The lawsuit was a SLAPP suit – a legal tactic used to silence critical reports and public debate. This case and several other such cases highlight the growing use of lawfare to threaten and silence media, especially independent media. Akshay Luhadia and Istela Jameel in their report, Strategic Lawsuits against Public Participation in India –An Analysis in the Context of Indian Defamation Laws, published in the NLIU Law Review discuss the threats to free speech and expressions in democracies through Strategic Lawsuits Against Public Participation (SLAPP). They highlight examples of SLAPP cases in India and the negative impact on democracy, particularly targeting minorities and women. Read their report here.

Statement on Vantara’s failed legal case against Himal Southasian

The post Vantara case against Himal Southasian dismissed by Delhi High Court appeared first on SabrangIndia.

The recent order of the Delhi High Court directing YouTuber Shyam Meera Singh to remove his video critical of Isha Foundation and its founder, Sadhguru Jaggi Vasudev, raises significant questions about the balance between free speech and the right to reputation. The court’s decision, passed as an ex-parte ad-interim order without providing Singh an opportunity to present his case, highlights the increasing use of defamation laws to curtail criticism and investigative reporting.

The court directed Google LLC (YouTube), X Corp, and Meta to remove the video from their platforms. Singh was further restrained from sharing or publishing the video in any form, and the court went a step further by barring the general public from re-uploading it. This sweeping injunction raises concerns about the breadth of judicial power in restricting digital content before a full trial.

The order states “Defendant No.4, his associates, servants, agents, affiliates, assignees, substitutes, representatives, employees and/or persons claiming through him [are restrained] from creating, publishing, uploading, sharing, disseminating, etc., the defamatory videos.”

The court justified its decision by stating that Singh’s video was based on “unverified material” and that its title was “clickbait to attract public attention.” It also noted that the video directly impacted the reputation of the Isha Foundation and its founder, stating that allegations of improper practices at the ashram harmed their public standing. However, Singh’s response highlights a procedural issue: he was only served with a copy of the defamation suit after the order had already been passed, denying him the chance to contest the allegations before the injunction was issued.

Justice Prasad also observed that Singh had made social media posts to promote the video before uploading it. The Court pointed out the need to balance free speech with the right to reputation. The order stated that “It is well settled that reputation is an integral part of the dignity of each individual and there is a need to balance between freedom of speech and freedom of expression vis-a-vis the right to reputation which has been considered as a part of the right to life under Article 21 of the Constitution of India. The video does have a direct impact on the reputation of the founder of the Plaintiff/Trust.”

The order may be viewed here.

Ex-parte orders and the right to be heard

Singh, in his response to the court order, pointed out that he was served a copy of the defamation suit only after the order had already been passed.

A statement on behalf Meera said, “…Hon’ble High Court has passed the ex parte (without giving an opportunity of hearing) ad-interim order directing that the said video be taken down. The order has been complied with. It is categorically stated that Shyam Meera Singh has been served with the copy of the suit, only after the said order was passed.”

“The said ex parte ad- interim order prima facie appears to be arbitrary and not in consonance with law. Therefore, Shyam Meera Singh is exploring all the legal remedies available before him,” it further said.

I came to know through the media that yesterday, the Hon’ble High Court passed an interim order to take down my video. I was not served with any notice nor provided with any information about this hearing. Further, I was not given an opportunity to present my side in the court. I…

— Shyam Meera Singh (@ShyamMeeraSingh) March 13, 2025

Statement on behalf of @ShyamMeeraSingh pic.twitter.com/9xtQtQrGza

— Mayank Yadav (@imayankyadav) March 12, 2025

This raises a crucial issue: the principle of audi alteram partem, which guarantees the right to be heard before an adverse order is issued. While courts can grant ex parte relief in exceptional cases where immediate harm is evident, it is difficult to see how this case justified such urgency. The Isha Foundation’s claim that the video was uploaded two days before Maha Shivratri to create a public controversy does not, in itself, establish the kind of imminent harm that would warrant bypassing Singh’s right to respond.

Defamation cases, particularly those involving public figures or organisations of significant influence, require careful judicial scrutiny. Courts have historically recognised that public figures are subject to higher levels of criticism and scrutiny. In this case, the Isha Foundation is a well-known institution with considerable public influence, making it all the more important for the judiciary to ensure that Singh’s right to critique its activities is not unduly curtailed.

Balancing reputation and free speech

The court’s rationale—that the video’s contents “directly impinge upon the reputation of the Plaintiff in the eyes of the general public”—raises broader concerns about how defamation laws are applied. Reputation is undoubtedly a significant right, but it must be weighed against the fundamental right to freedom of speech and expression, especially when the subject matter concerns public interest.

In India, the Supreme Court has repeatedly affirmed that the right to reputation, while important, cannot be used to shield public figures from criticism. In Subramanian Swamy v. Union of India (2016), the Court upheld criminal defamation but also emphasised that the right to reputation should not be invoked to silence fair criticism. The present case, however, suggests a broad interpretation of defamation that could have a chilling effect on investigative reporting and critical journalism.

Implications for digital journalism and public discourse

This is not the first instance of judicial intervention affecting Singh’s content. In January 2025, the Delhi High Court ordered him to remove a video about Dera Sacha Sauda chief Gurmeet Ram Rahim Singh, citing prima facie defamation. In that case, however, the court allowed Singh to upload a new video with a disclaimer stating that its contents were sourced from a trial court judgment and a book. The difference in approach between the two cases underscores the need for clear judicial guidelines on how courts handle online defamation claims.

The broader concern is the potential chilling effect on digital journalism. If courts continue to grant takedown orders before assessing the validity of defamation claims, independent journalists and content creators may become hesitant to investigate or report on powerful figures and institutions. Such orders, even if later reversed, can discourage critical reporting due to the financial and legal burdens involved.

Related:

The murder of Raghvendra Bajpai: A chilling reminder of the dangers faced by journalists in India

SC’s denial of bail to journalist Rupesh Singh once again showcases how the Court looks at bail under UAPA, with varying consistency

Indian Newspaper Day: Journalists’ Groups Demand Independent Media Commission

Baster Journalist killing: UNESCO condemned the killing of Mukesh Chandrakar

The post Delhi High Court’s takedown order against Shyam Meera Singh’s video on Isha Foundation raises free speech concerns appeared first on SabrangIndia.

I. Brief history of rape law

Justice Rajiv Shakdher begins his judgment with a historical overview of rape law, emphasising the evolution of the concept of marital rape. He notes that the origins of the Marital Rape Exception (MRE) can be traced back to the doctrine of coverture, which held that a married woman’s legal rights were subsumed by her husband’s. This historical context is crucial for understanding the archaic nature of the MRE, which Justice Shakdher describes as being rooted in a time when women were treated as mere property of their husbands.

II. Separation of powers and judicial restraint

Justice Shakdher addresses the argument that the judiciary should not interfere with legislative decisions, particularly in matters of criminal law. The counsel for one of the intervenors—Men’s Welfare Trust— had argued that if the court were to exercise the powers under Article 226, and strike down MRE, it would have carried out a legislative act thus blurring the Doctrine of Separation of Powers.

Justice Shakdher first establishes via rich case law that in India, the separation of powers is not as rigid as it is in other jurisdictions. Having established it as such, he essentially states that the doctrine does not preclude the judiciary from examining the constitutionality of laws to legislate but to ensure that laws are in compliance with the Constitution (Para 123).

His reasoning behind the court’s power to address the constitutionality of the MRE—against the argument that the Court cannot legislate—is simple and to the point. He states that Article 13 empowers courts to declare void any laws that contravene Part III (Fundamental Rights). Therefore, according to Justice Shakdher, the court’s power includes, as in this case, the authority to deem a law or provision unconstitutional. He states as follows: “The submission that the issues involved concern a policy decision which, in turn, requires wide ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman’s fundamental rights conferred under the Constitution.” (Para 125)

Justice Shakdher rejects the notion that judicial restraint should prevent the court from examining the constitutionality of the MRE. To let it be handled by legislature which actually has the means to conduct consultations with a diverse set of stakeholders, it is not an economic/policy issue. According to him, it is a legal issue with alleged violations of fundamental rights and “Side-stepping such issues would be akin to the court seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide.” (Para 127)

III. Ambit of section 375 of the IPC-Article 14 Test

Justice Shakdher analyses Section 375 of the Indian Penal Code (IPC), which defines rape. He emphasises that rape’s unlawfulness hinges on whether sexual acts were consensual. Section 375’s Clauses (a)-(d) ignore marital status. They apply to all forced sexual acts, except when the offender is a husband. Similarly, married women cannot file criminal charges against their husbands under these clauses. (Para 135.2)

Justice Shakdher identifies consent as central to Section 375. He then examines the Marital Rape Exception (MRE), which treats married and unmarried individuals differently. He concludes MRE violates Article 14 of the Constitution. Why? He applies the Article 14 test: a law’s “intelligible differentia” (clear distinction) must rationally connect to its object. MRE’s marital distinction, he argues, has no rational nexus to Section 375’s goal of criminalizing non-consensual acts. (Para 137.1)

Instead of treating MRE and Section 375 as separate, the judgement treats MRE against Section 375’s core objective. He finds MRE fails this test, as it exempts husbands from liability without justification.

Justice Shakdher’s reasoning behind striking down the Marital Rape Exception (MRE) is compelling not just for its legal soundness but also for the sheer weight of real-life examples he brings forth. His judgement does not merely counter Justice Hari Shankar’s argument that marriage creates a sexual expectation—it systematically dismantles the sexual expectation argument by highlighting multiple instances where a married woman is denied agency over her body, even in situations where fundamental rights to dignity and health should prevail.

One of the most striking aspects of his judgment is his reference to instances where a married woman’s lack of consent is disregarded: when her husband has a communicable disease, when she is unwell, or when the husband is involved in gang rape with co-accused. These examples puncture holes in the argument that marriage inherently implies perpetual consent. As he illustrates:

• Forced sex outside marriage is recognised as “real rape,” yet the same act within marriage is deemed something else.
• A chaste woman or a young girl is more likely to be considered a victim, but a married woman is not.
• A prior sexual relationship is regarded as a reasonable defense on the assumption of consent, yet a married woman’s consent is not even put to test.
• A sex worker has the legal right to refuse sex, but a married woman does not.
• In cases of gang rape where the husband is involved, the co-accused faces the full force of the law, while the husband is exempt merely due to his marital status.
• A married woman has no legal protection even when her husband has a communicable disease or when she herself is unwell. (Para 137.1)

However, Justice Shakdher’s judgement does not stop with disproving the idea of absolute and perpetual sexual expectation in marriage. It goes a step further, challenging the very notion that the State has a legitimate interest in protecting a marriage that functions as a site of tyranny. His judgment is uncompromising in its stance that when husbands are raping their wives, the law cannot seek to preserve such a structure. In his words:

“When marriage is tyranny, the State cannot have a plausible legitimate interest in saving it.” (Para 137.1)

This statement alone renders MRE indefensible under Article 14. The classification between married and unmarried women is not just arbitrary but actively unjust. He applies the test of reasonableness from Slattery v. Naylor (1888) and Kruse v. Johnson (1898), concluding that MRE is manifestly unjust and oppressive. He states:

“If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for lawmakers could never have intended to make such a law.” (Para 138)

Justice Shakdher critiques the over-reliance on the test of classification, arguing that courts must go beyond rigid categorisation and examine how a law actually operates on the ground. The real effect and impact on those subjected to it must take precedence over remote or indirect consequences, his judgement states, relying on Anuj Garg & Ors. v. Hotel Association of India & Ors.^[2] The Doctrine of Classification must ultimately serve the core principle of equality, not override it. (Para 140)

Applying this to MRE, he highlights its immediate and glaring impact: an unmarried rape survivor can seek protection under various IPC and CrPC provisions, but a married woman is denied the same safeguards. She cannot benefit from identity protection (Section 228A IPC), medical examination provisions (Sections 53A, 164A CrPC), gender-sensitive trial procedures (Sections 26, 154, 161, 309 CrPC), in-camera trials (Section 327 CrPC), or mandatory medical aid (Section 357C CrPC).

He states as follows while declaring the MRE to be violative of Article 14 of the Constitution:

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution.” (Para 141.1)

IV. On other arguments

Justice Shakdher dismantles the argument that MRE is justified because other IPC provisions are also relationship-based. He clarifies that while some laws exempt spouses from prosecution (e.g., Sections 136, 212, 216, 216A IPC), these apply only to harboring offenders, not committing offenses against a spouse. MRE, however, shields the husband precisely because he is the perpetrator, making the comparison fundamentally flawed.

He also rejects the claim that married women have alternative legal remedies under IPC and other statutes. Section 498A (cruelty), Section 304B (dowry death), and Section 306 (abetment of suicide) do not address rape—they deal with specific forms of abuse. Even the Domestic Violence Act (D.V. Act), while recognizing sexual abuse, does not criminalize marital rape. Instead, it provides civil remedies like protection orders and financial relief but denies the survivor the ability to prosecute her rapist husband under Section 376(1) IPC.

The result? The judgement points out to a glaring legal loophole where a wife can report every other crime committed by her husband except rape. This exposes the hollowness of the claim that existing laws protect married women against sexual violence.

V. MRE violates Article 21 of the Constitution

Justice Shakdher asserts that the MRE violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. He argues that the MRE undermines a woman’s right to bodily integrity and autonomy by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

Justice Shakdher states, “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”  (Para 163)

Therefore, denying a married woman the right to legally recognize rape by her husband strikes at the core of her right to life and liberty under Article 21.

VI. MRE Violates Articles 15 and 19(1)(a) of the Constitution

Justice Shakdher also examines the MRE’s impact on Articles 15 and 19(1)(a) of the Constitution, which guarantee protection from discrimination and the right to freedom of expression, respectively. He argues that the MRE perpetuates gender discrimination by treating married women differently from unmarried women.

Justice Shakdher states, “The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband.”  (Para 166.1)

VII. Presumption of constitutionality of pre-constitutional statutes

The judgment addresses the presumption of constitutionality concerning pre-constitutional laws like the IPC, asserting that such laws are not immune from constitutional scrutiny. While Article 372 saves pre-constitutional laws, it does not shield them from being tested against fundamental rights under Articles 14, 15, 19(1) (a) and 21.

The judgment acknowledges the argument from Navtej Singh Johar vs Union of India and Joseph Shine that pre-constitutional statutes do not enjoy an inherent presumption of constitutionality.[3]

Further, the judgement emphasizes the evolving nature of constitutional interpretation. Relying on Anuj Garg, it holds that laws, even if constitutional at inception, can become unconstitutional due to societal changes. Thus, outdated legal provisions must be reassessed to align with contemporary constitutional values. (Para 172.1)

VIII. Foreign decisions, international covenants, and Indian parliamentary reports

The judgment pushes back against objections to relying on foreign decisions and international covenants, pointing out that legal systems worldwide have already moved past the idea that marriage grants immunity from rape. Cases like CR v. UK (ECHR) and People v. Liberta (New York Court of Appeals) make it clear that the marital rape exemption has no place in modern law. Courts in Nepal and the Philippines have also ruled that forced sex in marriage is still rape, reinforcing that consent does not become irrelevant after marriage.

It recognises the importance of international conventions like CEDAW and the Beijing Declaration emphasize gender equality and protection against sexual violence, making it clear that MRE goes against India’s global commitments. Courts in India have previously used international law to interpret domestic statutes, and the judgment follows that precedent.

As for parliamentary reports, multiple committees—including the Justice Verma Committee—have called for scrapping MRE. The fact that the legislature hasn’t acted doesn’t mean courts can’t step in. Navtej Singh Johar made it clear that legislative inaction is a “neutral fact” and doesn’t block judicial review.  The judgement recognises this and follows the same principle.

IX. On miscellaneous issues

Conjugal expectations and marital rights

The judgment critiques the notion of “conjugal expectation,” clarifying that while legitimate during a harmonious marriage, it cannot equate to an unfettered right to non-consensual sex. It references Section 9 of the Hindu Marriage Act (HMA) and Order XXI Rule 32 of the Civil Procedure Code (CPC), noting that even restitution decrees for conjugal rights cannot mandate consummation. The law must respect marital consent, not impose obligations. (Para 146)

Marriage as an institution vs. individual rights

The judgment rejects the argument that excluding marital rape from Section 375 IPC protects the institution of marriage. It emphasizes that marriage is a union of individuals rooted in mutuality, respect, and autonomy. When these principles are violated, the institution collapses. The state’s role is limited to recognizing/dissolving marriages via laws like the HMA, Domestic Violence Act (D.V. Act), and IPC provisions (Sections 375–376B), not shielding perpetrators of sexual violence (Para 148.3).

Labeling marital rape as “rape”

The judgment argues that sexual assault by a husband falling under Section 375 must be labeled as rape to reflect societal disapproval. It critiques societal stigma against victims, not perpetrators, and dismisses the distinction between marital rape and other IPC offenses (e.g., hurt under Sections 319–323, cruelty under Section 498A). Labeling is critical for legal accountability. (Para 149)

False cases and empirical evidence

The judgment refutes fears of false cases, citing National Family Health Survey (NFHS-4) 2015–16 data showing 99% of sexual assaults go unreported. It dismisses the argument as exaggerated, noting courts handle false complaints under IPC provisions like Section 498A (Para 151). The state’s interest in protecting women from abuse outweighs unfounded concerns about misuse.

Here too, we can see the contrast in Justice Rajiv Shakdher’s judgement and Justice Hari Shankar’s judgement in terms of reliance on data. As mentioned in our analysis of Justice Harishankar’s judgement, his analysis lacks empirical data or backing of scholarly work when he asserts that rape by a stranger and non-consensual sexual activity by a husband are not equal in the terms of the psychological trauma they inflict on the woman.

Invasion of the private sphere

The judgment rejects claims that prosecuting marital rape invades private marital space. It distinguishes rape from other marital crimes (e.g., cruelty, hurt) by emphasizing constitutional rights. Citing Joseph Shine vs Union of India (2018), it holds that privacy cannot shield rights violations, and marital intimacy is not exempt from constitutional scrutiny (Para 152).[4] The judgment dismisses arguments about evidentiary difficulties, equating marital rape to other private-space crimes. 

Conclusion

Justice Rajiv Shakdher’s judgment in RIT Foundation is a masterclass in constitutional adjudication, dismantling the marital rape exception (MRE) not merely as a legal anomaly but as a moral affront to India’s republican ethos. By anchoring his analysis in the lived realities of women—where marriage becomes a license for tyranny—he transcends abstract doctrinal debates to expose the MRE’s core flaw: its reduction of women to chattel, stripped of autonomy, dignity, and bodily integrity.

Justice Shakdher’s reasoning is a rebuke to judicial timidity. He rejects the facile argument that courts must defer to legislative “policy choices,” reminding us that the judiciary’s duty is to safeguard fundamental rights, not shield regressive laws from scrutiny. His invocation of Article 13—declaring unconstitutional any law that violates Part III—is a clarion call for courts to actively engage with societal evolution, rather than entombing themselves in the formalism of “separation of powers.”

The judgment’s brilliance lies in its refusal to treat marriage as a sacred cow. It dissects the MRE’s “conjugal expectations” myth, revealing it as a fig leaf for systemic misogyny. By contrasting the legal protections afforded to unmarried rape survivors with the abject denial of justice for married women, it lays bare the MRE’s arbitrary cruelty.

Yet, Justice Shakdher’s verdict is more than a legal victory; it is a philosophical manifesto. His assertion that “when marriage is tyranny, the State cannot have a legitimate interest in saving it” challenges the very premise of a legal regime that prioritizes familial “stability” over individual rights. This is not merely about criminalizing marital rape—it is about redefining marriage itself as a partnership of equals, not a hierarchy of domination.

In contrast, Justice Hari Shankar’s deference to legislative inaction and his elevation of marriage as an institution above constitutional rights represent a jurisprudential throwback, clinging to a vision of the law as a tool for social control rather than liberation. The split verdict, therefore, is not merely a clash of legal opinions but a microcosm of India’s broader struggle between tradition and transformation.

Justice Shakdher’s judgment is a testament to the Constitution’s living spirit—a reminder that rights are not mere parchment promises but living guarantees that demand constant vigilance. By striking down the MRE, he does not merely correct a legal wrong; he reaffirms the judiciary’s role as the Constitution’s moral compass, ensuring a future where no woman’s body is subjected to patriarchal entitlement. In doing so, he invites us to reimagine justice not as a compromise between competing interests, but as an uncompromising commitment to human dignity.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

Related:

D*ck or fist

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative appeared first on SabrangIndia.

Background of the case

This case revolves around the arrest of Marfing Tamang under FIR No. 157/2024, registered at P.S. Kamla Market, Delhi, under several provisions of the IPC and the Immoral Traffic (Prevention) Act, 1956.

The petitioner was accused of managing an establishment involved in sexual exploitation and benefiting financially from such activities. The police alleged that the establishment functioned as part of a larger network engaging in trafficking and forced prostitution.

On May 17, 2024, the petitioner was detained and subsequently arrested at 6:30 p.m. He was initially placed in police custody for two days before being remanded to judicial custody for 14 days. The core contention in the case was whether the procedural safeguards under Section 50 CrPC were adhered to. Specifically, the issue was that the grounds of arrest were not communicated at the time of the arrest but instead were served later, after the remand application had been filed. The petitioner argued that this violated his fundamental rights and due process under the law, making the arrest illegal. The court was called upon to determine whether this procedural lapse warranted the quashing of the arrest and remand orders.

Issues

1.  Whether the phrase “forthwith”under section 50 CrPC mandates immediate communication of grounds of arrest.
2.  Whether the delay in serving the grounds of arrest invalidates police custody and judicial remand.
3.  Whether discrepancies in the grounds of arrest mentioned in the remand application and those later served affect the legality of the arrest.

Court’s observations

• The court distinguished between “forthwith”in section 50 CrPC and “as soon as may be”under PMLA. It held that “forthwith” means immediate and simultaneous communication of arrest grounds at the time of issuing the arrest memo.

“..the word ―forthwith‖ appearing in section 50 Cr.P.C. must be interpreted strictly, meaning thereby that the grounds of arrest or the grounds for arrest must be communicated to an arrestee immediately and without delay.” (Para 30.6)

• The court held that the failure to inform the petitioner of the grounds for arrest at the time of his detention amounted to a direct violation of his constitutional rights under Article 22(1) and procedural safeguards under Section 50 CrPC.

“Accordingly, in the opinion of this court, the arrest of the petitioner is vitiated for non-compliance with the mandate of section 50 of the Cr.P.C. and Article 22(1) of the Constitution.” (Para 32)

• The court emphasised that the grounds of arrest must not only be communicated in writing but must be done in a timely manner that allows the accused to prepare for legal representation.

“Once the grounds for requiring a person’s arrest have been formulated in the investigating officer‟smind, there can possibly be no reason why those grounds cannot be reduced into writing and communicated to the person simultaneously at the time of arrest.” (Para 30.8)

• The court reiterated that the Magistrate erred in ruling that serving the grounds of arrest just before the remand hearing was sufficient compliance, as meaningful legal representation requires adequate notice.

“This was clearly an erroneous interpretation and application of the law by the learned Magistrate, since furnishing the grounds of arrest in writing just about an hour before the remand hearing in the present case, cannot possibly be due or adequate compliance of the requirements of section 50 Cr.P.C., which mandates that grounds of arrest must be communicated to an arrestee forthwith that is to say simultaneously and immediately upon the arrest of such person.” (Para 34)

• The remand order dated May 18, 2024 was set aside as it did not comply with the requirements of Section 50 CrPC, rendering the petitioner’s continued detention unlawful.

“In order to bring abundant clarity in the matter, this court would also observe that sufficient time must given to an arrestee after the grounds of arrest have been served upon him in writing, to enable the arrestee to engage and confer with legal counsel, the test being that the arrestee must have meaningful opportunity to resist his remand to police custody or judicial custody.” (Para 36)

Accordingly, remand order dated 18.05.2024 also stands vitiated and is set-aside. (Para 37)

• The court reaffirmed the significance of procedural compliance in arrests, underscoring that any deviation from statutory mandates weakens due process and constitutional protections.

“In light of the above, without addressing the controversy as to whether the petitioner stood deprived of his liberty once he reached the police station at 11:30 a.m. on 17.05.2024, there can be no contest that the petitioner was formally arrested when the arrest memo was issued to him i.e., at 06:30 p.m. on 17.05.2024. In compliance of section 50 of the Cr.P.C., as interpreted above, the I.O. was required to serve the grounds of arrest upon the petitioner simultaneously with the issuance of the arrest memo. This was admittedly not done.” (Para 31)

How this judgment can be applied for the advancement of human rights

This judgment establishes a strong precedent for safeguarding human rights, particularly in the realm of criminal justice and due process. By mandating immediate communication of the grounds of arrest, it ensures that accused individuals are not deprived of their fundamental rights arbitrarily. This ruling upholds the principle that legal processes must be transparent, ensuring that law enforcement agencies strictly adhere to procedural requirements.

Additionally, this case reinforces the necessity of allowing accused persons adequate time to prepare their legal defence. Ensuring that legal representation is meaningful rather than a mere formality is crucial for upholding the right to a fair trial. The judgment highlights the importance of compliance with constitutional safeguards under Article 22(1) and procedural mandates under Section 50 CrPC, making it clear that any deviation from these principles weakens the integrity of the justice system.

Beyond individual rights, this ruling has broader implications for the protection of vulnerable communities. It prevents law enforcement from abusing detention powers and sets a precedent for judicial intervention when fundamental rights are violated. This judgment can serve as a tool for human rights advocates to challenge unlawful detentions and ensure accountability in law enforcement practices.

By reinforcing procedural compliance and transparency, the ruling contributes to the larger framework of human rights jurisprudence, emphasising that the rule of law must prevail over arbitrary actions by the state. It strengthens the principle that liberty is a fundamental right that cannot be curtailed without adhering to established legal norms, thereby protecting individuals from unjust state actions.

The judgment in the case of Marfing Tamang v. State (NCT of Delhi) delivered by Anup Jairam Bhambhani J, Delhi high court on 4th Feb 2025 may be read here:

(The Legal research team of CJP consists of lawyers and interns; this judgement primer has been worked on by Shailendar Karthikeyan)

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Democracy can never be a police state: Supreme Court

The post Delhi high court strikes down illegal arrest: Reaffirms the right to immediate disclosure of grounds of arrest appeared first on SabrangIndia.

Earlier, the Court had granted interim protection from arrest. During the hearing, Khan’s Senior Advocate Kapil Sibal assured the Court that Khan had been cooperating with the investigation and would continue to do so. Sibal raised concerns over potential harassment by the police under the guise of investigation and objected to the police’s demand for access to Khan’s phone.

Justice Singh, while recognizing the concern, affirmed the police’s right to investigate.

Background

An FIR (No. 280/2024) was filed against activist Nadeem Khan on November 30 at Shaheen Bagh Police Station under sections 196/353(2)/61 of the BNS, 2023. According to the FIR, a sub-inspector (SI) on patrol duty was alerted by “secret sources” about a video circulating on social media. The video was reportedly inciting strong anger among local residents and had the potential to provoke violence. The FIR alleges that a video titled “Records of Hindustan in Modi Sarkar,” posted on the “Akram Official 50” YouTube channel on November 21, depicted an individual at an exhibition booth gesturing towards a banner. The video reportedly mentioned names like Nadeem Khan, Akhlaq, Rohit Vemula, and Pehlu Khan, while also referencing the 2020 Shaheen Bagh protests and the Delhi riots. The FIR claims that the video portrayed a specific community as victims and attempted to incite unrest.

Following this, a non-bailable arrest warrant was issued against Khan. However, on December 3, the Delhi High Court granted him interim protection from arrest until December 6. Justice Jasmeet Singh, during the hearing, directed Khan to cooperate fully with the investigation and to join the ongoing probe. Furthermore, Khan was instructed not to leave the National Capital without the permission of the Investigating Officer.

During the December 3 hearing, when the Delhi Police counsel informed the court that Khan had contacted various individuals, including lawyers, when the officials attempted to arrest him, Justice Singh made an oral remark:

“That can’t be a reason to arrest him. Anybody who’s getting arrested calls people no? Where is the question…how do you go to Bangalore? You say, you go in police uniform in Bangalore to arrest him. How do you do that?

The court said that, “Please understand, we are in a democratic country. The harmony of our nation is not so fragile. It is not so fragile that merely one exhibition, merely someone shouting, it cannot be. Consider people as intelligent…You repose very little faith in the common man. Common man is intelligent. Common man isn’t so fragile that merely one exhibition will”

“We are living in a democratic country. The country places great pride in our fundamental rights. Article 19(1)(a) is to be protected. If you think that a common man will get incited by this, the common man doesn’t have the IQ to understand what is right for them… we are intelligent people. Please have some faith in the common man” the Court further remarked. As Live Law Reported.

Khan framed narrative portraying “particular community” as govt victims: Delhi Police

According to Live Law, the Delhi Police informed the Delhi High Court that civil rights activist Nadeem Khan, through “targeted dissemination of selective and misleading information,” sought to create a narrative portraying a “particular community” as victims of “systematic oppression” by the government.

The police stated, “This selective portrayal is not only factually distorted but appears to be calculated to evoke feelings of victimization and persecution within that community. Such actions suggest a deliberate attempt to provoke discontent and unrest, amounting to a larger conspiracy aimed at undermining communal harmony and public order.”

In its affidavit, the Delhi Police also claimed that Khan was evasive during his December 5 interrogation. It revealed that the “exhibition” organized by “Jamaat-e-Islami Hind,” where the alleged video was recorded at the APCR stall, was entirely managed and controlled by him.

Delhi High Court shielded Khan from arrest and quashed no-bailable warrant

On December 11, in a petition filed by Nadeem Khan under section 528 of BNSS, 2023 seeking quashing of order issuing non-bailable warrant and the proceedings emanating therefrom in FIR No. 280/2024, Justice Jasmeet Singh of Delhi High Court quashed the warrant and provided protection from arrest to civil rights activist Nadeem Khan.

Justice Singh also directed that, should the Delhi Police require Khan’s custody, they must provide a seven-day advance written notice. The Delhi Police assured the court that Khan would not be arrested, and if custodial interrogation became necessary, they would notify him in advance.

Delhi Police conducted raid at Delhi office of APCR on November 29

Earlier, on November 29, Delhi Police conducted a raid at the Delhi office of the Association for Protection of Civil Rights (APCR). The next day, on November 30, the police attempted to detain Nadeem Khan at his brother’s residence in Bengaluru. The raid and detention attempt were reportedly triggered by social media posts, particularly from a Twitter user named “Mr. Sinha.” The police action followed an exhibition organized by the APCR, which attracted attention from right-wing groups on social media, who have previously targeted Khan due to his vocal criticism of police brutality and state involvement in mob violence.

In response, the People’s Union for Civil Liberties (PUCL) condemned the police actions, describing them as part of a targeted witch-hunt against Khan. PUCL expressed concern over the harassment, which they believe was instigated by certain social media accounts, labelling it an attack on human rights activism.

Human Rights Watch condemned the Delhi Police raid

International Human Rights Body, Human Rights Watch strongly condemned the November 29, 2024, raid by Delhi police on the offices of the Association for Protection of Civil Rights (APCR). In a statement, HRW expressed concern that the Indian government is actively seeking to silence voices critical of its policies and those who offer assistance to individuals targeted by politically motivated investigations. HRW’s Pearson stated, “The Indian government appears determined to silence voices that speak out against its abusive practices as well as those who provide assistance to people facing malicious investigations.”

The organization further said that by punishing individuals for exercising their right to free expression, the government is not silencing dissent but rather adding to the growing list of human rights violations in the country. This raid highlights a troubling effort to stifle criticism and further marginalized groups defending the rights of minorities and vulnerable communities in India.

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The post Delhi High Court grants protection to activist Nadeem Khan from arrest appeared first on SabrangIndia.

The sixth Schedule to the Constitution provides for implementation of specific measures to have an autonomous administration in tribal areas to protect the rights and identity of locals. At present, it is applicable only to Assam, Meghalaya, Tripura and Mizoram in northeast India. Few months ago,  Wangchuk had been on a prolonged hunger strike to press for his demands which also include environmental protection in Ladakh. Last month, Wangchuk and others began the foot march to national capital.

In a questionable late night operation, before either he and other activists could enter the national capital, Delhi Police detained them. The foot march was scheduled to end at Rajghat on Gandhi Jayanti to mark the birth anniversary of the father of the nation on October 2.

Late last night, at 10.30 a.m. here is what Sonam Wangchuk said on X (formerly twitter):

I AM BEING DETAINED…
along with 150 padyatris
at Delhi Border, by a police force of 100s some say 1,000.
Many elderly men & women in their 80s and few dozen Army veterans…
Our fate is unknown.
We were on a most peaceful march to Bapu’s Samadhi… in the largest democracy… pic.twitter.com/iPZOJE5uuM

— Sonam Wangchuk (@Wangchuk66) September 30, 2024

“I am being detained..along with 150 padyatris at Delhi Border, by a police force of 100s, some say 1,000. Many elderly men and women in their 80s and some Army veterans…Our fate is unknown. We were on a most peaceful march to Bapuy’s Samadhi..in the largest democracy in the world, the mother of democracy…Hey Ram.”

Echoing Gandhi’s last words as he was felled by the bullets of assassin Nathuram Godse, Wangchuk’s arrest has drawn widespread condemnation on social media. The legacy print media have played it down, however.

The petition for their release was mentioned before the Bench of Chief Justice Manmohan and Justice Tushar Rao Gedela by advocate Vikram Hegde. However, an urgent hearing of the plea was declined. It is now likely to come up for hearing on October 3.

Apart from seeking the release of Wangchuk and others, the plea has also sought directions for permitting the activists to enter Delhi “for the purpose of raising their demands peacefully”.

“Permit the group of persons, including senior citizens, led by Mr Sonam Wangchuk to assemble peacefully in a designated area,” the plea states.

The advocate who filed it is Mustafa Haji, who has stated that he has been closely involved with the movement for environmental protection and democratic representation in Ladakh. “A group of about 150 persons started on a foot march (pad yatra) from Leh to Delhi on 01.09.2024. The purpose of their march is to make a representation to the Union Government in Delhi on the occasion of Gandhi Jayanti, inter alia seeking environmental protection, sixth schedule status for Ladakh, Statehood and greater democratic representation,” the plea states.

Incidentally, as news of the peaceful march picked up on social media the Delhi police was quick to act, repressing freedoms. The prohibitory order issued by Delhi Police on September 30 against assembly of five or more persons has also been challenged in the plea.

Related:

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The post Delhi High Court Petition against detention of Ladakh climate activist Sonam Wangchuk appeared first on SabrangIndia.

While stating on record that the blocking order was unjust, X supported HW’s request that the social media account be unblocked, objecting the Centre govt order to blocking the account on multiple grounds. ‘X’ has also expressed willingness to restore Hindutva Watch’s account. X in its reply before the Delhi High Court stated that the impugned order of qualify the requirement of section 69A of the IT Act, 2002.

X also submitted before the court that the Central govt’s order also violates the Supreme Court’s decision in the Shreya Singhal vs. Union of India, (2015) 5 SCC 1, relating to restrictions on online speech, held as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.

Background

This year in January, 2024, the ‘X’ account of Hindutva Watch, a hate-crime tracker in India, was blocked by the social media giant ‘X’ after the Ministry of Electronics and Information technology (MeitY) issued a notice listing several accounts that the government intended to block as it had the “the potential to incite violence and disrupt public law.” This list also included the account of HW (@HindutvaWatchIn).

In compliance with the government’s direction, in January, 2024, ‘X’ withheld the account of Hindutva Watch, stating that the action was being taken in response to a legal demand.

Raqib Hameed Naik, Founder of Hindutva Watch filed a writ petition Raqib Hameed vs Union of India, [Writ Petition (Civil) 6023/2024] in the Delhi High Court in April, 2024 against the blocking of account @HindutvaWatchIn and challenged the MeitY blocking order.

According to Bar and Bench, X said that it objected to MeitY notice, claiming that @HindutvaWatchIn’ did not fall within the grounds specified under Section 69A of the Information Technology Act, 2000 (IT Act) and that the MeitY flagged the posts as inciteful without basis.

X said that despite their objection, the Ministry issued a blocking order directing ‘X’ to block HindutvaWatchIn. X reverted with an objection letter, stating that the blocking order was issued in violation of Articles 14 (Right to Equality) and 21 (Right to life and personal liberty) of the Indian Constitution and Section 69A of the IT Act. In objection letter, ‘X’ mentioned that the blocking order would disproportionately affect the user’s rights. But the Ministry not responded on this.

Blocking order was “without basis” and “disproportionate”

The social media giant X has submitted in its reply that the Modi government’s blocking order against Hindutva Watch is without basis and disproportionate. X further added that the blocking of the Petitioner’s entire Account, as opposed to specific posts, was disproportionate and did not constitute the “least intrusive measure” as mandated under law.

X notes that the blocking order “disproportionately affect the user’s rights” because it prevents the user from using X in India at all and blocking HW’s entire account does not meet the four-part proportionality test.

 X said ready to restore account but not ‘the State’ under Article 12

While objecting the Centre’s blocking proposal, X also asserted that Hameed’s petition was not maintainable against X, as the company is not “the State” under Article 12 of the Indian Constitution, nor does it perform a public function. However, X Corp. also states that, without prejudice to those objections, it does not oppose Hameed’s request to restore the account and will comply with a court order to that effect.

“It is admitted that Respondent No. 1’s (Union of India) blocking of the Petitioner’s (Hindutva Watch founder) entire social media accounts on the basis of certain alleged offending posts is contrary to Section 69A of the IT Act, disproportionate, and exceeds the limits prescribed under Article 19(2) of the Constitution. It is admitted that a possible and less rights-infringing approach would involve the removal of specific posts, if found to be in violation of the law … Without prejudice to the Preliminary Objections, Answering Respondent (X/ Twitter) does not oppose Petitioner’s request to restore Petitioner’s X Account in India, and will comply with such an Order if this Hon’ble Court grants it,” X stated before the court through its reply. Reported Bar and Bench

In support of its Position, X cites the decision of the High Court of Delhi in Sanchit Gupta v. Union of India, 2024 SCC OnLine Del 5880 in which the Court held that X Corp. does not perform a public function and is therefore not amenable to the Court’s writ jurisdiction.

Violates right to freedom of expression

The central government’s blocking of Hindutva Watch’s Twitter account constitutes a blatant violation of freedom of speech. By censoring the account, the government suppresses critical voices and stifles the documentation of hate crimes and hate speech by right-wing outfits and leaders. This arbitrary action undermines India’s democratic values and the fundamental right to expression guaranteed under Article 19(1)(a) of the Constitution. The blocking order lacks transparency, proportionality, and judicial oversight, setting a chilling precedent for online speech, as no prior notice was served to the HW, before or after the action. It highlights the government’s growing tendency to silence dissenting voices, compromising the safety of minority populations and undermining accountability towards rising in motivated hate crimes and hate speeches.

What is Hindutva Watch?

As per its website, Hindutva Watch (HW) is a media and research initiative committed to documenting hate crimes and hate speech targeting India’s religious minorities and marginalized groups, including Dalits. The project has been described by the Washington Post as “one of the most robust real-time data sets of human rights abuses in the world’s largest democracy.” The LA Times has described HW as “a thorn in the side of Hindu nationalists who have been provoking anti-Muslim sentiment for years.”

However, the blocking of X accounts of those critical of the Modi government is not a new phenomenon. Many reports have highlighted the complicity that X has shown, or has been pressurised to show by the Indian government, in regards to mass censorship of its users. In October 2023, accounts of two U.S. based non-profits that frequently criticised Indian political leaders’ record on minority and caste rights issues in India, namely The Indian American Muslim Council (IAMC) and Hindus for Human Rights (HFHR), had also been withheld owning to “legal demands”.

The next date of hearing in the matter is October 3, 2024

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The post Govt order to block Hindutva Watch account unjustified: X tells Delhi HC appeared first on SabrangIndia.

In a strongly worded judgement delivered by the Delhi High Court Justice Anup Bhambhani on July 23, the court minced no words as it questioned the investigation done by the Delhi Police and ordered the transfer of the case to the Central Bureau of Investigation (CBI) citing tardy and sketchy conduct of the former. In a case relating to the death of one Faizan, the victim of 2020 Delhi violence, who was beaten by a mob dressed in police uniform and later alleged to have been tortured in police custody at Jyoti Nagar police station, the case now stands transferred out of the Special Investigation Team (SIT) appointed by the Delhi Police, and has been handed over to the CBI for further investigation and prompt action. The petition was filed by the mother of the deceased, Kismatun, and was argued by advocate Vrinda Grover for the petitioner.

Notably, Faizan had succumbed to his injuries on the intervening night of February 26 and 27, 2020 while being treated at Lok Nayak Hospital in New Delhi. An FIR (No. 75/2020) was registered against his death at Bhajanpura Police Station on February 28, 2020 under sections 147, 148, 149 and 302 of the Indian Penal Code (IPC) against unknown persons. Furthermore, while the FIR was registered on February 28, the Crime Branch took the statement of her mother almost 3 weeks later, on March 18. The case became sensational in the backdrop of 2020 Delhi Violence after a video went viral on the social media, in which a group of men dressed in police uniform could be been beating Faizan with their batons and forcing him sing National Anthem even as they questioned his patriotism.

The High Court observed that “the Crime Branch of Delhi Police examined the petitioner for the first time only on 18.03.2020. More than 4½ years have elapsed since. However, not even one of the policemen involved in the abuse and assault has been conclusively identified in the course of the investigation so far. The perpetrators of the crime are therefore still at large, though they are all members of the police force in Delhi.”

Facts of the case

Faizan, a 23-year-old young man, had left his home on February 24, 2020 to search for his mother, Kismatun, who had been protesting along with other women against the controversial Citizenship Amendment Act (CAA). When his mother retuned back home, she did not find Faizan around, and in the meantime, the communal violence had broken out in their area. Later, it was learnt that Faizan along with other Muslim men had been beaten and dumped near the street by the police forces who forced them to sing National Anthem (though the prosecution version alleged that they had rescued Faizan as he was injured due to stone pelting when the riots broke out in the area). Subsequently, the police personnel from Jyoti Nagar police station took the men, along with Faizan, to GTB hospital for medico-legal check-up (incidentally, the men were under the jurisdiction of Bhajanpura Police Station when they were taken away by the Jyoti Nagar police personnel).

While at GTB hospital, Faizan received basic medical aid, including stitches on his head and ear, and was referred by the hospital for a further specialised medical treatment. His mother alleged that on the same day, i.e., 24.02.2020, upon receiving the information that Faizan had been at GTB hospital, they visited the hospital at 8PM but were informed that the police had taken back the men to Jyoti Nagar police station after ensuring basic medical treatment. What happened to Faizan at the police station is a matter of dispute, with the petitioner alleging that Faizan had been tortured at the station by men in uniform even while denying him urgent special medical treatment as was recommended by GTB hospital due to which his son succumbed to his injuries later on. The police version claimed that Faizan had voluntarily stayed at the station as the situation was communally tense in his area after the outbreak of the riots, and no harm was done to him at the station; nonetheless, it did not deny the video in which Faizan was earlier shown being beaten up by the men in uniform before being taken to the hospital and subsequently to the police station. The mother had questioned the police claim about his son allegedly voluntarily staying at the police station and said that she had visited the Jyoti Nagar police station on February 24 itself, but was not provided any helpful response. Importantly, all the CCTVs were out of order in Jyoti Nagar Police Station during the time of Faizan’s custody, the fact which both the petitioner and the court found suspicious. While Faizan was finally handed over to his mother on February 25 late night, he was found severely wounded, with torn trousers, blood-soaked clothes, and multiple stiches around his head and ear. He was admitted to Lok Nayak hospital the very next day, i.e., on February 26, where he later succumbed to his injuries.

High Court Judgement

Justice Anup Bhambhani posed multiple queries on the conduct of investigation and countered the claims made by Delhi Police on several fronts. The court said that it took almost 3 weeks upon registration of the FIR for the police to record the statement of the petitioner (victim’s mother) and collect the blood-stained, torn clothes worn by Faizan at the time of the incident. Further, the police have failed to take the statement of the witness, Kausar Ali, who was another injured victim and eye-witness to the incident. As per Ali, the police had started beating Faizan and other men without any provocation, and mocked at the victims while questioning their patriotism merely on the basis of their religious identity even as they laid severely injured on the roadside. Significantly, the Delhi Court High pointed out that “the police have failed to even identify the policemen who had humiliated and brutally assaulted Faizan (and four other young men), as plainly visible in the video-footage available in the public domain.” The verdict also observed that no action has been taken against police personnel at Jyoti Nagar police station where Faizan was illegally detained and denied urgent medical intervention, which resulted in his death.

The judgement further brought attention to the issue raised by the petitioner, which questioned the claim of the police that no CCTV footage is available to trace gypsy in which Faizan was picked up, even though the route in question would have several commercial establishments, petrol pumps, and DMRC metro stations.  On the malfunctioning of the CCTVs inside the police station premises, the court cited Paramvir Singh Saini vs. Baljit Singh & Ors., which says that “It shall be the duty and obligation of the SHO to immediately report to the DLOC any fault with the equipment or malfunctioning of CCTVs. If the CCTVs are not functioning in a particular police station, the SHO concerned shall inform the DLOC of the arrest/interrogations carried out in that police station during the said period and forward the said record to the DLOC”. In this regard, the verdict notes that the police took a very convenient stand, presenting a fait-accompli, which does not inspire confidence and cannot be countenanced. Moreover, the claim made by the police that Faizan stayed at the station at his own will was found counter-intuitive, and the court reasoned if that was the case, he would have at least informed about his whereabout to his family. The verdict also commented that if Faizan was already severely injured why would he be kept at the police station, even at his own request and safety?

Significantly, Justice Bhambhani countered the narrative of the Delhi Police, which claimed that it has not been able to identify the guilty personnel. The judge said that, as per the narrative, “SHO, P.S.: Jyoti Nagar took the injured young men to GTB Hospital in a police Gypsy but that the said police officer has been unable to identify any of the policemen who were involved in the abuse and assault.” He further said that putting the said SHO to polygraph test only now, after 4 years, is not suggestive of the investigation and promptitude. The verdict emphasised that none of the accused have been identified till date even though the Investigating Officer “informs the court that they have identified a head constable and a constable who were present at the spot, as possible suspects, it is their case that the said two policemen have given deceptive responses in their polygraph tests…”.

The judgment recognised the present case as an instance of hate crime and citing the judicial precedent in Tehseen S. Poonawalla vs. Union of India &Ors, it remarked, “It must be understood that mob-vigilantism and mob-violence do not cease to be so merely because these are perpetrated, not by ordinary citizens, but by policemen themselves. If anything, the element of abomination gets aggravated if hate-crime is committed by persons in uniform.” The verdict further underscored the importance of fair investigation, and said that “a fair investigation, and not just a fair trial, is now considered part of the fundamental right enshrined in Article 21 of the Constitution.”

Relying on the judicial precedents concerning fair trial and investigation in Bharati Tamang vs. Union of India, Mithilesh Kumar Singh vs. State of Rajasthan, and Awungshi Chirmayo & Anr. vs. Govt. of NCT of Delhi, the Delhi High Court transferred the case registered under FIR No. 75/2020 at Bhajanpura Police Station to the CBI as it reasoned that the perpetrators of the offence are themselves members of the agency that is investigating the crime, and this does not inspire confidence.

Today, the court rejected Delhi Police’s plea to put the order in abeyance but it extended the time for transfer of the investigation to CBI from 7 days to 14 days.

The High Court judgement may be read here:

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The post Delhi High Court transfers to CBI the case involving Delhi violence victim Faizan who was attacked by the mob in police uniform and forced to sing National Anthem appeared first on SabrangIndia.

Background

The case was first filed in 2001 in Ahmedabad by VK Saxena after Patkar issued a publication dated November 25, 2000, titled “true face of patriot”, insinuating Saxena’s involvement in Hawala transactions and close ties with Lalbhai Group and the state government of Gujarat. While Patkar was among the activists opposing the construction of dams on Narmada River, Saxena’s organisation, National Council of Civil Liberties, was involved in ensuring timely completion of Sardar Sarovar Dam, and further engaged on the issues pertaining to ‘public interest’ and unfair trade practices. Patkar’s press note, titled “true face of patriot”, read “V K Saxena, one who is pained by the Hawala transactions himself came to Malegaon, praised NBA and give a cheque of ₹40,000. Lok Samiti naively and promptly sent the receipt and the letter, which shows honesty and good record keeping than anything else. But the cheque could not be encashed and got bounced. On enquiry, the bank reported the account does not exist”. The press note also said the cheque came from Lalbhai Group, and asked “What is the connection between Lalbhai group and V.K Saxena? Who among them is more of a ‘patriot’?” The press release noted that it is an act of a coward, not a patriot, and further said “Not addressing the issues raised by movement for the last 15 years and coming up with fake stories, like Hawala transactions are examples for cowardliness and not of patriotism. One, Who is following the sordid tactics of government of Gujarat, its history of human rights from Dangs to Ambergaon, and mortgaging the people and their resources before Bill Gates and Wolfensohn, knows, who is behind him.”

The case was transferred from Ahmedabad to Delhi on the direction of the Supreme Court in 2003, and had been hanging since then. In 2011, Patkar pleaded not guilty and demanded a trial, following which the trial finally took place in the Saket trial Court. On May 24 this year, Patkar was held guilty under Section 500 the IPC (Defamation), and the quantum of punishment was decided on July 1. Pertinently, Patkar has decided to appeal against the decision of the trial court in the higher courts.

Conviction Order 

The Saket Court Metropolitan Magistrate Raghav Sharma in his order on May 24 argued that Patkar’s conduct and her publication against VK Saxena were defamatory as “her decision to label the complainant as a “coward” and “not a patriot” was a direct attack on his personal character and loyalty to the nation.” The verdict also stated that by “explicitly stating that the complainant was ‘pained with hawala transactions,’ she aimed to associate him with illegal and unethical financial dealings, thereby inflicting significant harm to his reputation and standing…without providing any substantive evidence…”. In addition, the court took objection to her allegation in the press note, which said that Saxena was hand-in-glove with the state government of Gujarat in mortgaging the people of Gujarat and their resources to Bill Gates and Wolfensohn. The order said the statement insinuated that Saxena “was betraying the trust of the people and compromising the state’s welfare for the benefit of foreign interests…was engaged in actions detrimental to the state and its citizens, thereby framing him as a traitor to public trust and interest” and constitutes “direct attack on his integrity and public service”.

 The court interpreted Patkar’s press note as charged with emotive language and remarked that the statements “were crafted not just to inform but to incite negative sentiments among the public, indicating a clear and malicious intent to defame.” It noted that the allegations pertain to sensitive issues such as financial misconduct, personal cowardice, and national loyalty, and were made with “calculated effort” to damage Saxena’s reputation. 

The verdict concluded that Patkar failed to provide any evidence to counter the claims of the complainant “or to show that she did not intend or foresee the harm these imputations would cause.” The trial court noted that it is “beyond reasonable doubt” that Patkar published the imputations with the intent to harm the reputation of the complainant and declared her guilty of defamation under Section 500 of the India Penal Code (IPC). Following her conviction on May 24, the trial court sentenced her to 5-months imprisonment on July 1 and additionally ordered her to pay 10 lakh rupees to VK Saxena as a reparation. 

The trial court order may be read here:

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The post Narmada Bachao Andolan activist Medha Patkar convicted in 23-year-old Defamation case filed by VK Saxena; the Saket court sentenced Patkar to 5-month imprisonment appeared first on SabrangIndia.

The Delhi High Court bench of Justices Suresh Kumar Kait and Manoj Jain on May 29 granted statutory bail to Sharjeel Imam in the case of alleged incendiary speech delivered during the anti-CAA protests. In their verdict, the bench remarked that the trial court “got swayed by the enormity of the allegations” and said that there is no justifiable reason preventing the court from granting him the relief. The High Court granted bail to Sharjeel as he has already undergone 4 years in prison as an undertrial, which is more than half of the maximum prescribed imprisonment period for the charges made against him, making him eligible for statutory bail under Section 436-A of the Code of Criminal Procedure (CrPC). Notably, while the charge of sedition (Section 124-A) carries a maximum of life imprisonment, the said provision is suspended by the Supreme Court order in the case of S.G. Vombatkere Vs. Union of India, thus making it inapplicable in the present case.

The relevant portion of Section 436-A of CrPC reads, “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties”.

Even though Sharjeel has been granted bail in this case, he will continue to remain behind the bars as he is also booked in another case for his alleged role in larger northeast Delhi violence conspiracy case. Sharjeel was first arrested in the present case on January 28, 2020 as he was booked under Sections 124A (sedition), 153A (promoting enmity), 153B (Imputations, assertions prejudicial to national integration), 505(2) (Statements promoting enmity) of the Indian Penal Code (IPC) and Section 13 (punishment for unlawful activities) of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

Pertinently, the application for statutory bail was first move d in the trial court by Sharjeel under Section 436-A of CrPC, but the Shahdara trial court judge Sameer Bajpai rejected his plea, observing that “although the applicant did not ask anybody to pick weapons and kill the people but his speeches and activities mobilised the public which disrupted the city and might be the main reason in outbreak of the riot”. The trial court said his speeches at Jamia Millia Islamia and Aligarh Muslim University can be deemed “seditious” in dictionary meaning, and the speeches were made to incite “the public in order to create a havoc in the city, capturing the minds of “a particular community” and inciting them to engage in disruptive activities.”, Indian Express reported. Consequently, the trial court rejected his bail and extended his detention citing “exceptional circumstances”.

Following the trial court order rejecting his bail plea, Sharjeel moved an appeal to the Delhi High Court under Section 21 (4) of National Investigation Agency Act, 2008, which states that “Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail”.

Analysis of the Delhi High Court verdict

As the Delhi HC granted statutory bail to Sharjeel Imam, it specifically looked at Section 436-A of the CrPC, Section 13 of UAPA, and Section 124-A of the IPC (presently suspended). The court noted that the provision on sedition (IPC Sec. 124-A) which carries a maximum punishment of life imprisonment is suspended by the Supreme Court through S.G. Vombatkere Vs. Union of India (Writ Petition(C) No.682 Of 2021), and therefore it will not apply to the present case. Excluding sedition, Section 13 of UAPA is the most stringent provision applied against Sharjeel, which carries a maximum punishment of 7 years. This basically entails that Sharjeel would be eligible for a bail as he has already served 4 years in prison, which is more than half of the maximum 7 years punishment as is prescribed under Section 13 of UAPA.

The prosecution with the aim of delaying the bail to Sharjeel argued that the maximum punishment provided in each Section for which the accused is charged can be given aggregately or one after the other. The bench strongly rejected the argument of the State and said, “…a very strange argument was raised before the learned Trial Court by State. It was contended that if conviction is recorded, the sentence likely to be awarded is to be seen in terms of the legal provision under section 31 Cr.P.C., which prescribes that when a person is convicted at one trial for two or more offences, the punishments shall run one after the other, unless the court, in its discretion, orders that the punishments shall run concurrently. Obviously, such contention did not cut any ice.”

Interpreting Section 436-A of the CrPC, the bench said that careful look at the provision suggests that under Section 436-A an accused would not be entitled to “automatic” bail and it cannot be claimed as a matter of right. The bench continued that courts may for reasons recorded in writing, decline the bail under the said proviso. However, the High Court emphasised that though the court can order further detention, “the reasons have to be rational and logical, else the very purpose of introducing the provision would stand defeated.”

The State argued that the explanation to Section 436-A of the CrPC notes that detention undergone due to delay caused by the accused should be excluded from the calculation of total period of detention, and further alleged that it was Sharjeel who delayed the proceedings by stalling the trial against the offence of sedition. Consequently, he should not be allowed the relief under Section 436-A of the CrPC, the prosecution argued.

The court rebutted such claim saying “If any accused chooses to avail legal remedy and that too in terms of specific judicial pronouncement, he cannot be blamed for causing delay in the matter.” The bench relied on S.G. Vombatkere vs. Union of India, Abdul Subhan Qureshi vs. State (NCT of Delhi), and Ajay Ajit Peter Kerkar vs. Directorate of Enforcement as it granted bail to Sharjeel Imam.

Notably, as the court gave relief to Sharjeel, it argued that trial court got swayed by the enormity of the allegations and said “we have no hesitation in holding that there was, actually speaking, nothing on record which could have disentitled the accused from seeking relief under Section 436-A Cr.P.C.”

The copy of the judgement can be found here:

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