C may itself become a ground to challenge the veracity of the Form 17C and create further doubt and suspicion”. (Para 74)

Maintainability and intention of the petitioners: In the affidavit, the respondent (ECI) began with questioning the intention of the petitioners in the case. The ECI attacked ADR for misusing the process of law and filling multiple cases in the midst of elections, specifically pointing to the case of ADR vs ECI and Anr (EVM-VVPAT judgment), where the Supreme Court had dismissed the plea for 100% cross verification of Electronic Voting Machines (EVMs) data with Voter Verifiable Paper Audit Trail (VVPAT) records. With this, the ECI had, on the outset, urged the court of reject the IA on the issue of maintainability.  

“The practice of creating false narrative and creative suspicion in the minds of the voters becomes much more discernible by the simultaneous one-sided campaign undertaken on social media immediately after the court proceedings.” (Para iii)

The ECI also accused the petitioners of not approaching the Courts with clean hands using the said the forum of the Court with an agenda to perpetually keep creating doubt in the mind of voters based on conspiracy theory.

“There is a consistent malafide campaign/design/efforts to keep on raising suspicion and doubt in every possible manner and by misleading assertions and baseless allegations regarding the conduct of elections by the Election Commission of India … the design and pattern in play is to spread doubts and damage is done by the time the truth … comes out.” (Para iv)

Furthermore, the ECI claimed that the plea is not maintainable in view of the principle of res judicata, as the Court has already considered various aspects in relation to Section 49S and Form 17C in the EVM-VVPAT judgment, which “fully applies to the present writ petition“. 

The Commission also stated that disclosure of voter turnout data based on Form 17C will cause confusion among voters as it will also include postal ballot counts, and such chaos will them will be misused by those with motivated interests to case aspersion on the electoral process. 

“In any electoral contest, the margin of victory may be very close. In such cases, disclosure of Form 17C in public domain may cause confusion in the minds of the voters with regard to the total votes polled as the latter figure would include the number of votes polled as per Form 17C as well as the votes received through postal ballots. However, such difference may not be easily understood by the voters and may be used by persons with motivated interests to cast aspersion on the whole electoral process … cause chaos in the election machinery which is already in motion.” (Para 68)

The complete affidavit can be read here:

Details of the IA filed by ADR:

The said Interlocutory Application had been moved before the Supreme Court on May 10. In their plea, the petitioners have stated that in the ongoing Lok Sabha elections, the ECI published voter turnout data after several days. As per the details provided, the data regarding the first phase of polling held on April 19 was published after eleven days while the second phase of polling held on April 26 was published after four days. in addition to this, the petition highlights that there was a variation of over 5% in the final voter turnout data from the initial data released on the polling day.

The plea has pointed to the “inordinate” delay in the release of final voter turnout data. The same is coupled with the unusually high revision of over 5 per cent in the voter turnout, specified in the poll panel’s press note of April 30, 2024, which has raised concerns and public suspicion regarding the correctness of the said data. As specified in the plea, the non-release of the absolute number of votes polled coupled with the “unreasonable delay” in the release of votes polled data has led to apprehensions in the mind of the electorate about the sharp increase between initial data and data released on April 30. Thus, citing upholding of the democratic process of election as well as ensuring that electoral irregularities do not subvert the same, the present IA was moved before the Court.

Further details on the plea can be read here. 

What does the law actually say on Form 17C?

Form 17C is a crucial document that contains the account of the votes polled at a particular booth. 

Some of the important details recorded in Form 17C:

1. Total number of votes recorded as per voting machine at the Polling Station
2. Total number of electors assigned to the Polling Station
3. Total number of voters as entered in the Register for Voters  (Form 17A)
4. Number of voters not allowed to vote under rule 49M
5. Any discrepancy observed between different entries and their total

One of the most essential uses of Form 17C is that the same can used as a basis of a legal dispute related to the poll result. It is essential to note that a total of three copies of Form 17 C are prepared- one of which is given to the Candidate, the second one stays with the ECI and the third is kept within the EVM box. 

Rules and Guidelines regarding disclosure of Form 17C:

1. Section 49S. (2) of the Conduct of Elections Rules, 1961 states “The presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in Form 17C after obtaining a receipt from the said polling agent therefor and shall attest it as a true copy.” This clearly means that the data is already public.

Under the said Rule 49S and 56C, every Presiding Officer is also required to furnish to every polling agent present at the close of the poll, a true attested copy of the account of votes recorded as prepared by him/her in Form 17C, after obtaining a receipt from those polling agents. As such, the Presiding Officer should be asked to prepare such number of additional copies as the number of polling agents present in the polling station. Copies of the accounts should be furnished to every polling agent present even without the candidates asking for it. (Source: Handbook for Returning Officer 2023 – Para 13.49.1.)

1. In order to ensure that abovementioned requirements of Rule 49S regarding furnishing of copies of account of votes recorded by polling agents are fulfilled by the Presiding Officer, the Commission has devised a declaration (Annexure 51 Part-Il), which should be made by the Presiding Officer at the close of poll. (Source: Handbook for Returning Officer 2023 – Para 13.50.1.)
2. After the poll has been closed and the account of votes recorded in the voting machine has been prepared in Form 17C and copies thereof furnished to the polling agents present, EVM and VVPAT should be sealed and secured for transportation to the counting/collection centre. (Source: Handbook for Returning Officer 2023 – Para 13.51.1.)
3. Ensure that copies of Form 17C for parliamentary election are supplied to polling agents of the candidates in parliamentary constituency only and copies of Form 17C for the assembly election are given only to the agents of candidates of assembly constituency. (Source: Handbook for Returning Officer 2023 – Para 14.13.1 (xvii))
4. Question 16 in Annexure 28 in the ECI Handbook requires Micro Observer to answer “Yes” or “No” to the question “Whether copies of accounts of votes recorded in Form 17C have been given to the polling agents?” (Source: Handbook for Returning Officer 2023)

In addition to this, Rule 93 of Conduct of Elections Rules specifies the provisions related to the production and inspection of election papers. As per Clause 2 of the said Rule, subject to such conditions and to the payment of such fee as the Election Commission may direct, all other papers relating to the election shall be open to public inspection. This section essentially states that Form 17C can be made open for public inspection in accordance to the conditions and fee imposed by the ECI. 

Related:

Glaring Mismatches in EVM Numbers Aggravate Concerns on ECI’s Poll Management

How safe is my vote? A detailed look back at the EVM-VVPAT controversy in India

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

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

The post ECI’s questionable opposition to disclosure of Form 17C: No “legal mandate” to disclose data, disclosure may lead to mischief appeared first on SabrangIndia.

The High Court was hearing a writ petition filed by rights activist Shakir Tamboli wherein he had sought for judicial intervention to direct the state government “to take immediate action” against Pawaskar based on two FIRs filed against him. Urging for Pawaskar’s “prosecution and arrest”, the petitioner had also sought for the transfer of the probe in this case to a court-monitored special investigation team.

Brief of the September anti-Muslim attack:

In the month of September of 2023, anti-Muslim violence had taken place in the erstwhile quiet and harmonious Satara district of Maharashtra. On September 10, two posts/comments allegedly surfaced from the social media accounts of Altamash and Muzzamil Bagwan. While Muzzamil’s alleged post contained derogatory references to Shivaji, Altamash’s alleged comments contained derogatory comments about Sita. As both the aforementioned individual were by the police for investigation, on September 10 itself, a mob of approximately 200 to 250 people, some from neighbouring villages like Wadgaon gathered in Datta chowk at around 9.30pm. The mob was allegedly “enraged” by the alleged posts of Altamash and Muzammil. To showcase their “anger”, the said mob attacked shops owned by Muslims on their way from Datta chowk to the Jama Mosque. 

Details of the anti-Muslim riot that took place in Satara can be read here.

A report by theWire highlights that in reference to the case on the violence attack on a mosque, at least six independent witnesses have testified before a magistrate under section 164 of the Code of Criminal Procedure. These witnesses include those who had overheard Pawaskar and others at the conspiracy meeting and those attacked at the mosque have given elaborate details of Pawaskar’s direct involvement.

FIRs filed against Vikram Pawaskar:

As per the writ petition filed at the Bombay High Court, under Article 226 of the Constitution of India, the petitioners have shed light upon the two instances of hate speeches delivered by the BJP leader. As per the petition, on January 24, 2023, Pawaskar made a hate speech targeting the Muslim community and uttered derogatory words against the religious minority community. These speeches were made in front of an audience of 3000 to 3500. As per the submission made by the petitioner through the petition, the speeches of Pawaskar incited hate, enmity, and violence by using derogatory words against the Muslim community. It is pertinent here to highlight that the FIR filed at Vita Police Station in the case on May 11, 2023 records that Pavaskar repeatedly used the derogatory word “Landya (meaning circumcised)” while referring to the Muslim Community and gave calls to communal violence and killings of Muslims in his speeches. The said FIR booked Pawaskar under sections 153A, 295A and 34 of the IPC.

The writ petition also mentions another instance of hate speech that took place on June 2, 2023. As had been reported by Sabrang India, on June 2, a gathering was arranged by Shiv Pratisthan Hindustan in Islampur. During this event, in the presence of police officers, Pawaskar made an incendiary speech that had anti-Muslim sentiments. He mentioned historical figures such as Tipu Sultan, and made derogatory comments about their lineage. Additionally, he also made remarks about the so-called bogey of “love jihad” as he called for unity among Hindus and also asserted that India should become a Hindu Rashtra. An FIR against the said hate speech delivered by Pawaskar was registered at the Ialampur Police stated under sections 153A, 295A and 298 of the IPC.It is essential to highlight here that in regards to the hate speech delivered by Pawaskar in June,

A detailed report of the hate speeches along with the videos of the same can be accessed here.

The proceedings before the court:

Petitioners: Senior counsel Mihir Desai and advocate Lara Jesani represented Tamboli in the court. During the hearing on February 9, it was submitted by the counsels that the police took no immediate steps to arrest Pawaskar despite two separate incidents of alleged hate speeches having been delivered by him in Sangli’s Vita (January 24) and Islampur (June 2). It was also highlighted by the counsels that the police had video graphed the event and had also registered an FIR against him.

State: The state government, represented through public prosecutor Hiten Venegaonkar, had submitted one affidavit in the High Court regarding the Satara case, granting clean chit to Pawaskar in the case. It is essential to highlight here that in the said Satara case, in the initial FIR filed by the Satara police on September 11, 2023, a total of 28 accused had been named. In the Supplementary statement recorded by the Satara Police on September 13, 2023, in which they had cited a complainant who had stated that a meeting had been held by BJP leader Pawaskar on August 21. The said meeting had been organised at the house of another accused, Sangram Dadaso Mali, in Karad, 28 kms from Pusesavali. The same is important to note as at least 27 of those accused of rioting on September 10 were present for this particular meeting as per the petition. As per the petition, the supplementary statement provides that Pawaskar directed those in the meeting to target Muslims and planned an attack to damage vehicles and property, cause communal violence and lynching. Notably, the police had added Section 120B of the Indian Penal Code after the statement related to Pawaskar was added in the FIR. However, Pawaskar’s name could not be found in the final chargesheet or in the list of accused. 

Notably, the aforementioned affidavit granting clean chit to Pawaskar had been filed in response to the observations made by a division bench of justices Manjusha Deshpande and Revati Mohite Dere during the last hearing of the case. On January 24, the judges had taken note of the seriousness of the charges levelled by the petitioner against the police and Pawaskar, had asked the police to file an affidavit in the court stating the reason behind lack of initiation of action against Pawaskar.

To read the details of the January 24 hearing, click here.

As per a report of times of India, the police had also sought time to file another on the Sangli cases. The arguments raised by the State emphasised that the police were following the necessary process in taking action.

Intervention: Advocate Abhinav Chandrachud, representing BJP leader Pawaskar, also sought to intervene in the case stating that the demands made through the said plea affected his client’s rights and thus he was required to be made a party to the said petition. The request to intervene by Advocate Chandrachud was not considered by the High Court as no written application for intervention had been submitted in the court. 

Observations made by the Court:

Notably, as per the report of the TOI, when the bench raised questions to the prosecution on their lack of action against Pawaskar, the counsel representing the state informed the court that the police were waiting for a forensic report of the videography done at the event. Reacting to the same, the bench expressed surprise over the need for a forensic examination of the video that the police had themselves recorded.

The court asked the state several questions on its inaction regarding the two FIRs in Sangli. 

Based on the arguments raised by the petitioners, the Bombay HC bench division bench pointed towards the inadequacy of the state government in taking required action against the petition seeking the arrest of BJP leader Vikram Pawaskar for his alleged role. 

The next hearing of the case will take place on March 5. 

Related:

Hate Offender: BJP state VP, Vikram Pawaskar uses abuse and intimidation against Satara’s Muslims, wants “Hindu Rashtra”

Muslims, victims of targeted violence in Pusesavali, Satara: Fact-finding report

Pay compensation to Nurul Hasan Shikalgar’s family, order independent judicial inquiry: Satara Citizens to Maharashtra Govt

File a criminal case against Vikram Pavaskar, Shiv Pratisthan Hindustan demand citizens and social organisations

The post Bombay HC: Maha govt to place affidavit on steps taken in cases of hate speech, reason for inadequacy in action on BJP leader for alleged role in mosque attack, hate speech appeared first on SabrangIndia.

Dissatisfied with the affidavit filed by Delhi Police with respect to the speeches made by Sudarshan News TV Editor Suresh Chavhanke at the Delhi Dharam Sansad, the Supreme Court, on April 22, 2022 directed them to file a ‘better affidavit’ by May 4, 2022.

Chavhanke had made communal statements at the Hindu Yuva Vahini event in December 2021. But the affidavit by the police stated that no anti-Muslim hate speech was made by the Editor. Police claim that they conducted an ‘in-depth investigation’ into the video clips of the speeches and found no words were used against any particular community. This despite multiple media reports of pernicious calls for genocide being made against the minority community.

According to LiveLaw, the bench comprising Justices AM Khanwilkar and Abhay S Oka asked, “The affidavit has been filed by Deputy Commissioner of Police. We hope he has understood the nuances. Has he merely reproduced the inquiry report or applied his mind? Is it your stand as well or the reproduction of inquiry report of Sub inspector level?”

Senior Advocate Kapil Sibal, appearing for the petitioners argued that the Delhi Police have justified the speech calling to ‘kill’ the minorities as they see it to be for protection of community ethics. Sibal reportedly stated, “They say that they are ready to kill. The police say this is to protect the ethics of the community. Your lordships may have to decide constitutionally what the ethics are.”

In view of this, the Bench suggested Additional Solicitor General KM Nataraj, appearing for the Delhi Police, to have a re-look at the affidavit. Accordingly, ASG agreed to relook and file a fresh affidavit.

While the matter has been listed for May 9, the Court has directed the Delhi Police to file a better affidavit by May 4.

A PIL was filed by former Patna High Court judge Anjana Prakash and journalist Qurban Ali seeking criminal action against the alleged anti-Muslim hate speeches made at the ‘Dharam Sansad’ in Haridwar and Delhi. One of the main contentions raised before the bench was that the Uttarakhand Police have not made any arrests in the case and the Delhi Police have not even registered an FIR.

The petition sought directions to the police authorities to comply with the guidelines laid down by it in Tehseen Poonawalla v. Union of India (2018) 9 SCC 501 and to consequently define the contours of ‘duty of care in investigation’ to be undertaken by the police authorities, reported LiveLaw.

The plea highlighted that no substantive action has been taken by either Uttarakhand or Delhi Police in the matter. While the former had registered FIRs and not arrested a single accused, the latter had not even registered an FIR. Further, the FIRs lodged missed out on invoking important offences like section 120B (criminal conspiracy), 121A (conspiracy to wage war against Government of India) and 153B (Imputations, assertions prejudicial to national-integration) of the IPC.

In their affidavit the Police said, “After a deep inquiry and evaluation of the contents of the video, the police did not find any substance in the videos as per the allegations levelled by the complainants. In the video clip of the Delhi incident, there is no utterance against any particular community. Hence, after inquiry and after evaluation of the alleged video clip, it was concluded that the alleged hate speech did not disclose any hate words against a particular community as alleged.”

Dharam Sansad in Haridwar and Himachal Pradesh

On April 13, 2022, the Court had directed the Uttarakhand government on April 13, 2022, to file a status report on the progress of investigations with respect to the hate speeches made in Haridwar.

Today, the Counsel appearing for Uttarakhand Government informed the Court that the investigation was completed and chargesheets have been filed accordingly. The Counsel further went on to raise an objection regarding the locus standi of the petitioner to which the Court replied, “We have read it everywhere.”

With respect to the Dharam Sansad event in Himachal Pradesh, Sibal submitted that the petitioners have filed a fresh interlocutory application in view of some scandalous things said at the event but the bench posted the application to April 26, 2022 since the cause list did not notify the appearance of the Counsel of the State of Himachal Pradesh.

Related:

SC issues notice in plea urging criminal prosecution in Dharam Sansad case
SC to hear plea seeking SIT probe in ‘Dharam Sansad’ due to lack of substantive police inquiry
Will Uttarakhand allow yet another anti-Muslim Dharam Sansad to be held at Roorkee?
Supreme Court directs Uttarakhand Govt to file status report on FIRs in ‘Dharam Sansad’ meet

The post SC rejects Delhi Police affidavit that claimed no hate speech was made at Delhi Dharam Sansad appeared first on SabrangIndia.

The Bombay High Court (Aurangabad Bench) pulled up the Modi Government for defending defective ventilator manufacturer, Jyoti CNC, and for claiming that the doctors and paramedics are not properly trained to operate them.

According to a LiveLaw report, Justices Ravindra Ghuge and BU Debadwar said that the Secretary, Ministry of Health and Family Welfare, G.K. Pillai, who filed the affidavit, should have avoided playing the “blame game” and shown sensitivity towards Covid-19 patients.

During the last hearing on May 25, the Bench had observed, “We find a serious issue before us as regards the defective functioning of the ventilators. Except the 37 ventilators which are yet to be un-boxed, 113 ventilators put to use are found to be defective…We find the above situation as regards the dysfunctional ventilators supplied through the PM Cares Fund, to be quite serious. We, therefore, call upon the learned ASGI to state, as to what action would the Union of India initiate in these circumstances.”

Today, the Central Government reportedly submitted that the 150 ventilators in question were supplied through “Make-in-India and not through the PMCARES Fund.” To this, the court remarked, “We would have appreciated, had that affiant (author of the affidavit) avoided entering into a blame game and would have shown sensitivity towards the patients, it being the paramount object of a welfare state to take care of the health of its citizens.”

The Division Bench further asked the Health Ministry to respect the reports from medical experts, which claimed the ventilators were defective, and concentrate on rectifying it. LiveLaw quoted it saying, “We will also appreciate if the MOHFW refrains from questioning the reports of medical experts and respect such reports in the larger interest of society, rectifying the said machines. We are unable to accept the contentions of the ASGI that the ventilators are in perfect operating conditions, and it is the hospitals who do not have trained personnel to operate them properly. The affidavit before us has a semblance of virtually defending the manufacturer and declaring the ventilators are in immaculate condition.”

Further slamming the Centre’s affidavit, the Bench opined, “We find such statements to be demonstrating insensitivity on the part of MOHFW. Instead of expressing wholehearted support to ensure that such machines are put to optimum utilization in the interest of the lives of the patients, it appears that the affiant found it advantageous to contend that there is no merit in the report of the dean of the Government Medical College (GMCH)”.

The Bench then asked the Additional Solicitor General of India, Ajay Talhar, to take further instructions on a fresh report submitted by the GMCH. The report listed reasons to conclude that the ventilators are unsafe for patient’s use, and it was decided not to test any of these machines on patients.

The Additional Solicitor General then apprised the Aurangabad Bench that the Central government would take remedial steps and ensure the ventilators would operate adequately and all defects, if any, would be removed. The matter will be heard on June 2, 2021.

On May 25, the court had also taken note of some news reports where politicians started visiting Hospitals to find out about the ventilators and some, without having the expertise, just declared that all the ventilators are in good working conditions. Some also said that the ventilators have been lying idle, so they have become dysfunctional.

The court had taken a dim view of this and said, “We express our displeasure as regards such indulgence by the people’s representatives. This is likely to cause more botheration to the medical faculty than render any assistance. Contrary statements are being issued by the politicians which we find distasteful as some politicians have visited the hospital, posing as if they have the knowledge and the expertise to inspect the ventilators and recommend correctional steps. We would appreciate it if political colour is not attached to this issue of dysfunctional ventilators.”

The order dated May 25 may be read here: 

The order may be read here:

Related:

Activist moves SC to include PM CARES Fund as respondent in Covid case
Is the PMCARES Fund using the national emblem illegally?
Plea in Bombay HC seeks CAG audit of PM CARES fund
SC dismisses plea seeking transfer of funds from PM CARES to NDRF

The post Bombay HC slams Centre’s affidavit defending faulty PMCARES Fund ventilators appeared first on SabrangIndia.

24-year-old Faizan became a household name after a video of him being forced to sing the national anthem even as he lay injured and writhing in agony on the ground went viral on social media during the February 2020 North east Delhi violence. The young man and his friends had been beaten brutally, and a few days later Faizan succumbed to his injuries.

In a plea seeking a court-monitored Special Investigation Team probe into his death, the Delhi High Court has asked the Delhi police to file an affidavit regarding the preservation of documents and working of the CCTV cameras at the police station.

Justice Yogesh Khanna said: “….with regard to direction to respondent No.3 to file an affidavit supporting all the relevant material regarding functioning of CCTV cameras of Police Station Jyoti Nagar and in particular on February 24, 2020 and February 25, 2020, let an affidavit be filed qua the functioning of said CCTV cameras along with material evidence qua its non-functioning on specific days or month, be filed before the next date of hearing with an advance copy to learned counsel for the petitioner.”

The Single-judge Bench also directed that if the CCTV cameras were not functioning, documents supporting that fact had to be produced in court. According to LiveLaw, the petitioner Kismatun’s (Faizan’s mother) advocates, Vrinda Grover and Soutik Banerjee, had earlier told the Court that the police have claimed that the CCTV cameras of the police station were not working on the relevant date.

According to the Indian Express, the police have filed a status report in the court stating that they are still trying to ascertain the identity of officers seen in the viral video and that only one policeman has been “pinpointed on probable basis”.

The video was shared over social media and WhatsApp when the incident first came to light on February 25, during the communal violence of Northeast Delhi. The video showed the three men, writhing in pain on the ground surrounded by a group of Delhi police personnel, who stood by, purportedly taunting and ordering them to sing the national anthem, and also Vande Mataram, occasionally, hitting them with their lathis.

Faizan, who was a resident of Kardam Puri, succumbed to his injuries at LNJP Hospital. Dr Kishore Singh, medical director of the hospital, had been quoted by the Indian Express, “He was admitted to the neurosurgery ward on February 25 and died three days later. He had suffered gunshot wounds and was critical.”

The matter will be heard on March 15, 2021.

The order may be read here: 

Related:

Northeast Delhi violence: Policeman from ‘national anthem’ video questioned

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Sudarshan News filed another affidavit in the Supreme Court ahead of its hearing on September 21 in a petition filed against it for airing a show that is allegedly communally inflammatory and as the bench termed it at the last hearing, “insidious”.

The affidavit has been filed by the Editor-in-Chief of the channel, Suresh Chavhanke, and he has brought to the notice of the court a show that was telecasted on NDTV news channel in September 2008 titled “Hindu Terror Myth or Fact?” whereby a “Hindu saint was shown with tilak and chillam and also a trishul (one of the most sacred symbols for Hindus and associated with most revered deity of the Hindus, Lord Shiva”.

The affidavit further points to NDTV’s show of August 2010 titled “Is Saffron Terror Real?” anchored by Barkha Dutt whereby a Hindu cultural gathering was shown in saffron colour clothes.

In the affidavit, Chavhanke has also undertaken to abide and comply with the programme code and the directions of the Union Ministry of Information and Broadcasting.

Making these instances grounds, the affidavit pleads that the stay imposed on the broadcast of the rest of the shows in the series titled “Naukarshahi me Muslamano ki Ghuspaith ke shadyantra ka bada khulasa” (The conspiracy behind Muslim infiltration in UPSC – The Big Reveal). The show was first aired on September 11 and was aired until September 14, when the apex court imposed the injunction.

Chavhanke even defended the use of the term “UPSC Jihad” stating that since it was alleging that Zakat foundation was receiving funds from terror-linked organizations, this term was being used.

Senior Advocate appearing for Sudarshan News, at the last hearing, assured the court that a clear affidavit will be filed on stereotypes having a tendency to be perceived as hate speech.

The hearing is likely to continue today, at 2 P.M.

Background

On August 28, the apex court refused to issue an injunction on the basis of an “unverified transcript of a 49 second clip” which was the promotional video of the show titled “Bindaas Bol”. The court had still noted that expression of views derogatory to a particular community had a “divisive potential” and that the petition had raised significant issues bearing on the protection of constitutional rights.

However, on the same day, Delhi High Court had granted stay on the broadcast of the show with directions to the Centre to make a decision in this regard. The Ministry of Information and Broadcasting issued an order on September 9 allowing the broadcast of the show and from September 11 onwards, the show called “Bindaas Bol” was telecast on Sudarshan News. 

An intervention application has also been filed by 7 retired civil servants urging the court to give an authoritative meaning to “hate speech” so that the authorities implementing it receive clarity on what speech comes within its ambit. “The interpretative task before this Hon’ble Court therefore is to distinguish between speech that is merely offensive, indecorous or in bad taste [and therefore covered by Article 19(1)(a)] and hate speech that is rightly penalised by Articles 153A & B and the other provisions pointed out above,” the plea read. 

This “UPSC Jihad” series has been running since September 11 and was slated to continue until September 20. However, with the Supreme Court order restraining broadcast, September 14 happens to be the last telecast of the show.

During the hearing of September 18, the bench, comprising  Justices DY Chandrachud, Indu Malhotra and KM Joseph stated that the show was presented in an “inciteful manner”.

CJP’s complaint against Sudarshan News

CJP was the first organisation to act when we filed a complaint with the News Broadcasting Standards Authority (NBSA) when the promotional video for the show Bindass Bol had first emerged. CJP complained against the deeply communal content of the promotional video of the show on ‘UPSC Jihad’, where the channel’s Editor-in-Chief Suresh Chavhanke alleged a conspiracy by Muslims to take over civil services in India. But NBSA forwarded our complaint to the Ministry of Information and Broadcasting stating that since Sudarshan News was not a part of the News Broadcasters Association (NBA) the NBSA could not take action against it. 

Related:

Sudarshan News defends show calling it investigative journalism; Centre says regulate digital media first
Come back to us on a method to strengthen NBA : SC in Sudarshan News case
SC restrains Sudarshan News from telecasting “UPSC Jihad” show, calls it ‘insidious’

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In the latest instance of the media’s self-censorship in these times of the BJP/RSS, news about the dramatically increasing assets of BJP President Amit Shah and the diminishing educational status of Union Minister, Smriti Irani, was posted on the websites of Times of India, Economic Times, Navbharat Times and DNA on Saturday but they mysteriously disappeared within hours.

The original report, published under the joint bylines of Himanshu Kaushik and Kapil Dave in the Ahmedabad edition of the Times of India, was based on the affidavits submitted by Shah and Irani while filing their nominations to the Rajya Sabha from Gujarat.

According to the news report, “Shah’s movable and immovable (including his wife’s) assets which were worth Rs 8.54 crore in 2012 are now worth Rs 34.31 crore.” This amounts to a sharp increase of 300% in 5 years.

The reports pulled down by the websites had also said, “the movable and immovable (including her husband’s) properties of Smiti Irani in 2014 were worth Rs 4.91 crore but the value of her self-declared assets increased to Rs 8.88 crore, an 80 per cent increase during the same period.”

More interestingly in her case as pointed out by the National Herald, “the report also revealed that Smriti Irani for the first time appeared to have acknowledged that her sworn affidavit in 2004 about her educational qualification was false. While unsuccessfully contesting for the Lok Sabha in 2004, she had claimed to have done her B.A. in 1996 from Delhi University. But when she filed her nomination for the Rajya Sabha in 2012, she claimed that she had done her B.Com part-I in 1994”.

In her 2014 election affidavit for the Lok Sabha seat, when she contested against Congress leader Rahul Gandhi at Amethi, she had entered, under the education qualifications column, ‘B. Com. Part 1, School of Correspondence, Delhi University, 1994’.

Furnishing wrong information in an affidavit is an offense under the law. A petition is already pending in the court against Irani who currently is in-charge of ministry of Information & Broadcasting as also Textiles. The moot point is: If she has now set the record straight on her educational status, it still leaves the issue of her having provided different information at different times in different affidavits.

The affidavits filed by Shah and Irani have yet to be posted on the official website of the Gujarat Election Commission.

The question being asked in political and media circles is about the mystery surrounding the pulling out of these stories from the websites of both the Times group and the DNA. Attempts by correspondents from The Wire to speak to the editorial and the top managerial team drew a blank. The fact that the stories were simultaneously pulled down from the websites of two different publications lends credence to the suspicion that this was prompted by someone outside the publications.

Even though the original links of the stories still show up in Google search, upon clicking the link, one comes across error reports suggesting that the story pages have been taken down without any explanation. A click on the original link to the TOI report says: “We’re sorry, we seem to have lost this page, but we don’t want to lose you.” Similarly, the DNA page denies access, saying that: “you’re not authorised to access this page.” But one can still access the report in DNA’s e-paper which is available on its website.

As observed by the National Herald, “this has further cemented public perception about Modi government’s control over mainstream media and its double talk over propriety, transparency and accountability in public life. On twitter, hashtags like #ShahControlsMedia have been dominating the trend with many heaving a sigh of relief that ‘only stories had disappeared online and not the journalists who reported them’.”

Here below are a few examples of responses to the mystery of the stories that suddenly went missing.

The post Media’s self-censorship: Times group, DNA publish, then pull out news about Amit Shah’s escalating assets, Smriti Irani’s diminishing educational status appeared first on SabrangIndia.

Image credit: Ummid.com

The All India Muslim Personal Law Board (AIMPLB) has filed a fresh affidavit in the Supreme Court on Monday promising it will issue advisories to qazis across the country asking them to counsel the bridegroom and the bride on the “undesirable triple talaq” practice.

The marital couple will be advised to use a nikahnama (marriage certificate format) which has a clause barring the husband from instantaneously divorcing his wife by resorting to the currently prevalent triple talaq (“talaq, talaq, talaq”) practice, whether orally or through SMS, Whatsapp messages etc.

The affidavit also said it has already urged Muslims across India to socially boycott men who divorce their wives at one go “so that such incidents are minimised”.

"At the time of performing 'Nikah', the person performing the 'Nikah' will advise the bridegroom/man that in case of differences leading to talaq the bridegroom/man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat," read the affidavit filed by AIMPLB secretary Mohammad Fazlurrahim.
 
"At the time of performing 'Nikah', the person performing the 'Nikah' will advise both the bridegroom/man and the bride/woman to incorporate a condition in the 'Nikahnama' to exclude resorting to pronouncement of three divorces by her husband in one sitting," the affidavit added.

Muslim women and men who have been demanding that triple talaq (along with nikaah halala and polygamy) be banned are skeptical about who will ensure, and how, that only nikahnamas barring triple talaq practice will be used, or how social boycott will be imposed.

The AIMPLB has maintained throughout that triple talaq practice is bad in theology but good in law. The latest affidavit is being seen as an attempt to ensure that the practice is not declared unconstitutional.

It may be recalled that after a week-long hearing of a clutch of petitions on the issue of triple talaq, a constitution bench on May 18 has reserved its judgment.  

The Modi government has told the Supreme Court that it was ready to bring in legislation governing Muslim marriage and divorce if it declares the triple talaq practice as unconstitutional.
 

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