A total of three judgments were delivered upon the said case, with CJI Chandrachud authoring his judgment, Justice Surya Kant authoring the second concurring judgment for himself as well as on behalf of Justices Misra and MM Sundresh. Justice Pardiwala gave a dissenting judgment to hold Section 6A as unconstitutional.

It is essential to note that Section 6A allows foreign migrants of Indian origin, who arrived in Assam between January 1, 1966, and March 25, 1971, to apply for Indian citizenship. Indigenous groups in Assam have contested this section, arguing that it effectively legalises the illegal entry of migrants, particularly from Bangladesh, into the state. 

The court reserved its judgment on December 12, 2023, after hearing submissions over four days from key legal representatives, including Attorney General R Venkataramani, Solicitor General Tushar Mehta, and senior advocates Shyam Divan and Kapil Sibal. 

Section 6A and the Assam Accord: Central to the case

Section 6A was introduced into the Citizenship Act in 1985 as a special provision arising from the Assam Accord—a tripartite agreement signed between the central government under former Prime Minister Rajiv Gandhi, the Assam government, and the All Assam Students Union (AASU). This agreement sought to address the issue of illegal immigration in Assam and preserve the cultural and linguistic identity of the Assamese people.

According to the provision, migrants from Bangladesh and other specified territories who entered Assam between January 1, 1966, and March 25, 1971, were eligible to register for Indian citizenship under Section 18. The Accord fixed March 25, 1971, as the cut-off date for citizenship, in line with the culmination of the Assam agitation, which aimed to identify and deport illegal immigrants. The Supreme Court will now decide whether this provision stands in violation of the Indian Constitution, following a challenge by multiple petitioners. Chander Uday Singh appeared for Citizens for Justice & Peace (CJP) who had also intervened in the matter.

Brief of the three judgments delivered (based on the pronouncements)

Key observations in CJI DY Chandrachud’s opinion on Section 6A: In his judgment, Chief Justice DY Chandrachud noted that the Assam Accord was a political solution to address the issue of illegal migration, while Section 6A of the Citizenship Act was its legislative counterpart. His opinion upheld the constitutionality of Section 6A, stating that Parliament had the legislative authority to enact this provision. The judgment emphasised that Section 6A was created to balance humanitarian concerns with the need to protect Assam’s local population from the effects of illegal immigration.

The Court also justified Assam being singled out from other states sharing borders with Bangladesh. It reasoned that the proportion of immigrants to the local population in Assam was significantly higher compared to other border states. For instance, while West Bengal had 57 lakh migrants, Assam had 40 lakhs, but the impact in Assam was more profound due to its smaller geographical area. Thus, the influx of migrants posed a much greater challenge to Assam’s demographic balance.

CJI Chandrachud stated during the pronouncement that “The magnitude of influx of migrants in Assam is 40 Lakhs which is higher in Assam as compared to other states considering the smaller land size.”

Furthermore, CJI Chandrachud’s judgment affirmed that the cut-off date of March 25, 1971, was reasonable, as it coincided with the end of the Bangladesh Liberation War. The objective of the provision, according to the court, must be viewed in the context of that war. The Court concluded that Section 6A was neither “over-inclusive nor under-inclusive” in its scope and application.

According to LiveLaw, CJI Chandrachud stated “The objective of the provision (S.6A) must be understood in the backdrop of the Post-Bangladesh War.”

CJI Chandrachud also addressed concerns related to Article 29(1) of the Constitution, which protects the rights of citizens to preserve their linguistic and cultural heritage. He clarified that the mere presence of diverse ethnic groups in Assam did not automatically infringe upon the rights of the indigenous population. Petitioners, he said, needed to demonstrate that the existence of another ethnic group directly hindered the ability of the local population to safeguard its language and culture.

Justice Surya Kant’s perspective on Section 6A and Fraternity: Justice Surya Kant, in his judgment on Section 6A of the Citizenship Act, provided a distinct view, particularly addressing the argument that the provision violated the principle of fraternity enshrined in the Preamble to the Constitution. The petitioners had argued that the influx of migrants allowed citizenship under Section 6A undermined the bond of fraternity among Indian citizens, especially within Assam’s indigenous communities. They contended that the demographic shifts resulting from this provision threatened the social harmony of the state. Justice Surya Kant firmly rejected this argument. 

He clarified that the concept of fraternity cannot be understood in such a narrow, exclusionary sense. According to him, fraternity does not imply that individuals or communities should have the right to determine who their neighbours or fellow citizens should be. The principle, he explained, is about promoting a sense of brotherhood and unity among citizens, irrespective of ethnic or cultural backgrounds.

During the pronouncement, Justice Kant said “We have formed the questions like if Section 6A suffers from manifest arbitrariness, is against the principle of fraternity, causes external aggression or internal disturbances etc and if so, how can the 2 legislations be read harmoniously. Our conclusion is that petitioners want to control and choose the meaning of Fraternity and who become their neighbours.”

In his judgment on Section 6A of the Citizenship Act, Justice Surya Kant upheld the provision, affirming that the Parliament had the legislative competence to lay down the conditions under Section 6A. He emphasised that this legislative measure, stemming from the Assam Accord, was a rational solution designed to address the complex issue of illegal immigration into Assam. 

As per LiveLaw, Justice Kant stated “Parliament had legislative powers to lay down the conditions under S.6A and that cannot be controlled.”

Justice Kant rejected the petitioners’ arguments against the provision, particularly their claim of manifest arbitrariness regarding the cut-off date of March 25, 1971. He stated that the cut-off date was a policy decision by the legislature, not arbitrary, and could not be judicially reviewed.

Justice Kant provided “that argument of manifest arbitrariness on the basis of the cut-off date is not accepted by us, it is upon the policy of the legislature. Section 6A does not operate perpetually, cannot suffer from manifest arbitrariness.”

Justice Kant also dismissed the argument that Section 6A contradicted Section 9 of the Citizenship Act. Notably, Section 9 of the Citizenship Act, 1955 deals with the termination of citizenship in cases where an Indian citizen acquires citizenship of another country. Through his judgment, Justice Kant clarified that both provisions could coexist and should be read harmoniously. In doing so, he also noted that Section 6A does not perpetually confer citizenship and must be enforced under specific conditions, while immigrants entering after the 25th of March, 1971, cannot be conferred citizenship.

He further addressed the term “ordinary resident,” noting that while the authorities might interpret it in legal terms, for many affected individuals, the expression might be too vague and hard to understand. This complexity, however, did not render the provision unconstitutional.

On the question of whether Section 6A violated the fraternity principle enshrined in the Preamble of the Indian Constitution, Justice Surya Kant rejected the petitioners’ contention. He observed that fraternity cannot be understood in a narrow sense, where one has the right to choose their neighbours. Fraternity, in his view, does not imply exclusion or the right to block certain groups from citizenship based on ethnic or cultural concerns.

Justice Kant also noted that despite the petitioners’ claims, they failed to demonstrate any constitutional impact on their communities due to Section 6A. Therefore, the challenges based on Articles 21 and 29 (which protect the right to life and the right to conserve language and culture) were not substantiated.

Justice Kant stated “the petitioners have not been able to show a constitutional impact on their communities. The challenge on grounds of Article 21 and 29 are thus closed.”

Finally, Justice Kant emphasised that the Foreigners Tribunals should be used to determine the status of suspected illegal immigrants in Assam and stated that the Foreigners Act and related provisions should be read in harmony with Section 6A to ensure proper detection of foreigners. 

However, he also criticised the inadequate enforcement of Section 6A, which had led to widespread injustice in Assam.

Justice Surya Kant also said that “There is inadequate enforcement of the same (Section 6A) leading to widespread injustice. The citizenship can be given between the cut off dates subject to fulfilling the conditions, the immigrants who enter after 25 March 1971 cannot be conferred citizenship.”

To understand the verdict of the four judges (CJI DY Chandrachud, Justice Surya Kant, MM Sudaresh, Manok Misra), it is crucial to look at the Conclusions and Directions at Para 387 of the Judgement authored by Justice Surya Kant:

A. Conclusions and Directions

387. Drawing upon the comprehensive analysis presented in the preceding sections, we thus hold that Section 6A falls within the bounds of the Constitution and does not contravene the foundational principles of fraternity, nor does it infringe upon Articles 6 and 7, Article 9, Article 14, Article 21, Article 29, Article 326, or Article 355 of the Constitution of India. Furthermore, Section 6A does not clash with the IEAA or established principles of international law. Hence, the constitutional validity of Section 6A, as contested before us, is resolved accordingly.
388. Nevertheless, it is imperative to acknowledge and address the valid concerns raised by the Petitioners regarding the persistent immigration in the State of Assam post 25.03.1971. Although Section 6A conferred citizenship rights exclusively to immigrants arriving before this cut-off date, there seems to still be an ongoing influx of migrants through various border States of India. Due to porous borders and incomplete fencing, this unceasing migration imposes a significant challenge.
389. On account of these concerns, we passed an order on 07.12.2023 and directed the Respondent Union of India to provide data, inter alia, the estimated inflow of illegal migrants into India after 25.03.1971, the number of cases presently pending before the Foreigner Tribunals for such immigrants and the extent to which border fencing has been carried out.
390. Regarding the inquiry into the estimated influx of illegal migrants post 25.03.1971, the Union of India was unable to provide precise figures due to the clandestine nature of such inflows. This underscores the necessity for more robust policy measures to curb illicit movements and enhance border regulation. Additionally, it was disclosed that approximately 97,714 cases are pending before the Foreigner Tribunals, and nearly 850 kilometres of border remain unfenced or inadequately monitored.
391. We hold that while the statutory scheme of Section 6A is constitutionally valid, there is inadequate enforcement of the same—leading to the possibility of widespread injustice. Further, the intention of Section 6A, i.e., to restrict illegal immigration post- 1971 has also not been given proper effect. Accordingly, we deem it fit to issue following directions:

1. In view of the conclusion drawn in paragraph 387, it is held that Section 6A of the Citizenship Act, 1955 falls within the bounds of the Constitution and is a valid piece of legislation;
2. As a necessary corollary thereto, (i) immigrants who entered the State of Assam prior to 1966 are deemed citizens; (ii) immigrants who entered between the cut off dates of 01.01.1966 and 25.03.1971 can seek citizenship subject to the eligibility conditions prescribed in Section 6A (3); and (iii) immigrants who entered the State of Assam on or after 25.03.1971 are not entitled to the protection conferred vide Section 6A and consequently, they are declared to be illegal immigrants. Accordingly, Section 6A has become redundant qua those immigrants who have entered the State of Assam on or after 25.03.1971;
3. The directions issued in Sarbananda Sonowal (supra) are required to be given effect to for the purpose of deporting the illegal immigrants falling in the category of direction (b) (iii) above;
4. The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants;
5. The statutory machinery and Tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam are inadequate and not proportionate to the requirement of giving time-bound effect to the legislative object of  Section  6A  read  with  the  Immigrants  (Expulsion  from Assam) Act, 1950, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967; and
6. The implementation of immigration and citizenship legislations cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court.392. For this purpose, let this matter be placed before Hon’ble the Chief Justice of India for constituting a bench to monitor the implementation of the directions issued hereinabove.” 

Dissenting opinion of Justice Pardiwala focusing on cultural preservation in Assam: Justice Pardiwala’s dissenting opinion highlighted two primary purposes of Section 6A— to adopt a humanitarian approach for the people of Assam while simultaneously protecting the region’s culture. He emphasised the importance of considering the intentions of the parties involved when the Assam Accord was signed.

Justice Pardiwala stated that “Whether the afflux of time has bended the Section 6A, my line of reasoning is that piece of legislation may be valid at the time of enactment but by afflux of time, it has become temporarily flawed”

Furthermore, he provided that “the S.6A had two purposes – adopting a humanitarian approach for people of Assam and on the other hand protecting the culture of the Assam. I am of the view that intention of the parties must be kept in mind when they signed the Accord.”

Justice Pardiwala noted that there was no provision requiring voluntary declarations or a clear detection process. He elaborated on the workings of the Foreigners Tribunals, stating that the onus of proof lies with those suspected of being foreigners, specifically individuals identified as citizens between 1966 and 1971. He found it illogical for these individuals to wait for identification and argued that there was no valid reason preventing them from initiating the relevant provisions themselves. On the issue of temporal reasonableness, he criticised the lack of a time limit for Tribunals to complete their detection processes, suggesting that this could lead to adverse consequences for the state and leave citizens from the 1966-71 period in a state of limbo.

According to LiveLaw, Justice Pardiwala stated that “The onus is on the suspected foreigner person detected as citizen from 1966-71. It appears to me illogical that the person has to await identification, there is no plausible reason why he shouldn’t put into motion the provision. The clock only starts to tick once only detection is made by Tribunal and there is not period of time when the detection be completed by the Tribunal.”

He pointed out that Section 6A (3) was meant to serve the spirit of the Assam Accord but argued that its practical implementation countered this purpose. 

Justice Pardiwala stated “no person would voluntarily want to get detected as foreigner due to the subjectivity of the procedure. Seeing thus that working of the Section 6A (3) goes against the purpose of the provision, the provision counter-serves the object.”

Justice Pardiwala observed that the structure created by Section 6A, which established two categories of citizenship, could only be effective if a detection process was successfully conducted. However, since the detection was not feasible, he questioned the rationale for creating such categories. 

Justice Pardiwala stated that “the underline object of creating 2 categories under S.6A could only be achieved by a detection process, however, since the detection could not be achieved, I find no reason to believe the creation of 2 categories.”

He further asserted that the mechanism did not allow individuals from the 1966-71 category to voluntarily obtain citizenship, and suggested that while the provision may have been valid at the time of enactment, it had become redundant over time, thus failing the test of manifest arbitrariness.

The dissenting opinion noted that while the provision may have been valid at the time of its enactment, it has since become redundant due to the passage of time, forming a crucial part of the argument against manifest arbitrariness.

Additionally, the dissent highlights that, contrary to the view expressed by Justice Suryakant, the issue of illegal immigration cannot be overlooked in light of Section 6A. The dissent asserts that illegal immigration into Assam persists today, perpetuated by the provisions of Section 6A. It further clarifies the distinction between Sections 6 and 6A, emphasising that under Section 6, individuals from Pakistan who arrived during the Partition bore the responsibility to prove their citizenship, unlike the current situation under Section 6A.

Justice Pardiwala stated that “the ultimate view taken by my lord is that illegal immigration cannot be viewed due to Section 6A. However, the illegal immigration into Assam till today continued due to the influx under Section 6A. The difference between Section 6 and Section 6A was that under S.6 persons from Pakistan coming to India during Partition – onus was on them to prove citizenship and not the State.”

In conclusion, the dissenting opinion of Justice Pardiwala passed the following directions, holding however that there will be no retrospective application:

“Para 218

1. Immigrants who migrated before 01.01.1966 and were conferred deemed citizenship on the date of commencement of Section 6A(2), subject to fulfilment of all the conditions mentioned therein, shall remain unaffected.
2. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and have been granted citizenship after following the due procedure prescribed under Section 6A(3) shall remain unaffected.
3. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners and have registered themselves with the registering authority as per the prescribed rules, shall be deemed to be citizens of India for all purposes from the date of expiry of a period of ten years from the date on which they were detected as foreigners.
4. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners but have not registered themselves with the registering authority within the prescribed time limit as per the Citizenship Rules, 2009 will no longer be eligible for the benefit of citizenship.
5. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and whose applications are pending for adjudication before the Foreigners Tribunal, or who have preferred any appeal against any order of such tribunal which is pending before any court will continue to be governed by Section 6A(3) as it stood immediately prior to the pronouncement of this judgment, till their appeals are disposed of.
6. From the date of pronouncement of this judgment, all immigrants in the State of Assam shall be dealt with in accordance with the applicable laws and no benefit under Section 6A shall be available to any such immigrant. To be precise, if someone is apprehended as an illegal immigrant after the pronouncement of this judgment, Section 6A of the Citizenship Act will have no application.”

Background of the issue: Challenges to Section 6A, the NRC, and the Assam Accord

The roots of the current legal challenges to Section 6A of the Citizenship Act, 1955, trace back to the Assam Accord of 1985, an agreement reached between the Rajiv Gandhi-led central government and leaders of Assam. This agreement sought to address the long-standing issue of illegal immigration, particularly from Bangladesh, and its impact on Assam’s demographic and cultural identity.

The Assam Accord, which came after six years of protests led by the All Assam Students Union (AASU), included provisions for updating the National Register of Citizens (NRC) in Assam. A key part of the agreement, Paragraph 5, was codified in the Citizenship Act through the introduction of Section 6A. This section outlined a new procedure for granting Indian citizenship to migrants who entered Assam between January 1, 1966, and March 25, 1971. Those who migrated during this period could either become citizens immediately or after a ten-year waiting period.

However, in November 2012, the Assam Sanmilita Mahasangha challenged Section 6A in the Supreme Court, arguing that it created a separate pathway to citizenship for these migrants, thereby discriminating against other Indian citizens. This legal challenge questioned whether Section 6A violated the Constitution by granting preferential treatment to a specific group of migrants. Meanwhile, the NRC process remained inactive until 2013, when a Supreme Court Bench, comprising Justices R.F. Nariman and Ranjan Gogoi, ordered its update in Assam.

By December 2015, the Supreme Court referred the challenge to Section 6A to a five-judge Constitution Bench for further examination. On November 1, 2022, the Constitution Bench decided to hear the pleas challenging the constitutional validity of Section 6A, which was inserted through the 1985 amendment as part of the Assam Accord. The court set December 13, 2022, for directions in the case and instructed the parties to submit their written submissions, precedents, and documentary evidence.

The hearing on this matter finally began on December 5, 2023, before the Constitution Bench. Section 6A, which enables migrants from Bangladesh who arrived in Assam after January 1, 1966, but before March 25, 1971, to apply for Indian citizenship, remains at the centre of this legal battle. Several indigenous groups from Assam have opposed this provision, claiming it legitimises illegal immigration from Bangladesh, thus undermining the cultural, social, and demographic integrity of Assam.

Key contentions raised by petitioners against Section 6A of the Citizenship Act

The petitioners raised several key contentions against Section 6A of the Citizenship Act. First, they argued that the provision violates the essential fabric of the Constitution as outlined in the Preamble, particularly the principles of fraternity, citizenship, unity, and the integrity of India. They also contended that Section 6A infringes upon fundamental rights guaranteed under Articles 14 (equality), 21 (life and liberty), and 29 (protection of cultural rights) of the Constitution of India. Additionally, the petitioners claimed that the provision undermines the political rights of citizens as provided under Articles 325 and 326, which govern electoral rights.

Furthermore, they challenged the legislative competence behind Section 6A, asserting that it contradicts the constitutional cut-off date for determining citizenship and represents legislative overreach. The petitioners also argued that the provision erodes democratic values, federalism, and the rule of law, which are fundamental components of the basic structure of the Constitution.

Based on these arguments, the petitioners sought several remedies. They requested that the court declare Section 6A unconstitutional for violating Articles 14, 21, and 29. They also sought to have Rule 4A of the 2003 Rules and a 2013 notification declared ultra vires. Alternatively, they asked for a directive to the Union of India to develop a policy, in consultation with states, to proportionally resettle immigrants who arrived in Assam after January 1951 across the country. Additionally, they requested that the Union complete the fencing of the border and take steps to identify, detect, and deport illegal immigrants from Assam. Lastly, they called for the removal of encroachers from protected tribal lands under the Assam Lands and Revenue Regulations.

Brief on the hearings: Arguments for and against Section 6A of the Citizenship Act

During the hearings on the petitions challenging Section 6A of the Citizenship Act, both the union government and the Assam government argued in defence of the provision. They maintained that Section 6A was introduced to address a unique situation that arose following the Assam Accord of 1985, which aimed to quell violent protests in the state. The union government emphasised that Section 6A was part of a legislative policy arising from a political settlement based on relevant considerations of state and foreign policy. It further argued that it would be difficult for the court to establish judicially manageable standards to assess the constitutional validity of such a provision.

The union government also provided data during the hearings, stating that as of October 31, 2022, foreigner tribunals had identified 32,381 individuals as foreigners. Of these, 17,861 were granted Indian citizenship after registering with the Foreigners Regional Registration Office (FRRO). When asked by the court to provide information on the number of illegal immigrants who entered Assam after the March 25, 1971 cut-off date, the union admitted that an accurate figure was difficult to provide due to the clandestine nature of such entries. It acknowledged that the process of detecting, detaining, and deporting illegal foreign nationals remains complex and ongoing.

Solicitor General Tushar Mehta, representing the union government, highlighted the challenges posed by illegal immigration, noting that India’s porous borders allow for the secret entry of immigrants. However, this argument was countered by Jamait Ulema-i-Hind, an intervenor in the case, which contended that migration has always been a part of Assam’s history and that such migration can never be fully mapped.

On the opposing side, senior advocates Shyam Divan, KN Chaudhary, and Vijay Hansaria led the arguments against Section 6A. They argued that Parliament, by enacting this provision, had effectively amended the Constitution. They cited Article 6, which set a cut-off date of January 1950 for migrants from Pakistan who arrived after July 19, 1948, allowing them to become citizens. According to them, Section 6A shifted this cut-off to January 1966 for migrants from Bangladesh, further extending it to March 25, 1971, for residents of East Pakistan, thereby altering the original constitutional provisions.

Additionally, the petitioners submitted that the settlement of illegal immigrants in Assam had significantly altered the state’s demographic composition. As a result, these migrants had gained political dominance in 32 out of the 126 assembly constituencies in Assam.

Citizens for Justice and Peace’s intervention: Senior Advocate CU Singh’s arguments

In the ongoing case concerning Section 6A of the Citizenship Act, Citizens for Justice and Peace (CJP) also intervened, presenting their stance through Senior Advocate CU Singh on December 12. Singh argued that the petitioners were not merely advocating for their own rights but were attempting to strip away the rights that had been granted to others over several decades.

He emphasised that Section 6A, which governs the determination of foreigners under the Assam Accord, did not violate Article 14 of the Constitution, which guarantees equality before the law. Singh pointed out that granting citizenship to one specific group of people does not automatically constitute a violation of the rights of another group. Furthermore, he argued, those denied citizenship could raise claims of discrimination, but it was not for others to question why citizenship had been granted to those who qualified under Section 6A.

Singh made a compelling case, stating, “This isn’t about the petitioners asserting their own rights; they are seeking to revoke the rights that others have gained over the past 27 to 30 years—today, that’s a span of 40 years.” He further clarified, “Section 6A doesn’t breach Article 14; rather, it legalises the process of determining foreigners as per the Assam Accord. Just because you grant citizenship to one group doesn’t mean there’s an automatic violation. Only those who are denied citizenship can claim a violation, but can someone else challenge why it was given to another?”

This argument underscored CJP’s position that the petitioners’ demands would upend settled rights and protections afforded to individuals under the provisions of the Assam Accord.

The Advocate-on-Record was Senior Advocate Aparna Bhatt, and research assistance in filling the written statement and an additional note was given by Advocate Mrinmoy Dutta of the Gauhati High Court and Advocate Gautam Bhatia.

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The post Supreme Court upholds constitutional validity of Section 6A of Citizenship Act in 4:1 verdict, creates permanent bench for adjudication appeared first on SabrangIndia.

Masih said he was separately marking them so that they wouldn’t get mixed up. To this, the bench of Chief Justice of India D.Y. Chandrachud remarked, “You [Masih] had to sign the ballot papers only. Where is it provided in the rules that you can put other marks in the ballot papers?” LiveLaw reported.

The SC was posing questions to Mr Anil Masih, the presiding officer of the mayoral elections as to the reason for his ‘unusual conduct’ while counting the votes. The bench also opined that Mr Masih should be prosecuted for interfering with the election process. The Court said that instead of ordering a fresh election, it would order the counting of votes based on the existing ballots by a neutral Presiding Officer. The Court directed that the ballot papers in the custody of the Registrar General of the High Court be produced before the Court tomorrow at 2 PM in accordance with relevant steps for the preservation of the ballot papers for the scrutiny of the court.

Mr. Anil Masih, is a nominated member of the Chandigarh Municipality and belonging to the BJP, was appointed as the Presiding Officer of the Chandigarh Mayor elections. On February 5, the Court had directed the personal presence of Mr. Masih, after seeing the videos which suggested that he had put marks on certain ballot papers to deliberately render them invalid, helping the victory of the BJP candidate. The Court had also remarked that what the Chandigarh mayoral elections had witnessed was a “murder of democracy.”

Later, it said it was deeply concerned about the horse-trading that was taking place.

On Sunday, although the BJP mayor, Manoj Sonkar, resigned from his post amid rigging allegations, three AAP councillors joined the party in order to turn the tide in its favour in the event of a repoll.

Reacting on the development, AAP supremo and Delhi chief minister Arvind Kejriwal said in Delhi today said that Manoj Sonkar’s resignation proved that the elections were manipulated.

“Now when the BJP can’t win elections, our councillors are being purchased and broken,” Kejriwal said.

AAP Punjab spokesperson Malvinder Singh Kang said that earlier, the BJP’s wrongdoings were caught on camera and were noticed by the Supreme Court. Now, the BJP are poaching AAP councillors overnight with an ‘Operation Lotus’, he said.

“I don’t think there has been any bigger mockery of Indian democracy,” he added.

“The world is witnessing the BJP’s greed for power”, said AAP leader Saurabh Bharadwaj on Sonkar’s resignation and the alleged poaching of the three AAP councillors.

Today, Monday, February 19, in a detailed round of questioning by CJI DY Chandrachud, the Returning Officer, Mr Masih admitted that he did put certain marks on 8 ballot papers while the counting process was ongoing.

LiveLaw reports the exchange that may be read here.

In his defence, Mr Masih explained that he had only put markings (and not an X mark per say) on those ballot papers to ensure that they do not get mixed with other papers. He also informed that right when he did these markings, Mr Manohar and Mrs Premlata belonging to the AAP party came and started snatching and destroying the ballot papers. He further added that the Chandigarh Police Marshalls had to intervene and preserve the ballot papers amidst the said chaos.

The CJI however, still pressed as to what necessitated the presiding officer to make such marking in the first place. The bench asked him under which provision of the law was he entitled to make such markings, as his post as a presiding officer only allowed him to put his signature under each ballot paper and nothing beyond.

CJI : Ballot paper ko deface aap kyu kar rahe the? App aise kyu kare? Aapko sign karna hai? (Why did you deface the ballot papers? You had to sign the papers only. Where is it provided in the rules that you can put other marks in the ballot papers)

Masih: Sir I was highlighting that they are defaced

CJI : So it is admitted that you have put your marks on the ballot

Masih : Jee (yes) Sir

Considering the above response of the Officer, the CJI expressed his utter disappointment towards the flouting of duties as a Returning Officer which as per him deserved prosecution.

” His answer is very clear, he has to be prosecuted. I think interfering with the electoral democracy by a Returning Officer is the gravest possible thing.”

It was the claim of Mr Masih that he had only put marks on 8 ballot papers which were defaced. The bench took note of the fact that the present irregularities in the election process have led to horse-trading amongst political parties.

“The process of horse-trading which is going on is a serious matter…”

CJI directed that the Registrar General of the P&H High Court appoint a judicial officer who shall produce the ballot papers before the Court for their perusal.

The bench comprising the Chief Justice, DY Chandrachud and Justices JB Pardiwala and Manoj Misra was informed that the incumbent mayor from the BJP has resigned. Then turning towards the solicitor general, CJI Chandrachud further said, “Mr Solicitor, he has to be prosecuted. He was interfering with [the] election process”.

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The post Chandigarh Mayor Poll: Presiding Officer admits putting marks on 8 Ballots; ‘He Must Be Prosecuted’, Says Supreme Court appeared first on SabrangIndia.

The letter has alleged that peaceful protests were met with fake encounters, abductions and demolition of houses belonging to the protesters by police and other government instrumentalities.

“Even when some of the most oppressed and exploited sections of the country, the Adivasis of Odisha, Chhattisgarh, Madhya Pradesh, Maharashtra etc., engaged in prolonged peaceful mass movements against mining-based displacement and rapid militarisation of their lands, the people are met with fake encounters, abductions and uprooting of their homes for exercising their democratic rights, demanding fair Gram Sabhas and the implementation of the Panchayat Extension to Scheduled Areas (PESA) Act, 1996,” the letter states.

“From Srinagar to Silger, all democratic dissent is attacked with varied degrees of violence and branded with the tag of Maoists and separatists. Journalists… arrested, people being violently displaced for the sake of corporate interests, internet shutdown bringing life back to the dark ages, academics in jail and retired judges forbidden from speaking in the country’s capital, where is the safety valve for democracy?” it asked.

In Chhattisgarh’s Silger, youth and the women had held one of the longest sit-ins to protest police firing on Adivasis opposing “rapacious mining and militarisation of their homes”.

The 135 signatories to the letter include Deepak Kumar, a political activist with the Campaign Against State Repression (CASR); G. Haragopal, a retired professor of the Hyderabad University and an activist; the Telangana Civil Liberties Commission; S.R. Darapuri, a retired IPS officer; the All India People’s Front; Manoranjan Mohanty, a retired professor of Delhi University; Nandita Narain, an associate professor of St. Stephen’s College, Delhi University; N.D. Pancholi, advocate at the People’s Union for Civil Liberties (PUCL); Shamsul Islam, author and retired faculty member of Delhi University; and A.S. Vasantha Kumari, a civil liberty activist.

The letter said the most recent incident occurred on December 10, 2023, when the world celebrated the 75th anniversary of the United Nations’ Universal Declaration of Human Rights as “Human Rights Day”. The signatories alleged that Parliament Street Police Station denied permission for a gathering to mark this occasion.

They alleged that though permission was sought 12 days in advance by the Campaign Against State Repression (CASR) — a coalition of 40 democratic progressive organisations — the organisers were informed about the cancellation of the permission less than 14 hours before the scheduled event.

The writers also expressed dismay at how a public discussion on March 15, 2023, organised by the CASR to address issues such as the “Media Blackout in Kashmir”, suppression of the free press, freedom of speech and expression, and the attack on journalists in the Valley had to be cancelled. They said the police cancelled the permission for the event with a two-hour notice and barricaded the venue at Gandhi Peace Foundation despite the fact that it was to be addressed by Justice Hussain Masoodi, a retired judge of the Jammu and Kashmir High Court, along with former legislators, renowned democratic rights activists and academics.

For a similar event, the “Bharat Bachao National Convention”, held at HKS Surjeet Bhavan in New Delhi, the organisers had to seek permission from the Delhi High Court after the Delhi police cancelled its permission and coerced the venue administration to scrap the bookings in March last year, the letter states.

According to the letter, police permission for all these events and many more had been cancelled citing vague arguments of “law & order/security”.

“Yet, the practices of the Delhi Police continue to push in the direction where democratic spaces are curtailed with impunity and the notions of liberties and dissent are attacked. When CASR sought permission for its gathering at Jantar Mantar, one of the historic spots of democratic gatherings for Indian democracy on 10th December, it was denied.

“When peaceful gatherings for civil discourse are sought at private venues, the police barricade the events and threaten the venue owners. When peaceful gatherings for democratic rights are sought at public spaces designated for such activities like Jantar Mantar, the permits are cancelled strategically at night to ensure no alternative is found. When these actions are protested by the people, we are assaulted, beaten with the butts of guns, detained, abducted and even threatened with our lives,” the letter said.

The letter added: “After all this, the women and LGBT persons who participated in the protests and gave their own contact details to the police received phone calls at their residences, not at the contacts they gave but directly to their families. Their family members were told by police officers to discourage their daughters from participating in protests and the police resorted to using patriarchy against adults to silence dissent.”

Text of the Open Letter:

To D.Y. Chandrachud,
The Chief Justice of India,
Supreme Court of India
2nd January 2024

Dear Justice Chandrachud,

We write this letter to you as a members of democratic-minded civil society and activists who are working on issues concerning democratic ethos of the people and the protection of their civic, democratic, and constitutional rights. We write this letter to you as an appeal, as well as a query regarding people’s right to freedom of speech and expression, a right that has been fought hard to achieve by our great people and forbearers and is also protected under the constitution. This right, along with the overall democratic rights of our people, some of them guaranteed under the Indian Constitution, are seeing an overall deterioration that alarms us.

Recently, a concerning trend of cancelling permissions for any programme focused on any social critique has emerged, along with the banning of peaceful protest gatherings and public meetings on various issues concerning democratic and Constitutional right of the people. The most recent case occurred on 10th December 2023, when the world celebrated the 75th anniversary of the United Nations’ Universal Declaration of Human Rights as “Human Rights Day.” The Parliament Street Police Station chose to deny the permission for a gathering to mark this occasion and discuss the event, less than 14 hours before the event even though the permission for the same was sought for 12 days prior on 28th November. The organizers of the gathering, Campaign Against State Repression (CASR), a coalition of 40 democratic progressive organizations, was informed about cancellation of the permission with less than 24 hours’ notice, on 9th December at around 9:15 pm. It is pertinent to mention that this is not the first time that police has resorted to such measures. On 15th March of this year, the same organizers were holding an indoor public discussion on “Media Blackout in Kashmir” to discuss suppression of free press, freedom of speech and expression, and the attack on journalists in Kashmir. Police cancelled the permission of the event with a 2 hours’ notice and barricaded the Gandhi Peace Foundation (GPF) venue at ITO, despite the fact that the event was to be addressed by Justice Hussain Masoodi, retired from the Jammu and Kashmir High Court, along with former legislators, renowned democratic rights activists and academics. Furthermore, a similar event by the name of “Bharat Bachao National Convention” held at HKS Surjeet Bhawan in New Delhi had to seek permission from the Delhi High Court after the Delhi police cancelled its permission and coerced the venue administration to cancel the bookings in March, 2023. Police permission of all these events and many more events/gatherings have been cancelled on grounds of vague arguments of “law & order/security.”

French philosopher and democrat, Jean-Jacques Rousseau proclaimed, “to renounce liberty is to renounce being a man, to surrender the rights [and duties] of humanity.” Even the Hon’ble Supreme Court itself has stated that “citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action,” in Ramlila Maidan Incident v. Home Secretary, Union of India 2012. Yet, the practices of the Delhi Police continue to push in the direction where democratic spaces are curtailed with impunity and the notions of liberties and dissent are attacked. When CASR sought permission for its gathering at Jantar Mantar, one of the historic spots of democratic gatherings for Indian democracy on 10th December, it was denied. When CASR-affiliated organizations chose to protest against this arbitrary action and mockery of the Universal Declaration of Human Rights, the protestors were attacked by police and the BSF, with horrifying scenes of police personnel openly threatening to fire on women and LGBT activists in front of the Rashtrapati Bhawan and the Lok Sabha in session! In front of the residence of the head of state of the Republic of India, the President herself, a student of journalism from Delhi University was separated from the protestors, brutally beaten by the police and was missing while in police detention for 7 hours, with no one aware of his whereabouts, for no actionable cause. When peaceful gatherings for civil discourse are sought at private venues, the police barricade the events and threatens the venue owners. When peaceful gatherings for democratic rights are sought at public spaces designated for such activities like Jantar Mantar, the permits are cancelled strategically at night to ensure no alternative is found. When these actions are protested by the people, we are assaulted, beaten with the butts of guns, detained, abducted and even threatened with our lives.  After all this, the women and LGBT persons who participated in the protests and gave their own contact details to the police received phone calls at their residences, not at the contacts they gave but directly to their families. Their family members were told by police officers to discourage their daughters from participating in protests and the police resorted to using patriarchy against adults to silence dissent.

Dear sir, you once said, “dissent is the safety valve of democracy” and have reiterated the need of democratic ethos. Yet, space for dissent is disappearing right in front of our eyes, to the point that we are seeing a cornering of people’s space for any democratic discourse and dissent. Dr. Ambedkar, in his famous address to the Constituent Assembly of India on 25th November 1949 said, “when there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods.” When dissent is curtailed to such an extent where constitutional methods are robbed from the people, will the safety valve not break and lead to the protest that occurred on 13th December 2023 by Neelam Azad, Amol Shinde, Manoranjan D, Sagar Sharma, Lalit Jha and Vishal Sharma? In light of such developments, curtailment of a constitutionally-sound protest mere 3 days prior, how is it that their protest is reduced to a concern of ‘security breach’ and draconian ‘anti-terror’ law like the Unlawful Activities (Prevention) Act, 1967 are utilized against them?

The recent events themselves are part of a larger chain of affairs that are creating the realization that space for democratic dissent does not exist in India. From the arresting of Delhi University’s Dr. G.N. Saibaba in 2016, the mass arrests in the Bhima Koregaon-Elgaar Parishad case of democratic rights activists in 2018, the snapping of internet and phone connectivity in Kashmir in 2019 to initiate the longest internet shutdown in any country claiming to be a democracy, the arresting of prominent journalists from Kashmir and rest of India under anti-state charges, the mass arrests of democratic activists of the anti-CAA protests during the COVID-19 lockdown along with the glorification of the bulldozering of their homes to the present, a grim picture is painted for the people of India regarding democratic rights. Even when some of the most oppressed and exploited sections of the country, the Adivasis of Odisha, Chhattisgarh, Madhya Pradesh, Maharashtra etc., engaged in prolonged peaceful mass movements against mining-based displacement and rapid militarization of their lands, the people are met with fake encounters, abductions and uprooting of their homes for exercising their democratic rights, demanding fair Gram Sabhas and the implementation of the Panchayat Extension to Scheduled Areas (PESA) Act, 1996. In Silger, Chhattisgarh, the youth and the women conducted one of the longest sit-in protests where thousands of Adivasis of Bastar gathered to protest the police open-firing on Adivasis for opposing rapacious mining and militarization of their homes. From Srinagar to Silger, all democratic dissent is attacked with varied degrees of violence and branded with the tag of Maoists and separatists. Journalists arrested, a people being violently displaced for the sake of corporate interests, internet shutdown bringing life back to the dark ages, academics in jail and retired judges forbidden from speaking in the country’s capital, where is the safety valve for democracy?

We would like to draw your attention to this alarming situation. If a retired High Court judge and former legislators are not allowed to speak in a conference, if people are not allowed to gather and protest peacefully even at places like Jantar Mantar, one could only wonder, what right to freedom of Speech and Expression do the poor people from far away regions of the country have. We would like to know whether a blanket and sweeping powers can be granted to police and administrative bodies to cancel permissions without any reasonable justification expect other than a vague and an undefined term such as “law and order”. Have the constitutional guarantees been so broken and weakened that a mere two-line order citing three-word reason can stifle our rights guaranteed under Article 19 of the Constitution? Do the oppressed and exploited not have the right to defend their liberty? Are we not humans? Or is it that India, claiming to be the world’s largest democracy, not a signatory to United Nations Declaration of Human Rights? We want to remind you and your fellow members of the judiciary of the words of John Rawls, a jurist you will surely remember from your days of legal education. “Justice is the first virtue of social institutions, as truth is of systems of thought….. Laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust…… for this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others….. therefore, in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”

These are some of many questions that are affecting us and various sections of the country. If the people are not allowed to raise their concerns, their disagreement and their views, how are we supposed to grow into a more democratic society and progress? If people are stopped from peaceful protests, what is to come next and towards which trajectory are we heading. Suppression of freedom of expression of the people and democracy are not coherent and one shall be the end of the other. Going by the words of our great martyr and freedom fighter Bhagat Singh “the sanctity of a law can only be maintained as long as it is the reflection of the will of the people” and these unjust and arbitrary orders are not one.

Therefore, we appeal you to take this matter into suo moto cognizance, to defend the democratic rights and spaces of people, to uphold the liberty and dispel justice by preserving the rights and freedom of the Indian people, including the right to dissent, to express freely. We hope that some positive steps will be taken by the Supreme Court of India to direct the police and administrative bodies to stop stifling dissent in the name of “law and order”.

Thanking you

Signed,

1. Deepak Kumar, Political Activist, Campaign Against State Repression (CASR)
2. G. Haragopal, Retd. Professor from Hyderabad University and Activist, Telangana Civil Liberties Commission
3. S.R. Darapuri, Retd. IPS Officer, All India People’s Front
4. Manoranjan Mohanty, Retd. Professor, Delhi University
5. Nandita Narain, Associate Professor, St. Stephen’s College, Delhi University
6. N.D. Pancholi, Advocate, People’s Union for Civil Liberties (PUCL)
7. Shamsul Islam, Author and Retd. Faculty, Delhi University
8. AS Vasantha Kumari, Activist
9. John Dayal, Author and Human Rights Activist
10. Seema Azad, Human Rights Activist, People’s Union for Civil Liberties (PUCL)
11. Safoora Zargar, Researcher
12. Karen Gabriel, Professor, St. Stephen’s College, Delhi University
13. Dr. Pramod Kumar Bagde, Faculty, Benaras Hindu University, Varanasi
14. Prem Kumar Vijayan, Faculty, Hindu College, Delhi University
15. K. Muralidharan, Author
16. Wahid Shaikh, Teacher, Innocence Network
17. Asish Gupta, Journalist
18. Manish Azad, Political Activist
19. Amita Sheereen, Author and Translator
20. Ira Raja, Faculty, Delhi University
21. Ashutosh Kumar, Faculty, Delhi University
22. Tushar Kanti, Journalist, Author and Translator
23. Atikur Rahman, Activist
24. Jagmohan Singh, Teacher, All India Forum For Right to Education (AIFRTE)
25. K.R. Ravi Chander, Activist, Forum Against State Repression
26. Roop Rekha Verma, Retired Professor
27. Prabhakaran Hebbar Illath, Professor, University of Calicut
28. Lanu Longkumer, Faculty, Nagaland University
29. Preethi Krishnan, Faculty, O.P. Jindal Global University
30. M.R. Nandan, Retired Teacher, Founding Member, Karnataka Physics Association
31. Arun, Retd. Lecturer, VIRASAM (Revolutionary Writers’ Association)
32. Dr. SG Vombatkere, Engineer, National Alliance for People’s Movements (NAPM)
33. Gopalji Pradhan, Teacher, Democratic Teachers Initiative
34. Joseph Victor Edwin, Teacher
35. G. Rosanna, Rayalseema Vidyavanthula Vedika
36. Susan John Puthusseril, SIVY ( Society for the Inculcation of Values in Youth)
37. Dr. D.M Diwakar, DRI Jalsain
38. Neeraj Malik, Faculty, Delhi University
39. Kranthi Chaitanya, Advocate, Civil Liberties Committee
40. Siddhanth Raj, Lawyer and Trade Unionist, IFTU (Sarwahara)
41. Kanwaljeet Khanna, General Secretary, Inqlabi Kendra Punjab
42. Aga Syed Muntazir Mehdi, Advocate
43. Julius Tudu, Advocate, Legal Cell for Human Rights Guwahati
44. Thomas Pallithanam, Advocate, People’s Action for Rural Awakening
45. Vikas Attri, Advocate, Progressive Lawyers Association
46. Lovepreet Kaur, Advocate
47. Buta Singh, Writer, Translator and Journalist, Association for Democratic Rights
48. Bajrang Bihari, Writer, Janvadi Lekhak Singh
49. Shalu Nigam, Lawyer and Independent Researcher
50. Padma Kondiparthi, Advocate
51. Feroze Mithiborwala, Freelance Writer, Bharat Bachao Andolan
52. C.K.Theivammal, Advocate
53. Navjot Kaur, Advocate
54. Ravinder Singh, Advocate
55. Vibha Wahi, Social Activist, All India Progressive Women’s Association (AIPWA)
56. Himanshu Kumar, Human Rights Activist, VCA Dantewada
57. Sukoon, Writer
58. Arjun Prasad Singh, Social-Political Activist, Democratic People’s Forum
59. Kanwarjit Singh, Bharatiya Kisan Union (Ekta Ugrahaan)
60. S.P. Udayakumar, Social worker, Green Tamil Nadu Party
61. Sumeet Singh, Tarksheel Society Punjab
62. Thomas Franco, Social Activist, People First
63. Sharanya Nayak, Social Activist, Independent Consultant
64. Shabnam Hashmi, Social Activist, Anhad
65. Sudha, Therapist and Trainer, CNVC
66. Neelima Sharma, Theatre, Nishant Natya Manch
67. Lal Prakash Rahi, Social Work, Disha Foundation
68. Shakeel Ahmad, Scholar, Benaras Hindu University Varanasi
69. Navneet Singh, Research Scholar, Delhi University
70. Pritpal Singh, Rights Activist, Association for Democratic Rights
71. Nihar, Farmer, All India Kisan Mazdoor Sangh (AIKMS)
72. Rajeev Yadav, Activist, Rihai Manch
73. Abhijit Dasgupta, Activist
74. Dr. Anil Kumar Roy, Activist
75. Ramsharan Joshi, Journalist
76. Sumar Raj R, Retired Business Person, Nishant Natya Manch
77. Nagargere Ramesh, Karnataka Janashakti
78. Ramesh Shivamogga, Akila Karnataka vicharavadi Trust Bengaluru
79. Muniza Khan, Researcher, Gandhian Institute of Studies
80. Dr. Joseph Xavier, Researcher, IDEAS Mumbai
81. Dr. Vikash Sharma, Indian Council of Social Science Research (ICSSR) Delhi
82. G. Vijaya Bhaskara Reddy, Retd. Office Superintendent, BSNL Kurnool, Honorary District President, BSNL Employees Union, Kurnool & Co Convenor, Rayalaseema Vidyavanthula Vedika
83. K.C.Venkateswarlu, Pensioner, Palamuru Adhyayana Vedika
84. Sandeep Kumar, Poet
85. Aflatoon, Samajwadi Jan Parishad
86. Vinod Kumar Singh, Independent Researcher
87. Snehashish Chhaterjee, Healthcare Worker
88. Mahnoor, Drama Therapist
89. Kaushik Tadvi, Artist
90. Frazer Mascarenhas, Academic Administrator
91. Pravith, Software Developer
92. Sushil Benjamin, Serviceman
93. Amar PM, Software Engineer
94. Sudarshan Ramiengar, Self Employed Engineer
95. Suresh Joshi, Serviceman
96. Ramchandra, Student Activist, Inqalabi Chhatra Morcha (ICM)
97. Baadal, Student, Bhagat Singh Chatra Ekta Manch (bsCEM)
98. Najih Ettiyakath, Student, DISSC
99. Mukundan M Nair, Student, Sangharsh Democratic Students’ Collective
100. Ajay, Student, bsCEM
101. Richa, Student
102. Sumanth, , Student
103. Avanti , Student, bsCEM
104. Eksimar Singh, Student, Delhi University
105. Rifah Luqman, Student
106. Japneet Kaur, Student
107. Sneha Dwivedi, Student
108. AWM, Student
109. Swapnendu Chakraborty, Student, Revolutionary Students’ Front (RSF)
110. Shree Pal, Student, RSF
111. Abhinash Satapathy, Student
112. Sumaiya Fatima, Student
113. Arya, Student
114. Nishka, Student
115. Indranuj Ray, Student, RSF
116. Anirban Chakraborty, Student, RSF
117. Ankitaa Bal, Student, Calcutta University
118. Affan Alig, Student, bsCEM
119. Vallika, Student, Nazariya Magazine
120. Aishwarya, Student, BSJAY
121. Priyanshu, Medical Student
122. Parthipan, Student
123. Madhuri
124. Archita Sharma
125. Asha S Babu
126. Raghav
127. Astha
128. Ahlaam Rafiq
129. Ramnit
130. Ava Schneider
131. Azad
132. Dhir Pratap
133. S.V. Raman
134. Prateek
135. Thomas Kavalakatt

The post Stifling of right to protest, freedom: Open letter to CJI Chandrachud appeared first on SabrangIndia.

The bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, had reserved the judgment in the said case on May 11, 2023. The verdict pronouncement lasted for almost two hours and was delivered through four judgments that had “a degree of agreement and a degree of disagreement,” as per CJI Chandrachud. While three of the judges, forming the majority, agreed that the court cannot form an obligation on the state to create a legal status for queer couples, the minority judgments of CJI Chandrachud and Justice Kaul had deemed it necessary to recognise civil unions of queer couples.

 The judgments:

1. CJI Chandrachud

CJI Chandrachud, who is known for his liberal views on and knowledge of gender, dedicated one section of his judgement to the issue of queerness not being an urban or an elitist concept that is restricted to the upper classes of the society. As stated by him, “Queerness can be regardless of one’s caste or class or socio-economic status.” It is essential to highlight here that the aforementioned remark was a response to the argument raised by the Union of India that the issue of same-sex marriage is an issue of the urban elite.

In his judgement, the CJI dealt with the issue of judicial review and separation of powers. CJI Chandrachud highlighted that one of the major arguments put forth by the Union of India was that the court was violating the doctrine of separation of power by entering this arena and that it should be left to the Parliament to legislate on the issue of same sex marriage. CJI Chandrachud then stated that the institution of marriage has been static and changing, with the move from the practice of Sati to allowing remarriage to prohibition of child marriage, and these reforms have been brought in through act of the legislature. And thus, he held that the intimate activities within the private spaces that individuals occupy cannot be deemed to be out of State’s scrutiny.

CJI Chandrachud also left it to Parliament to decide whether there should be a change in the Section 4 of the Special Marriage Act which the petitioners had alleged to be discriminatory towards and exclusive of same-sex couples. As per Livelaw, CJI stated that “The court is not equipped to undertake such an exercise of reading meaning into the statute. Whether a change in the regime of the Special Marriage Act (SMA) is for the Parliament to decide.”

On the issue of adoption laws being exclusionary towards queer couples, CJI held that the respondents had failed to provide the necessary evidence to show that only married heterosexual couples can make for good parents. With regards to this, CJI Chandrachud held that the Central Adoption Resource Authority Regulation 5(3), which bar unmarried couples from adopting, to be read down as it indirectly discriminated against atypical unions. Notably, as per the laws in place, a queer person can adopt only in an individual capacity. The CJI held the said regulation to have an effect of reinforcing the discrimination against queer community, and stated that “The CARA circular (which excludes queer couples from adoption) is violative of Article 15 of the Constitution.”

Through his judgement, CJI Chandrachud re-iterated the fundamental rights that the Constitution of India that include the right to enter into a union and the right to recognition of that union under Article 19 as well as right to choose one’s partner under Article 21. Through this, CJI Chandrachud held that the fundamental rights of queer couples that already exist cannot be denied and doing so will amount to discrimination.

In conclusion, CJI Chandrachud, however, did not grant any concrete steps to extend the marital rights to the queer community, creating a separate space for them or making any changes to the SMA. Instead, he held that queer unions, along with the material benefits flowing from the same, should be recognised under the existing fundamental rights. He also added that if queer associations are not recognised under Part 3 of the Constitution, it could thwart freedoms and will be discriminatory in nature.

Without providing any set deadline, CJI DY Chandrachud left it to the Union Government that had vehemently opposed the Supreme Court on considering the issue of equitable marital rights to form a committee to decide the rights and entitlements of persons in queer unions. The committee, he said, shall consider including queer couples as family in ration cards, enabling queer couples to name each other as nominees in bank accounts, etc.

 Justice S.K. Kaul

Justice Kaul’s judgment was in agreement with the judgment of CJI Chandrachud. In his judgment, Justice Kaul held that constitutional courts have to uphold the rights of individuals through the guidance of constitutional morality and not social morality. And thus, according to him, it was essential that queer unions are recognised as a union of partnership and love. He further added that the path to marriage equality is through legal recognition of non-heterosexual unions.

While pronouncing his judgement, Justice Kaul had stated that “Non-heterosexual unions and heterosexual unions must be seen as both sides of the same coin. This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.”

Justice Kaul too, however, much like CJI Chandrachud, held back from issuing any concrete directions to extend the rights of marriage under the SMA to queer couples. Even after holding the SMA to be violative of Article 14, he left it up to the parliament to read down or change the exclusionary provisions of the said Act keeping in mind the “cascading effect” that it can have.

 Justices Ravindra Bhat and Hima Kohli

The judgement pronounced by Justice Bhat had been signed by him and Justice Kohli. Through the judgement, Justice Bhat had disagreed with the judgment of CJI Chandrachud on certain aspects. He had stated “We do not particularly subscribe to the views of CJI on democratising intimate spaces.”

According to Justice Bhat, reforms to the institution of marriage can only be brought through the legislative acts introduced by the state and the interference by the Courts have been limited to protecting the queer individuals from facing violence. 

In his judgement, Justice Bhat held it wrong to obligate the state to create a legal status for queer couples by holding the institution of marriage to be separate from the state. Justice Bhat held, “This court has recognised that marriage is a social institution. Marriage as an institution precedes the state. This implies that marriage structure exists regardless of the state. Terms of marriage are independent of the state, and its sources are external.”

Based on the aforementioned rationale, of marriage being a social institution, Justice Bhat stated that while the right to relationship, choice and intimacy fall under the ambit of Article 21, the court cannot obligate changes to a social institution. He further stated that the right of two consenting adults can only be extended to the right to dignity, to live together, be intimate, and be protected from violence. “There are difficulties in creating through a judicial diktat a right to civil union,” Justice Bhat had said.

In conclusion, Justice Bhat held that in addition to the court not being able to create a legislation for recognition of queer couples, the court also refused to obligate the state to recognise queer unions and the bouquet of rights flowing from it.

With regards to the SMA, Justice Bhat stated that the said Act cannot be read in a gender-neutral manner and had been passed solely with the purpose of allowing inter-faith and inter-caste heterosexual relationships. Notably, both CJI Chandrachud and Justice Kaul had disagreed with this contention.

In addition to this, Justice Bhat also disagreed with CJI Chandrachud on granting the right of adoption to queer couples. As per Justice Bhat, the said right of adoption could only be enacted through law. In this regard, he said, “the state as ‘parens patriae’ has to explore all areas and to ensure all benefits reach the children at large in need of stable homes”.

4. Justice P.S Narsimha

Through his judgment, Justice Narsimha agreed with the judgement of Justice Bhat and Justice Kohli. According to him, the constitutional challenged raised by the petitioners against the SMA and the Foreign Marriage Act fails based upon the reasons provided by Justice Bhat in his judgment. He too concluded the judgment by stating that the extension of marriage rights to queer couples is an activity that needs a deliberate exercise which can only be conducted by the legislature.

 Where does this leave us?

With this, the constitutional bench of the Supreme Court unanimously held that no legal recognition will be granted to queer marriages. With a ratio of 3:2, no constitutional or fundamental right of civil unions of queer couples could be granted by the court. Additionally, the majority three judgments also withheld the extension of right to adoption to queer couples. Lastly, the constitutional bench unanimously stated that the issue of recognition of marital rights of queer couples will be examined by the High-Powered committee, to be set by the Union of India.

 One step forward, 5 steps back:

Today, the queer community stands at the same juncture that it stood five years ago when the Supreme Court had unanimously read down Section 377 of the Indian Penal Code that had criminalised consensual sex between homosexuals. On that fateful day of 2018, Justice Indu Malhotra had written in her judgement that “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”

The four separate judgements pronounced by five judges of India’s Supreme Court today clearly signal disappointment for the queer community. The court not only refused to recognise queer marriages, they did not grant any recognition to civil unions or any incidental rights of queer couples. Through this judgement, by opting for judicial restraint instead of judicial activism, has the Court missed an opportunity to alleviate discrimination that the queer community faces? Arguably, instead of building upon its own precedents in the case of Navtej Singh Johar v. Union of India (2018), today’s verdict has further delayed the accrual of all rights to the queer community holds in India. 

The cautious approach adopted by the judiciary has once again prolonged the struggle of the queer community for basic and equal rights.

 Related:

In the face of conservative opposition, India’s Supreme Court will decide on petitions on Same-Sex Marriage

Unravelling India’s Legal Evolution: LGBTQIA+ Rights and the Supreme Court Handbook

Courts take forward steps for India’s LGBTQIA+ community

Long way to go before promises are kept to India’s LGBTQIA+ communities

The post Marriage Equality Case: No right to marry, form civil unions or adopt says SC appeared first on SabrangIndia.

-CJI Chandrachud to SG Tushar Mehta

The Supreme Court on Monday, July 31, said that the sexual violence incident in Manipur cannot be justified by saying that “this and this happened elsewhere”.

“We are dealing with something of unprecedented magnitude of violence against women in communal and sectarian violence. It cannot be said that crimes are happening against women and in Bengal also. But here the case is different. We cannot justify what happened in Manipur by saying that this and this happened elsewhere,” said Chief Justice of India D.Y. Chandrachud.

The apex court made these remarks while hearing a petition filed by two women from the Kuki community who were paraded naked by a mob of men on May 4.The incident occurred in B. Phainom village in Kangpokpi district, a day after the ongoing ethnic clashes between the Meiteis and Kukis began. However, while the Print had reported this in May 2023, the video went viral only on July 19, following which there was widespread outrage at the brutality and impunity with which the women were assaulted.

Since May 2023, when matters were first mentioned before a vacation bench of the Supreme Court, there has been a lot of confusion surrounding the steps that will be taken by the Supreme Court of India regarding the ongoing violence in Manipur. The Supreme Court has now demanded answers from the State and Union Governments. 

In the past few days, many different reports have surfaced, some of which suggested that the cases registered against the crimes committed in the state will no longer be handled by the Manipur police, but rather be taken over by the Central Bureau of Investigation (CBI). Reportedly, requests were also being made to conduct an independent investigation into the crimes committed to ensure justice is meted out. It is essential to note here that CBI is a central agency, under the direct aegis of the Prime Minister’s Office (PMO)  and there have been allegations that the violence ensuing the state of Manipur for the past three months is targeted against a minority community and is alleged to be “state-sponsored”.

On July 31, eleven days after the Supreme Court had first taken suo-moto cognizance after a video of two Kuki women being paraded naked surfaced on the internet, the SC heard a batch of petitions filed in relation to the violence in Manipur. Many essential questions were raised in the hearing today, regarding the inaction and compliance of the police with the perpetrators, the necessity of independent probe, and unprecedented magnitude of violence against women. The petitioners also dealt with the issue of taking statements from the survivors of rape and sexual violence, and the need to ensure that the survivors who come forward are protested. The Supreme Court also called for evolving a broad mechanism to deal with violence against women in violence-hit Manipur.

CJI questions police inaction, government indifference

The Supreme Court bench led by Chief Justice of India, DY Chandrachud, demanded answer from the Solicitor General of India, Tushar Mehta, regarding the inaction of the police in the incident of Kuki women being paraded naked. 

“What stood in the way of police registering the FIR immediately on May 4?” CJI asked SG Mehta, who was representing the State Government. 

To this, SG replied that May 18 was the date Zero FIR was registered. He also informed the Bench that within 24 hours of the video surfacing, seven arrests were made.

On the same, the CJI continued and asked, “Was the local police unaware that such an incident took place? And why was the FIR transferred to the Magistrate on the June 20? After one month”, as reported by LiveLaw.

Questions were raised by the bench, also comprising of Justices JB Pardiwala and Manoj Misra, regarding total number of FIRs filed during the period of ongoing violence.

“You also said there are about 6000 FIRs. What is the bifurcation? How many involve offences against women? How many involve other serious offences like murder, arson, burning down houses? What is the bifurcation between offences against body, offences against properties, offences against places of worship?” the CJI sought to know, as reported by LiveLaw.

CJI also raised concerns about the condition of victims in relief camps and emphasised the need for a compassionate system to record their testimonies. He pointed out three months have elapsed since the violence broke out and key evidence must have got destroyed in this period. 

According to CJI Chandrachud, the viral video incident cannot be viewed as a stand-alone crime and was a result of systemic violence against women. 

He stated: “There are statements by the victims that they were handed over to the mob by police. This is not a situation like ‘Nirbhaya’. That was also horrific but it was isolated. This is not an isolated instance. Here we are dealing with systemic violence which IPC recognises as a special offence. In such case, is it not important that you should have a specialised team? There is a need in the State of Manipur to have a healing touch. Because the violence is continuing unabated”, as reported by LiveLaw.

During the hearing, the court discussed the idea of forming a committee to speak with the victims and record their testimonies before beginning with criminal procedures. Regarding this, the bench sought to know the details of the extent of legal aid provided to the victims and the measures undertaken by the state and union government for rehabilitation.

The bench has asked the SG and Attorney General for India to seek guidance from the relevant authorities about the concerns highlighted by the court. 

A committee of women judges

Additionally, the top court contemplated the formation of a committee of retired woman judges to probe incidents of sexual violence against women in Manipur.

“Merely entrusting to CBI or SIT (Special Investigation Team) would not be enough. We will have to picture a situation where a 19-year-old woman who has lost her family is in a relief camp. We cannot have her going to the magistrate. We have to ensure that the process of justice goes to her doorstep. We will constitute a committee of women judges and members of civil society, who will in turn get the assistance of members of civil societies,” the court said.

The court made these remarks while hearing the Union government’s plea on transferring the case of the two women to a different state.

The hearing will be continued at 2 pm tomorrow. The details sought by the bench are also to be submitted by tomorrow. 

Submissions made by the petitioners before the Bench

Women against transfer of case to CBI: Senior Advocate Kapil Sibal:

Senior advocate Kapil Sibal appeared on behalf of the two Kuki women who were paraded naked by a mob of Meitei men on May 4, 2023. Mr. Sibal stated that the women were against the CBI probe into the case as well as the transfer of the trials to Assam. 

They (Union govt) have transferred the matter to CBI and they want to move the matter out of Assam. We’re against both”, Sibal said, as reported by Livelaw. 

As stated in the Livelaw report, Mr. Sibal raised questions on the conduct of the police in the violence that took place against the two women. He stated provided that based on the statements of the victims under Section 161 CrPC, it is clear that the “police collaborated with the perpetrators of violence”. 

“The police took them towards the crowd. First they stated that there was no ignition and then they abandoned them with the crowd. And they did what they did”, Sibal said in the court. 

Mr. Sibal also highlighted that the father and brother of one of the women were killed and their bodies are yet to be recovered. 

“One of the women- her father, brother killed. We still don’t have the bodies.”

Further highlighting the inaction of the police, Mr. Sibal stated that even though the incident took place on May 4 and a Zero FIR was registered on May 18, it was only after the video went viral and the Supreme Court took cognizance of the case did the police take action. He said that many such incidents would have happened; however, the Union Government, even today, does not know how many FIRs have been filed. “This shows the sad state of affairs”, he exclaimed, as stated in the LiveLaw report.

Mr. Sibal highlighted that the investigation must be by an agency in which the victims have confidence and which can be unbiased. He wondered how the facts supplied by the State police, which collaborated with the criminals, can be relied upon. 

Regarding the AG’s assurance regarding personal monitoring of the investigation, Sibal said, “How will the law officer or AG monitor? Monitor what?” The officers have not even informed the AG and SG how many FIRs have been registered! That’s the sad state of affairs”, as reported by LiveLaw.

Solicitor General at this juncture intervened to say that the Union Government has no objection to a Court-monitored investigation.

First thing is to build confidence: Senior Advocate Indira Jaising

Senior Advocate Indira Jaising emphasised that the women are still scarred and that it is crucial for them to be able to speak openly about their experience with others in whom they have confidence. She proposed that women who have prior experience assisting rioting victims of sexual assault be asked to speak with the victims.

“Victims of rape don’t talk about it. They don’t come out with their trauma. First thing is to build confidence. Today we don’t know that if the CBI starts investigation, women will come out. First there should be a High Powered Committee – with women from civil societies who have experience in dealing with survivors…”, she said, as reported by LiveLaw.

“How many times a rape victim has to be made to repeat her story? She has to tell it to the police, tell it to the CBI, it is an endless process”, she urged, highlighting the vicious cycle of trauma a survivor of sexual violence has to go through. 

She raised a demand for constituting a High Powered Committee, and suggested the names of Syeda Hameed, Uma Chakraborty, Roshni Goswami. She said that the above mentioned women have experience in dealing with such cases and have access to local communities there. She persuading the bench to constitute a committee of women who can interact with the victims. She suggested that this committee can then submit a report to the Court and based on that further decision can be taken.

While agreeing that the concerns raised by Ms. Jaising are “worthy of being considered”, CJI DY Chandrachud asked for her suggestions on how the process of arrest can fit in with the framework for investigation as per the CrPC. To this, Ms. Jaising replied that investigation has to be as per the CrPC, but the recording of the statements can be done by the high-powered committee. She also emphasised on ensuring that no evidence is lost during the investigation. 

SIT should look into the larger conspiracy about rapes in Manipur: senior advocate, Colin Gonsalves

Senior advocate Colin Gonsalves suggested the names of five retired DGPs that could form the SIT conducting the investigation in the said case. Gonsalves highlighted that the five DGPs named by him did not have any political connection. In his arguments, he also stressed that the officers should not be from Manipur. 

He also highlighted that the statements of the victims point out that they were with the police company before the crime happened. He alleged that the sexual crime was not an isolated event and that there was a “larger conspiracy” behind it involving police complicity.

“There is a conspiracy and it is directed by people who were not on spot. The SIT should look into not only immediate perpetrators but also the larger conspiracy about rapes in Manipur. They’re happening in a collective and coordinated fashion”, he said, as highlighted by LiveLaw.

Advocate Gonsalves also provided that there is a lack of confidence and trust associated with the investigation of the CBI as the Central Government had turned a blind eye to the plight of the people of the Manipur. 

“There is not much faith in CBI- the reason for that is that the Central government closed its eyes on Manipur. The people in Manipur, the victim, could not distinguish between State govt and Central govt- they acted in unison. Kindly consider not having CBI at all“, Gonsalves said, as reported by LiveLaw.

There has to be a SIT for confidence building: Advocate Shobha Gupta

Advocate Shobha Gupta, appearing for ‘We, the Women of India’, also submitted her suggestions to the bench. She also raised the demand for the constitution of an SIT to instil confidence in the people of Manipur to come forth with their complaints. Gupta has been the counsel for rape survivor Bilkees Bano (Gujarat, 2002).

Agreeing with Advocate Jaising’s recommendation to send a commission to meet with the victims, Gupta stated that the commission could obtain the first-hand accounts of the victims and survivors, under the auspices of the Supreme Court She further stated that the FIRs should be filed based on the testimonies of the committee so that the victims are free to avoid going to the police. 

“There has to be an SIT for confidence building measures. A team should be sent from here under aegis of SC- to meet and get victims’ first hand statements. On basis of that FIRs should be noted- we did in Delhi riots also. So victims don’t have to go to police,” she said, as reported by LiveLaw.

Ms. Gupta also emphasised on provided rehabilitation to the victims, alone with offering legal help through NALSA, and fast-tracking the trials.

She also pressed FIRs against police officers, and stated “I am pressing FIRs against police officers who were present- they actually lodged FIR saying 1000-1500 assailants had barged in village yet there was no one to protect them.”

Why would a woman come forward if the government doesn’t take any action? Advocate Vrinda Grover

Advocate Vrinda Grover, appearing for ‘Women in Governance India’, provided the Bench with more cases of Kuki women being targeted and subjected to sexual violence. She clarified that her clients have visited 163 relief camps, and she brings facts from the ground.

“Women in governance, which is a network of academics etc. have visited 163 relief camps so what I’ve mentioned are facts from ground,” Grover said, as reported by LiveLaw.

Ms. Grover informed the bench about an incident of two Kuki women being assaulted, tortured and killed in May. She further provided details regarding another incident of a gang rape of an 18 year old. 

“Two women were working at car wash in Imphal. A crowd come, tortured, murdered. Their bodies are lying in a morgue in Imphal. The families are in camps. The mother has lodged FIR, there is no one in govt who has come and said what fate of remains is. There is another girl- 18 year old, she was also gang raped. There was a zero FIR but that is where the matter stands. The matters halt at FIRs,” Grover said, as reported by LiveLaw.

Ms. Grover provided that in most of such cases, no action beyond the registration of FIR have taken places. Expressing anguished, she asked “Why would any woman tell if the police is not going to take any action?“

She emphasised that even as there are sexual crimes committed in many groups, “targeted sexual violence against Kuki women” is concerning. The Solicitor General, Tushar Mehta, objected to the said submission, stating that he is against the naming of any particular community as it could lead to more violence.

In response to this, Grover said that the crimes’ targeted aspect could not be disregarded and cited Section 376(2)(g) of the IPC, which treats rape committed during communal strife as a separate offence.

“It is essential to highlight this targeted violence…the offence is also rape committed during communal strife…we cannot turn a blind eye towards it“, she said, as provided by LiveLaw. 

She pointed out that the FIRs only invoke Section 376 IPC, although the offence of gang rape is a standalone offence under Section 376D IPC. Grover also highlighted that atrocities against Scheduled Tribes are dealt with separately under the SC/ST (Prevention of Atrocities) Act 1989. 

“In these FIRs, SC/ST sections are not mentioned, neither are the atrocities mentioned. There is specific compensation in such cases,” as reported by LiveLaw.

With this, Ms. Grover furthered her plea for SIT monitored by this court, from outside the state. Highlighting the issue of ration, she further demanded that there should be an independent, impartial report on what is the status of relief camps.

These instances show police working against victims: Advocate Nizam Pasha 

Advocate Nizam Pasha, appearing for Zomi Students Federation, informed the Bench that his application referred to fourteen instances of crimes against women, which show police complicity. 

“These instances show police working against victims- either not lodging FIRs or turning the victims to the mobs…there are acts of complicity by the police either by commission or omission“, Pasha said while urging that these instances also be transferred to the SIT, as reported by LiveLaw.

Mr. Pasha also made the following suggestions:

• One stop centres should be strengthened in Manipur by providing them with manpower and infrastructure. 
• Instead of jurisdictional magistrate, magistrate of whichever district victim located in should record statement under Section 164 of CrPC.
• Compensation must be given at the stage when 164 statement is recorded. 

The matter is expected to be now taken up after four days, not the four months that SG Tushar Mehta had requested.

Related:

Demands Unyielding: Opposition and Citizens persist in seeking PM Modi’s response on Manipur violence and Assam CM’s resignation

Behind the violence, grabbing Hill lands for palm oil manufacture: Manipur

Words of anguish resonate all-India, streets protests spill over, raising cries for justice: Manipur

Manipur Violence: Supreme Court warns union and state government to take action, or they will

Manipur Violence: Video showing 2 Kuki women being paraded naked opens the eyes of the government, PM Modi and Irani make first statements

“246 churches burnt in 2 day, somebody strong is playing games in Manipur”: Father Jacob G Palackappilly

Manipur violence: EU Parliament “denounces the nationalistic rhetoric deployed by leading members of the BJP party”

Manipur violence: SC provides interim protection in sedition case against lawyer who accompanied fact-finding team

Manipur Violence: SC bench seeks updated status report from State on rehabilitation, law & order situation

One in Manipur, another in Kashmir: Veterans slam two faces of Indian Army

Manipur is Burning but who cares?

Bishops of India must protest & speak out for peace, against injustices in Manipur & India: Jesuit priest

Denial of internet an assault on fundamental freedoms – a deep dive into Manipur’s incessant internet ban

Manipur women stage protest at Jantar Mantar to end violence in state

The Invisible Split: A report documenting reports of “ethnic cleansing” in Manipur, 2023

120 Churches destroyed, Christians insecure: Manipur

No Compensation Enough for Traumatised Kukis Fleeing Manipu

The post SC on Manipur violence: “What stood in the way of police registering the FIR immediately on May 4?” appeared first on SabrangIndia.

Written by D Y Chandrachud (Courtesy; Indian Express)

At the very outset, I extend my heartiest congratulations to the winners in all the categories of the awards presented today. Earlier today, I was browsing through the categories in which awards are presented as well as a few stories by previous winners and I must say that I am tremendously impressed by the depth and breadth of the reportage that journalists in our country engage in. To those journalists who have not won today — you are no less a winner in the game of life for yours is a noble profession. To have chosen it at all (especially when more lucrative options are available) and to continue to pursue it despite the many difficulties which arise, is admirable indeed.

As I was reflecting on the profession of law and that of journalism, it occurred to me that journalists and lawyers (or judges, as in my case) share some things in common. Of course, persons of both professions are fierce believers of the aphorism that the pen is mightier than the sword. But, they also share the occupational hazard of being disliked by virtue of their professions — no easy cross to bear. But members of both professions keep at their daily tasks and hope that one day, the reputations of their professions will receive a makeover.

The magnitude of the task that journalists face in their careers was well described by G K Chesterton, who said “Journalism largely consists in saying ‘Lord Jones is dead’ to people who never knew Lord Jones was alive”. Journalists are constantly engaged in the endeavour of simplifying complex information for the consumption of the public, which is frequently unaware of even the most basic facts underlying the issues sought to be exposed. This simplification of information must not be at the cost of accuracy, which further complicates the journalist’s job. This is true, the world over.

The media sparks debates and discussion, which are the first step towards action. All societies inevitably become dormant, lethargic and immune to the problems that plague them. Journalism (in all its forms) is one of the key aspects which prods us out of this collective inertia. The media has always played and continues to play an important role in shaping the course of current events, and by extension, the course of history itself. Recently, the #MeToo movement was sparked in part by the publication of stories concerning the accusations of sexual harassment against prominent figures in the film industry in the US. The #MeToo movement had cascading effects all across the world and was a watershed moment in history. In India, the media’s coverage of the rape of Jyoti, or Nirbhaya, by certain men in Delhi resulted in widespread protests and later, in reforms to criminal law. Even on a day-to-day basis, some news stories prompt questions and discussion in Parliament and in the legislative assemblies of states.

The media is the fourth pillar in the conception of the State, and thus an integral component of democracy. A functional and healthy democracy must encourage the development of journalism as an institution that can ask difficult questions to the establishment — or as it is commonly known, “speak truth to power”. The vibrancy of any democracy is compromised when the press is prevented from doing exactly this. The press must remain free if a country is to remain a democracy.

India has a great legacy of newspapers that have acted as catalysts of social and political change. Prior to independence, newspapers were run by social reformers and political activists in order to raise awareness and also as a means of outreach. For instance, Dr. Ambedkar launched several newspapers such as Mooknayak, Bahishkrut Bharat, Janata, and Prabuddha Bharat to create awareness about the rights of the most neglected communities in India. The newspapers and other publications of pre-Independence India also give us a picture of the detailed history of those times. These newspapers are now a source of knowledge, a historical record of the times when courageous men and women acted against the colonial rulers and fought fiercely for our independence. The newsprint voiced the aspiration of the soul, a yearning for freedom.

Many journalists, both in our country as well as across the world, work in difficult and unfriendly conditions. But they are relentless in the face of adversity and opposition. It is precisely this quality which must not be lost. As citizens, we may not agree with the approach that a journalist has adopted or the conclusions that they reach. I, too, find myself disagreeing with many journalists. After all, who amongst us agrees with all other people? But disagreement must not distort into hatred and hatred must not be permitted to evolve into violence. As you must be aware, the Supreme Court of India has emphasised on the rights of journalists in a number of judgments. In one judgment, the Supreme Court held: “India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal.”

Initially, the outreach of journalism was limited to print media, but this expanded with the introduction of television. I was taking a flight to the United States in 1982 to pursue a Master’s degree in law. Coincidentally, it was the day of the launching of colour television in India. In the recent past, social media has been a game changer for journalists in more ways than one. Online platforms have provided an opportunity to individuals to launch their own online media channels. In that way, online platforms have led to the democratisation of the media. Years ago, it was the paucity of space which was a constraining factor. Now, perhaps, it is the paucity of reader patience. Readers have short attention spans. News is reduced to shorts on YouTube or reels on Instagram.

Our attention spans have seen a steady decline with the advent of social media. It is now the norm for short tidbits of information to be conveyed through 280 characters or in a few seconds. This is, however, an unsatisfactory replacement for long-form or investigative pieces. In fact, there can be no replacement for such reportage. It is also proving to be a challenge for journalists to penetrate the echo chambers that social media has created and illuminate the truth.

Local or community-based journalism has played an important role in encouraging social cohesion and political activism. It has the ability to not only educate citizens but also to raise the little-known concerns and set the agenda for debate on those issues at the policy level. Local journalism shines a bright light on local issues, people, and causes, which many times may not get covered by the media at the national-level. As several studies have shown, the composition of mainstream media is not representative of all communities.

Community journalism opens the avenues for the members of marginalised communities to be a voice for their own issues. The emergence of social media enabled them to create their own space and come up with independent media platforms.

The relevance of the media was best highlighted during the period of the Covid-19 pandemic. Electronic, print and social media facilitated the State to disseminate relevant information to the general public at large even during the lockdown. The citizens were constantly reminded of the various precautionary as well as preventive steps which they were expected to take in order to ensure their well-being. The media highlighted administrative loopholes and excesses. Various high courts and the Supreme Court of India relied on news reports in taking suo motu cognisance of instances of violations of people’s rights during the pandemic.

I was recently asked as to which newsperson I followed with keen interest. My answer did not name a newsperson but a cartoonist – the famed late Mr R K Laxman. Although he was not a journalist, he succeeded in accomplishing the core of the journalist’s mission by holding a mirror up to the powers that be. I am sure most of India will join with me in considering Mr RK Laxman’s cartoons to be incisive and witty commentaries. He was what we call an “equal opportunity offender” — everyone stood the risk of being the subject of his cartoons and most took it in good spirit when they were ridiculed. My favourite anecdote about him was that he thought that the famous UK cartoonist David Low was actually David Cow because of the manner in which Mr Low penned his signature.

I also joked that my favourite journalist (so to speak) was the one in the Hindi movie Nayak, which was a remake of the Tamil film Mudhalvan. Those who have watched either of these know that the protagonist is a journalist who is invited to take the place of the Chief Minister for a single day. He becomes wildly popular after doing this and becomes a politician. I see some young faces in the audience today and I hope that they have not taken up journalism after watching this movie in their youth.

In recent years, we are also witnessing a rising interest in legal journalism. Legal journalism is the storyteller of the justice system, shedding light on the complexities of the law. However, selective quoting of speeches and judgments of judges by journalists in India has become a matter of concern. This practice has a tendency to distort the public’s understanding of important legal issues. Judges’ decisions are often complex and nuanced, and selective quoting can give the impression that a judgment means something entirely different from what the judge actually intended. It is thus essential for journalists to provide a complete picture of events, rather than presenting a one-sided view. Journalists have a duty to report accurately and impartially.

As with every institution, journalism is facing its own challenges. Fake news poses a serious threat to the independence and impartiality of the press in the current society. It is the collective responsibility of journalists as well as other stakeholders to weed out any element of bias or prejudice from the process of reporting events. A comprehensive fact-checking mechanism should be in place to verify all news items before reporting. Media houses are expected to act cautiously while publishing news. Fake news can misguide millions of people at once, and this will be in direct contradiction with the fundamentals of democracy which form the bedrock of our existence. Across the globe, fake news has the capability to create tensions between communities by misleading people. Therefore, to save the democratic values of fraternity which can be damaged, if not destroyed through biased reporting, there is a strong need to bridge a gap between truth and lie.

Another issue affecting the media is that of legitimacy. A diverse and representative newsroom is essential for media institutions to provide well-researched and complex stories that explore a multiplicity of perspectives and voices.

Maintaining a diverse workforce is imperative for the longevity of any media platform. This is not just about providing different perspectives and viewpoints. Media institutions need to ensure that their newsroom culture reflects the diverse news content they are producing. Otherwise, audiences may question their authenticity. Journalism ought not to be elitist, exclusionary or for that matter, a selective profession.

The post ‘Press must remain free if a country is to remain a democracy’: CJI DY Chandrachud appeared first on SabrangIndia.

The 50th Chief Justice of India, Justice D Y Chandrachud, took office on November 9. His term began at a pivotal time when the judiciary is dealing with myriad cases of violation of basic human rights and high expectations are being put on him. He holds exceptional academic credentials and attended Harvard Law School and the University of Delhi, two of the top colleges in India and the world. He has published several significant judgments and contributed to the advancement of progressive jurisprudence, particularly on matters pertaining to gender and women’s empowerment. CJI Chandrachud has been long known for his feminist and non-conforming thinking, who not only believes in voicing his dissent whenever necessary, but has shown that we, as a society, need to listen to the demands made by women and other oppressed genders. 

He has been at the forefront of efforts to safeguard the rule of law and improve access to justice. In addition to having the longest term in recent years of about two years—Justice DY Chandrachud will be the youngest CJI in the previous ten years.

As he starts his two year long tenure, some highly significant cases will probably be listed for hearing. Some of these cases are highly contested, and have been pending for more than a few years. Here is a glimpse of such potential cases:

Cases that will potentially be heard during the tenure of CJI Chandrachud:

Forest Rights Act case:

In a ruling dated February 13, 2019, the Supreme Court ordered the removal of more than 11.8 lakh tribal families and traditional forest inhabitants from their homes in 16 Indian states. Although this was purportedly done to safeguard wildlife, it was observed by many that the Court had not examined the legality of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006—the basis for the case that is currently before it.

Justices Arun Mishra, Navin Sinha, and Indira Banerjee constituted the three-judge bench of the Supreme Court which ordered state governments to evict tribal families and traditional forest inhabitants whose petitions have been denied by the appropriate authority on or before July 27, 2019. This order was later stayed in 2019 by a bench comprising of Justices ArunMishra,  Navin Sinha and M.R. Shah.

[Wildlife First & Ors. Petitioner(S) Versus Ministry of Forest And Environment & Ors., WP (C) No(s). 109/2008]

Petition challenging Anti-conversion Law

In 2020, a PIL was filed by Citizens for Justice and Peace (CJP)against the promulgated Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018, ostensibly prohibiting forceful prohibition of conversion for the purposes of marriage. In the year 2021, the Supreme Court allowed the NGO to move an application to amend its petition by including two other similar anti-conversion laws passed by Madhya Pradesh and Himachal Pradesh.

The petitioner-organization argued in the PIL that the provisions of the contested Act and Ordinance violated Article 21 of the Constitution since they gave the State the authority to restrict an individual’s personal liberty and restrict their freedom of choice and religion. The issue has not yet been listed.

Plea challenging Abrogation of Article 370 of the Indian Constitution

On August 5, 2019, the Central government declared its intention to divide Jammu and Kashmir into two Union territories and withdraw the region’s special status under Article 370. Several applications challenging the constitutionality of the statute repealing Article 370 of the Constitution, which granted Jammu and Kashmir special status, and dividing the state into two Union Territories have been submitted to the highest court. The Jammu and Kashmir Reorganization Act, 2019, was later the subject of some petitions filed in opposition to the government’s delimitation decision.

In September 2022, the Supreme Court’s bench headed by the former CJI U.U. Lalit had said that it will list the matter- challenging the abrogation of Article 370 and the bifurcation of Jammu and Kashmir into two Union Territories- for hearing after the Dussehra break. The matter is yet to be listed.

[Radha Kumar and Ora vs UOI and Ors, WP(C) 1070/2019]

Hate Speech cases

The Supreme Court will be examining two separate petitions against hateful content made during politico-religious festivities. The first case is a freshly filed public interest litigation (PIL) that has prayed for guidelines against the backdrop and political conspiracies that resulted in such hate speeches. In the PIL, advocate Harpreet Mansukhani Saigal, the petitioner has claimed that a larger conspiracy is afoot to turn India into a police state, victimising the average person in the most arbitrary and unconstitutional ways possible. .The bench comprising former CJI UU Lalit and Justice Ravindra Bhat while hearing this plea about hate speech being mixed with criminal conspiracy, had asked the petitioner to file specific instances of hate speech instead of giving a vague overview of the problem. According to the CJI Lalit, the petitioner had a legitimate argument to claim that hate speech is polluting the entire atmosphere and that it has to be stopped. The petition was last heard in October and was supposed to be listed in the month of November.

[Harpreet Mansukhani v UOI, W.P.(Crl.) No. 89/2022]

The second case, an ongoing one, now seeks to hold the police chiefs of Delhi and Uttarakhand in contempt for failing to take action against spiteful remarks made at politico-religious events in December, 2021. The Supreme Court bench of the then Justices DY Chandrachud and Hima Kohli had, on October 10, ordered the Uttarakhand Government and the Government of NCT of Delhi to file affidavits outlining the facts and the action they have taken in response to a contempt petition alleging blatant and disobedient failure on the part of the DGP, Uttarakhand Police and DGP, Delhi Police to take action with regard to hate speeches made by prominent individuals in Dharma Sansad in the State of Uttarakhand and an event organized by Hindu Yuva Vahini in the national capital. The matter was supposed to be listed in the month of November.

[Tushar Gandhi v. Ashok Kumar Contempt petition 41/2022 in WP 732 of 2017]

Extensions to Reservations in the Lok Sabha and State Legislative Assemblies

Mr. Ashok Kumar Jain filed a case against Article 334 of the Constitution, which grants reservations for the Anglo-Indian Community, Scheduled Castes, and Scheduled Tribes in the Lok Sabha and State Legislatures, before the Supreme Court in October 2000. Originally, 10 years was the maximum time frame for which reservations could be made. With the exception of the most recent revision, which eliminated reservations for Anglo-Indians in January 2020, the Article has undergone seven amendments since 1969, with each one extending the reservations for these groups by 10 years.

The Constitution (79th Amendment) Act of 2000, which acted as the fifth extension and was passed in January of that year, was challenged by Mr. Jain. According to Mr. Jain, the Amendment infringes on the basic freedom guaranteed by the Constitution to democratically express one’s choice of candidates.

On November 1, a Constitution Bench of the Supreme Court posted the pleas challenging the constitutional validity of extending political reservation granted to the Scheduled Caste and Scheduled Tribe communities in Lok Sabha and State Legislature beyond the original ten years contemplated by the Constitution, for directions, on 29th November, 2022.

[Ashok Kumar Jain v. UoI W.P. (C) No.546/200]

Challenges to Section 6A of the Citizenship Act, 1955, Assam’s National Register of Citizens and the Assam Accord

The origin of the NRC process lies in the 1985 Assam Accord entered into between the Rajeev Gandhi-led Union Government with the leaders of Assam. A part of para 5 of the Accord was given statutory recognition by Section 6-A of the Citizenship Act, 1955. Section 6A, specified a new procedure for Assamese residents to become citizens. All persons who had migrated to Assam after January 1, 1966 and before 25 March 1971 were to become citizens of India either immediately or after a period of ten years.

The Assam Sanmilita Mahasangha challenged Section 6A in November 2012 on the grounds that it discriminated against other Indian citizens by offering a separate path to citizenship to this particular group of migrants. The NRC remained dormant until an SC Bench comprising Justices R.F. Nariman and Ranjan Gogoi ordered the State of Assam to begin updating it in 2013. In December 2015, the Bench referred the challenge to Section 6A to a 5-Judge Constitution Bench.

On November 01, 2022, a Constitution Bench of the Supreme Court posted the pleas challenging the constitutional validity of Section 6A of the Citizenship Act inserted by way of an amendment in 1985 in furtherance of the Assam Accord, for directions, on 13th December, 2022. The Bench also asked the Counsel representing the parties concerned to file joint compilation of written submissions, precedents, and any other documentary material along with a common index.

[Assam Sanmilita Mahasangha & Ors v. Union of India & Ors. W.P. (C) No.562/2012]

Electoral Bonds case

The Supreme Court announced that it will list the case challenging the electoral bond scheme, which permits political parties to receive anonymous funding, on November 14, 2022. This statement was made by CJI DY Chandrachud in response to Senior Advocate Anoop Chaudhari’s reference of a new lawsuit contesting a recent regulation pertaining to an electoral bond system.

By inserting “an additional time of 15 days” for the issuance of electoral bonds “in the year of general elections to the legislative assemblies of States and Union Territories with legislature,” a new notification amended the scheme.

Two non-governmental organizations, the Association for Democratic Reforms and Common Cause, filed a petition alleging that the money bill route was used in order to avoid the Rajya Sabha, where the governing BJP government lacks a majority.

The petitioners have argued that the amendments destroyed the political funding transparency by removing the requirement for names and addresses of contributors of electoral bonds in yearly contribution reports of political parties to be filed to the Election Commission of India. The abolition of the donation cap by the 2013 Companies Act change and the 2010 Foreign Contribution (Regulation) Act amendments to Section 236 have both been contested as opening up the possibility of foreign funding for Indian political parties.

[Association for Democratic Reforms & Anr v. Union of India Cabinet Secretary & Ors., W.P. (C) No. 333/2015]

Hijab ban case

On October 13, 2022, The Supreme Court delivered a split verdict on the issue of Karnataka hijab ban. Justice Hemant Gupta dismissed the petitions against the hijab ban, while Justice Sudhanshu Dhulia allowed them, setting aside the Karnataka High Court judgment refusing to lift the ban on hijab in schools. After the split judgment, the matter will now be heard by a three-judge bench of the Supreme Court.

On December 28, 2021, six girl students of the government-run PU College in Udupi, Karnataka, were reportedly denied admission to classes because they were wearing a hijab. They protested and later filed a petition before the High Court. The hijab dispute soon spread to other places in Karnataka, too. On March 15, Karnataka High Court upheld an order by the state government that effectively empowered government colleges to ban hijab on campus. The High Court said that hijab is not a part of Islam’s essential religious practices and that requiring students to be in uniform is reasonable.

[Aishat Shifa v. State of Karnataka & Ors. [CA No. 7095/2022] and other connected matters

Sedition case

On May 11, 2022, while hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the IPC, the Supreme Court had ruled that the Centre and state governments are to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre.

A bench comprising former Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli, held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice be caused to accused.

On October 31, 2022, the SC granted more time to the Centre to take “appropriate steps” with regard to the reviewing of the colonial-era provision. The SC also took note of other petitions on the matter and issued notices to the Centre, seeking its reply in six weeks’ time.

[S.G. Vombatkere Vs Union Of India (WPC 682/2021) Editors Guild Of India And Anr. Vs Union Of India And Ors. (WPC552/2021)]

UAPA case:

The Unlawful Activities (Prevention) Act, 1967, is being challenged in Supreme Court as having “manifestly arbitrary” provisions and a very broad definition of “unlawful activity” that has a stifling impact on free expression. In this petition filed by Foundation of Media Professionals, it is argued that the UAPA’s provisions are “arbitrary and perverse, since they represent a condemnation of all democratic expression,” and that governments are abusing them “to target any and all kinds of dissent.” The foundation urged the top court to declare the UAPA unconstitutional on the grounds that it was manifestly arbitrary and violated Articles 14, 19, and 21 of the Constitution, which guarantee the rights to equality, freedom of speech, and life and liberty. The Supreme Court, which first took up the matter September 26, 2022 will be hearing the matter in November.

[Foundation Of Media Professionals & Anr V UOI & Ors W.P.(C) No. 230/2022]

Challenge against CAA:

On October 31, the Supreme Court, conducted an initial round of hearing of petitions challenging the validity of the Citizenship Amendment Act, 2019 (CAA). The bench comprising the former Chief Justice U.U. Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi subsequently posted the case for further hearing before an appropriate bench on December 6.

CAA was passed by Parliament on December 11, 2019 and it was met with protests all across the country. The CAA came into effect on January 10, 2020.

Upon being informed of the total 232 petitions challenging the CAA, and the latest affidavit filed by the Union Government has not yet been compiled and provided to all parties, the bench appointed advocates Pallavi Pratap and Kanu Aggarwal as nodal counsel respectively from the Petitioner’s and Union Government’s side, in the matter to ensure proper compilation of documents to facilitate the smooth conduct of the proceedings.

In its latest affidavit, the Union Government has opined that CAA is a limited legislation that does not affect the rights of any Indian citizen. It submits that the CAA is a “benign piece of legislation which seeks to provide a relaxation, in the nature of an amnesty, to specific communities from the specified countries with a clear cut- off date.”

[Indian Union of Muslim League and Ors. v. UoI and Ors. WP(C) No. 1470/2019]

Marital Rape:

On September 9, 2022, the Supreme Court adjourned a batch of petitions arising out of the Delhi High Court’s split verdict on the issue of criminalisation of marital rape. Two petitions arising out of the high court’s verdict came up for hearing before a bench comprising Justices Ajay Rastogi and BV Nagarathna. During the hearing, the Bench said that it would tag all similar matters together.

This follows the divided judgement from the Delhi High Court on May 11. The Court arrived to a judgment; one judge, Justice C Hari Shankar, argued for reading down the legal defense shielding husbands and wives from punishment for forcing marital sex on their wives, while the other judge, Justice Rajiv Shakdher, refused to deem it unconstitutional. However, both judges had agreed to provide the certificate of authority to appeal to the High Court because the case involves significant legal questions that the Supreme Court must resolve.

Whether IPC section 375(2)’s exclusion of marital rape from the crime of rape is unconstitutional and in violation of articles 14, 15, and 21 is the question posed by the current appeal for review before the Supreme Court.

On September 16, Supreme Court bench of Justice Ajay Rastogiand Justice B. V. Nagarathna issued notice on a batch of petitions filed assailing the split verdict of the Delhi High Court on the issue of Marital Rape. The Court agreed to hear the issue in the month of February, in the year 2023, and clubbed all the matters regarding the issue of Marital Rape pending in the Supreme Court together.

[RIT Foundation v. UOI and other connected matters]

Places of Worship case:

A writ petition under Article 32 of the Constitution has been moved in the Supreme Court which is in nature of a Public Interest Litigation seeking orders from the Supreme Court for effective enforcement of the Places of Worship (Special Provisions) Act, 1991.

The petition filed by the Jamiat Ulama-i-Hind has submitted that Muslim Places of Worship are being made the subject matter of frivolous controversies which is in clear violation of the 1991 Act and despite there being a bar such proceedings are being permitted to proceed with interim orders altering the status quo which has been maintained for ages in the Muslim Places of Worship.

The bench led by CJI Chandrachud directed the Union to file its counter-affidavit by December 12, 2022 and posted the matter in the first week of January 2023.

[Ashwini Kumar Upadhyay Versus Union of India and Ors. W.P.(C) No. 1246/2020 and connected matters]

Here is a glimpse of some landmark judgments given by CJI Chandrachud in the past-

Landmark Judgments Delivered by J. Chandrachud in the past:

National Anthem case:

“Desirability is one thing but making it mandatory is another. Citizens cannot be forced to carry patriotism on their sleeves and courts cannot inculcate patriotism among people through its order”

Justice Chandrachud has been a part of and voiced his non-conformist opinion in numerous high-profile matters after being elevated to the top court in 2016. The National Anthem controversy was one of these cases. The 2016 order requiring moviegoers to stand when the National Anthem is played was criticized by Justice Chandrachud, who claimed that no Indian needed to “wear his patriotism on his sleeve.” He had questioned when such “moral policing” would end if it were mandated that certain types of clothing should not be worn to the movies because they could be construed as disrespecting the national anthem.

[Shyan Narayan Chouksey v. Union of India & ors., WPC No. 855/2016]

Sabarimala Judgment

“To exclude from worship, is to deny one of the most basic postulates of human dignity to women. Neither can the Constitution countenance such an exclusion, nor can a free society accept it under the veneer of religious beliefs.”

In a 4:1 verdict, the Supreme Court granted women of all age groups entry into Kerala’s Sabarimala temple, breaking the temple’s age-old tradition of restricting menstruating women from entering its premises. In a majority verdict, with the lone woman judge Indu Malhotra writing the only dissent, Justice Chandrachud ruled that excluding women from worship denied “one of the most basic postulates of human dignity”.

[Indian Young Lawyers Association v. State of Kerala (2019)]

Decriminalization of Section 377

“It’s too long a period for the LGBTQ community to suffer the indignities of life”

Justice Chandrachud was on the Supreme Court bench in August 2017 when the court ruled that the right to privacy was a basic right. As a result, Section 377 of the Indian Penal Code—which made homosexuality illegal—was repealed. The court in this case observed that because sexual orientation is a biological phenomenon, any discrimination based purely on this basis would be deemed to be a violation of citizens’ fundamental rights.

On the 4th anniversary of the Navtej Johar judgment, while Speaking at an event organized by the British High Commission, CJI Chandrachud said, “Equality is not achieved only by criminalization of Section 377 of the IPC, it must be extended to all walks of life including home, workplace, public place, etc. Which we captured. While the decision in Navtej (Section 377) was significant, we have a long way to go.”

[Navtej Singh Johar v. Union of India (2018)]

Aadhaar

“The right of 1.2 billion citizens could not be tested as a mere contract with UIDAI, the Aadhaar implementation agency. Mobile phone has become an important feature of life and its seeding with Aadhaar poses a grave threat to privacy, liberty, autonomy.”

Justice Chandrachud was the sole voice of dissent in the passing the Aadhaar Act. While the court upheld the passage of the Aadhaar Act as money bill in the Parliament, Chandrachudwrote the judgment separately and mentioned that passing of Aadhaar Act as money bill was ‘fraud on Constitution’.

[K.S. Puttaswamy v. Union of India (2018)]

Bhima Koregaon case

“The grievance is that those five persons are being prosecuted for their views and their voices are sought to be chilled into silence by a criminal procedure”

Justice Chandrachud was also the only dissenting voice in the Bhima Koregaon case, wherein a plea for a probe by Special Investigation Team (SIT) was demanded into the arrest of the activists who allegedly instigated violence at Bhima-Koregaon and participated in a criminal conspiracy against Prime Minister Narendra Modi. The majority of CJI Dipak Misra and Justice AM Khanwilkar turned down the plea while Justice DY Chandrachud, was in dissent of the judgment. He upheld the rights of the five activists. In his minority opinion as a member of the bench hearing the bail plea of the activists in the Bhima Koregaon case, Justice Chandrachud wrote – “Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.”

[Romila Thapar v. Union of India (2018)]

Termination of pregnancy

In a recent landmark decision, a bench of Justices D Y Chandrachud, A S Bopanna, and J B Pardiwala ruled that unmarried women should be included in the Medical Termination of Pregnancy Act (MTP) and that their exclusion was “discriminatory.” The court panel led by Justice DY Chandrachud said that although the 1971 legislation deals with married women, the distinction between married and unmarried women is arbitrary and untenable, and it is crucial that women have the freedom to exercise their legal and safe abortion rights.

[X v. The Principal Secretary, Health and Family Welfare Department, Government of National Capital Territory of Delhi (2022)]

Hadiya marriage: ‘Love Jihad’

“When two freely consenting adults have decided to get married, can the court go into the rightness or correctness of the partner of the justness of the marriage?”

In a historic decision in 2018, a bench of Supreme Court judges – Chief Justice Dipak Misra, AM Khanwilkar and DY Chandrachud overturned a lower court’s order which had declared the marriage of Akhila Ashokan (who changed her name to Hadiya) and Shafin Jahan as ‘illegal’. The court affirmed that the freedom to decide on marriage and changing one’s faith is within one’s right to privacy and liberty while allowing the NIA to continue its investigation into the case. In his concurring opinion, Justice Chandrachud endorsed Hadiya’s autonomy “over her person” and stated that how she decided to live her life was “totally a matter of her choice.”

Before this the bench, during the pendency of the petition however had controversially brought in an agency like the NIA to verify the “claims against Hadia.”

[Shafin Jahan v. Asokan K.M (2018)]

Right to Privacy

“Life and personal liberty are inalienable rights… The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution.”

Justice Chandrachud also had to contend with several of his father’s rulings during his term. ADM Jabalpur v. Shivakant Shukla case ruling was overturned in one such instance by Justice Chandrachud, who authored the majority opinion in the 2017 privacy case. The Supreme Court’s Constitution Bench, which is made up of nine judges, ruled unanimously that the right to privacy is a basic one. The lead opinion was written by Justice Chandrachud, who emphasized how privacy was a crucial component of human dignity. The earlier judgment was described as having “serious flaws” by the current Chief Justice. The nine judges bench presiding over the judgment unanimously agreed that Right to Privacy is a fundamental right and that it is protected under Article 21 of the Constitution of India.

[K.S. Puttaswamy v. Union of India (2017)]

Passive Euthanasia

“The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life.”

According to the Supreme Court’s ruling on passive euthanasia, the right to a dignified death is a basic right just like the right to life. The highest court in India made the decision to permit passive euthanasia as a result.

According to Justice Chandrachud’s ruling, personal freedom must be protected. He added that in order to pursue happiness and uncover the purpose of life, one must have freedom, dignity, and autonomy.

[Comman Cause v. Union of India, AIR 2011 SC 1290]

Ayodhya case

Justice Chandrachud was part of a five-judge Constitution bench that on November 9, 2019 in a unanimous verdict cleared the way for the construction of a Ram Temple at the disputed site at Ayodhya, and directed the Centre to allot a five-acre plot to the Sunni Waqf Board for building a mosque. While the judgment did not bear the name of the author, many believe that it was written by CJI Chandrachud himself.

The judgement on an issue that has vexed the Indian constitutional scheme, while recognising that what happened on December 6,1992 — the demolition of the Babri Masjid— was a criminal act, granted Hindus exclusive control and rights over the contested land, where a mosque once stood.

This judgement also upheld however the Places of Worship Act, 1991 and firmly held that this law was a part of the basic structure of the Constitution.

[M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors.]

Gyan Vapi Case

The Gyanvapi case pertains to a petition by five Hindu women who have asked a local court to allow daily prayers before idols on its outer walls as well as other “visible and invisible deities within the old temple complex”. The mosque is located next to the Kashi Vishwanath temple.

The Committee of Management of Anjuman Intezamia Masjid, the organisation that has filed the appeal in the top court in the Gyanvapi case, contended that the order of the Varanasi civil court allowing a videography survey in the mosque complex violated the Act.

The bench of the then Justices Chandrachud and Narasimha had made an observation backing it. “In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered,” the court had said.

In addition to this, the then Justice DY Chandrachud had said in the court—that the Places of Worship (Special Provisions) Act, 1991 does not debar ascertainment of the religious character of a place of worship. Although it’s possible that then-Justice Chandrachud didn’t mean it that way, his remarks on ascertainment did convey the idea that Hindu communal groups have the legal right to claim any mosque. This runs counter to what the five-member bench stated in the Ayodhya decision from November 2019.

According to the 2019 Ayodhya judgment, secularism is one of the Constitution’s fundamental tenants, the Places of Worship Act preserves the secularism ideal, and our Constitution recognizes non-retrogression, which states that a privilege that has been granted cannot be reduced or revoked.

[Committee Of Management Anjuman Intezamia MasajidVaranasi Petitioner(S) Versus Rakhi Singh & Ors., Petition(s) for Special Leave to Appeal (C) No(s).9388/2022]

Conclusion

The institutional and social expectations of the court are tremendous, and the current CJI has a challenging tenure.

His tenure, after the short and successful term of CJI UU Lalit, brings more hope.

Gendering justice, personal freedom and the surveillance state are some of the issues uncompromisingly dealt with.

Time will bear witness will to determine how the story will unfold.

Related:

Six Members in the Supreme Court Collegium until May 13, 2023

Women, married or unmarried have the right to safe & legal abortion: SC

Collegium system & transparency of judicial appointments: a conundrun

SC issues notice in plea urging criminal prosecution in Dharam Sansad case

Aadhaar linking to Voter ID: Empowering voters or enabling surveillance?

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