During the February 21 hearing dealing with the hijab ban in the state, the Karnataka High Court bench of Chief Justice Ritu Raj Awasthi, Justice Krishna S Dixit and Justice JM Khazi put forth a question – whether it was necessary for the court to go into the constitutional question of essential religion practice at all?

The bench questioned Advocate General Prabhuling Navadgi who said that the question needs to be answered as it is necessary to know whether or not the institutions can restrict someone’s entry to the institution for wearing hijab. The Advocate General also told the Court that the entire question revolves around whether wearing of hijab falls under Article 25. In this case Udupi Pre-University (PU) College had taken a stand that they will not allow wearing of hijab in the institution.

Can same colour headscarf be worn?

The hearing began with a query from Chief Justice Awasthi that they (Muslim women and students) may be permitted to wear the same colour headdress as permitted in uniform prescribed by the college. The Court wanted to know the stand of the state. The AG clarified his stand by saying, “The Order gives complete autonomy to institutions to decide on uniform, whether students will be allowed to wear dress or apparel which could be a symbol of religion. The stand of the state is the element of introducing religious dress should not be there in uniform.”

Conscience vs. religion

The Court said that conscience and religion are two different aspects but they also mutually exist. Justice Dixit pointed out that in the Constituent Assembly, there was a debate on whether to include “conscience” in Article 25. Dr. Babasaheb Ambedkar suggested it to be included, saying even people who do not believe in God are also entitled to Article 25 protection. Unless conscience is taken over by an overt act, until then it is conscience, once it is an act it becomes religion, to which the Court and Advocate General both agreed.

The Chief Justice said conscience and religion are two different things. One can be highly religious but not have a conscience and others may have a conscience but not be religious.

Essential practice

The AG then referred to Ajmer Dargah case  (AIR 1961 SC 1402) whereby the Supreme Court held:

“Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices.”

AG also referred to Shayara Bano (Triple Talaq) case, from which he quoted, “A practice claimed to be essential must be mandatory and not optional.”

Advocate General carved out five principles (from the cases he referred) for the present case:

1. The practice must be fundamental to the religion.
2. If the practice is not followed, it will change the religion itself.
3. Practice must precede the birth of religion. Foundation of religion must be based on that. It must be co-existent with the religion.
4. Binding nature. If it is optional, then it is not essential. If wearing it is not obligatory, then it is not essential.

He further made a submission to the Court that the burden is on the petitioners to show that hijab satisfies all tests of essential religious practice. He also requested the Court to have a look at the pleadings made by the Petitioners, in which there were no averments.

Different interpretations of court order

The Advocate General also submitted that he received a letter from Adv. Mohammad Tahir, alleging some excesses committed by authorities with respect to Court order. Adv. Tahir had earlier made a submission to the Court that, “Every department is interpreting the order differently. Yesterday, the Minority Department passed an order. Even in Urdu colleges it is enforced. Policemen are deployed at gates and are threatening Muslim girls. The Order said classroom. But at gates students are stopped.” The Advocate General told the Court that he had spoken to the Principal Secretary of the education department and soon a meeting of all concerned people will be convened. He gave an assurance to the court that a report will be submitted to the Court and Adv. Mohammad Tahir.

Adv. G R Mohan made his submission to the Court that a request was made to the Child Rights Commission to provide a separate room for removing hijab, not in an open place.

Where it all started

On February 18, the Advocate General told the Court about how and when this Hijab ban story started. He referred to a resolution passed in 2013, when Uniforms were prescribed.  The dress code became an issue on December 31, 2021, when some students of Girls College approached the principal and insisted on wearing hijab in classrooms. College Development Committees (CDC) wanted to examine the situation, which was chaired by MLA on January 1, 2022.

A meeting was held by College Development Committees with the parents of the students in which they (parents) were told that Uniform system has existed since 1985. This meeting was not helpful and hence the protest continued. This led to a communication from the state to the director. Another resolution was passed by the College Development Committees that requested the parents to follow the uniform.

The Advocate General was told that the unrest continued in the institution and this led to another resolution being passed by College Development Committees. This reiterated the same thing, except that it made a positive assertion that children should not wear the hijab. This resolution notes something very important. It was subtly informed that students from other communities are studying in the college. The concern of the committee was seen in that. By that time the State was informed that the issue was spreading to other institutions. The issue was not localised. Protest and unrest went on. So in that background, the impugned order of February 5 was passed.

The Advocate General pointed out that Article 25(1) starts with “Subject to ….” The fundamental right starts with a non-obstante clause, 25(2) does not prevent states from making a law to regulate or restrict. He further submitted that the series of rights under Article 19 can be regulated only by a “law to be made by the State”. But “law to be made by the State” is not present in Article 25, and this right is subject to “public order, morality and health”.

The video of the hearing may be viewed here:

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The Supreme Court, while setting aside an order granting bail to a habitual offender and murder accused, reiterated the principles that should guide the discretionary power of the high courts to grant bail. The bench of Justices DY Chandrachud and MR Shah highlighted the precedents laid out by the Supreme Court in what factors should be considered when exercising power to grant bail.

The appeal was filed by the informant and son of the victim against bail granted to original accused/respondent charged with murder by Punjab and Haryana High Court. during the investigation, it was revealed that though the respondent was not physically present at the spot, he hatched the criminal conspiracy to murder the victim. The counsel for the appellant submitted that the high court committed grave error by releasing the respondent on bail as it did not consider the seriousness of the offence; the specific allegation in the FIR that even while in jail he hatched the conspiracy along with other co-accused, and that he was the master mind and the main conspirator.

The court found it necessary to underscore some of the earlier decisions of the court on exercising court’s discretionary power for grant of bail and the duty of the appellate court when bail is denied by lower court.

In the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240, the apex Court has observed and held that deprivation of freedom by refusal of bail is not for punitive purposes but for the bifocal interests of justice. the other factors held to be important were nature of the charge, nature of evidence, severity of punishment if convicted, likelihood of the applicant interfering with the witnesses, antecedents and so on. The same factors and additionally Prima facie satisfaction of the court in support of the charge, were resounded in State of Maharashtra v. Sitaram Popat Vetal, (2004) 7 SCC 521.

In Mahipal v. Rajesh Kumar (2020) 2 SCC 118, where the accused was released on bail, the apex court had held that where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside.

In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 the court had held that among other circumstances, the factors to be borne in mind while considering an application for bail are:

1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
2. nature and gravity of the accusation;
3. severity of the punishment in the event of conviction;
4. danger of the accused absconding or fleeing, if released on bail;
5. character, behaviour, means, position and standing of the accused;
6. likelihood of the offence being repeated;
7. reasonable apprehension of the witnesses being influenced; and
8. danger, of course, of justice being thwarted by grant of bail.

Based on these former decisions of the Supreme Court, the bench held that the High Court, in this case, failed to appreciate and consider the nature of the accusation and the severity of the punishment in case of conviction and the nature of supporting evidence. It further failed to appreciate the facts of the case; the nature of allegations; gravity of offence and the role attributed to the accused as also the threat perception to the appellant and his family. The court pointed out that the respondent is a habitual offender who has been convicted in 3 FIRs.

The court thus held that the High Court’s order is unsustainable and deserves to be quashed. The court thus allowed appeal and directed the state to take the respondent into custody.

The complete judgement may be read here:

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A mosque that had existed peacefully in Ram Sanehi Ghat, a city in Barabanki, in Uttar Pradesh, for decades, has been bulldozed. According to a report in The Guardian, the destruction of the Mosque has violated a High Court order. This action in Uttar Pradesh, already a communally sensitive state, as the Guardian puts it is “one of the most inflammatory actions taken against a Muslim place of worship since the demolition of the Babri Mosque by a mob of Hindu nationalist rioters in 1992.” 

As per the documents held by the mosque committee, the place of worship had stood for at least six decades, perhaps more. According to the report, it was on Monday, that the police and other security services arrived, and cleared the area of people, they then “brought in bulldozers and demolished the mosque”. It has been reported that the “debris was then thrown into a river” hence leaving no or little ‘evidence’ of the destruction. This destruction, which can have a long lasting negative impact, comes in the middle of the Covid-19 pandemic, which has been at its worst in some states including Uttar Pradesh. 

Security forces are still said to have been deployed in the area now “to prevent anyone coming within a mile of where the mosque stood”, stated the news report. The Guardian quotes the local imam, Maulana Abdul Mustafa, who is also a member of the mosque committee, saying that the mosque was “hundreds of years old” adding that “thousands of people have been coming here five times a day to offer namaz.” He said that the Muslims of the area were scared, and so did not dare to go towards the mosque, let alone protest, when it was being demolished. He added that in the aftermath of the demolition, “several dozen people are leaving their homes and hiding in other areas out of the fear of the police.” However, the District Magistrate, Adarsh Singh, told the Guardian, “I do not know any mosque. I know there was an illegal structure. The Uttar Pradesh high court declared it illegal. That’s why the regional senior district magistrate took action. I will not say anything else.”

However, according to the report, this demolition is in violation of a high court order dated April 24. The HC had ordered that the mosque should be protected from any eviction or demolition until May 31. On March 15, the local administration had issued a “show cause” notice to the mosque committee. The committee was asked to explain “how the building’s location was chosen and citing an intention to demolish it on the grounds that it was an illegal structure.”

According to the news report, the mosque committee “sent a detailed response, including documents demonstrating the building had an electricity connection from 1959, but the local administration did not take the response on to official record.” The committee approached the Allahabad High Court on March 18, stating concerns of  “imminent demolition” that the mosque faced and the HC passed an order seeking a reply from the local administration on what “grounds on which it had established that the mosque had been illegally built and was obstructing traffic, even though the structure did not sit on a road” reported The Guardian.

Meanwhile, a “structure” was built around it, allegedly blocking the access to the mosque in the next few days. And on March 19, the Guardian reports, the local Muslims “were prevented from entering the mosque for Friday prayers, causing tension and protests in the area”. It was reported that over 35 local Muslims who had protested were subsequently arrested, and more protesters were named in the police reports.

These actions by the administration raised concerns of the mosque committee which in  April filed a public interest litigation in the high court, stated the news report. On April 24, the HC ordered that “any orders of eviction, dispossession or demolition …shall remain in abeyance until 31.05.21”. However, on Monday, May 17, the mosque was razed to the ground amidst heavy police deployment. According to the Guardian, “Local Muslims in the area, including members of the mosque committee, said they had gone into hiding over fears they would be targeted and arrested.” The Guardian highlighted that this area is in a district that “is adjacent to Ayodhya, where the Babri Mosque stood before its demolition in 1992.”

India Today had reported that UP’s Adityanath-led government’s Home Department had issued instructions on March 12, “to demolish all religious places on the roads or along them constructed after January 2011” adding that the government said “religious places built before January 1, 2011, will be shifted elsewhere.” 

However, this demolition is in clear violation of the HC ruling that “any orders of eviction, dispossession or demolition …shall remain in abeyance until 31.05.21”.  

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The forest labourers of Pakur, Jharkhand who are staging a protest demanding their pending salaries of 9 months have now approached the High Court. The court is yet to issue notice in the case.

About 250 labourers hired to ensure the upkeep of one range of Pakur Forest Division have been unpaid for the past 9 months, and despite sending repeated letters to concerned authorities there was no redress in sight.

The petition has been filed by Anil Kumar Singh, a forest range officer who acted as a good samaritan throughout this phase and was helping the labourers by paying them small sums from his pocket, albeit that only brought them temporary relief. He said the money owed to 250 labourers since the Covid-19 pandemic broke amounts to Rs 10 lakh.

Singh’s PIL blamed the wage delay on the ‘non availability’ of the divisional forest officer. It said Singh is being ‘compelled to give advances’ to labourers which is causing ‘great hardships’ to both the workers and himself. “That it has become difficult to remain in headquarters and keep the ‘mobile phone on’ due to lack of funds. The petitioner in person is not in a position to even fill the fuel in government vehicle and maintain the same to help combat the illegal transit of the timber, incidence of which is increasing day by day. That this attitude of the officers…is creating a bad image of the department,” reported Indian Express.

The plea states that the issue has not been resolved due to the highly insensitive attitude of the authorities as several letters written by Singh himself have gone unheard. The plea also raises the issue of having inadequate frontline forest staff consisting of only 7 forest guards and 2 foresters.

The workers said they live hand-to-mouth and have little option but to survive on loans. Ram Hansda, who also cultivates paddy in his fields, said he lives off whatever he earns by selling his produce in the market. “I buy vegetables with the money I make from my produce. We are desperately short of cash. It would help if the forest department releases Rs 65,000 in unpaid wages. I hope the high court will resolve our problem at the earliest,” Hansda told IE.

The IE report states that the labourers, on December 15, locked the Pakur Forest Division office, demanding their dues as they don’t have enough money to even feed their children.

Pakur district is populated largely by rural Paharia and Santhal people.

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The Supreme Court recently refused to entertain a plea challenging validity of a central law questioning why the petitioner had not approached the High Court where the cause of action had arisen. The petitioner was challenging the Epidemic Diseases Act and the bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee were hearing  the petition. Justice Chandrachud noted, “So High Courts have jurisdiction in respect of central Acts. You don’t have to come to the Supreme Court. You are anyway on the issue of quarantine in Maharashtra…Every High Court in the country has the power to strike down a law for being in the teeth of Article 245, 246 or Part III of the Constitution.”

It is common knowledge that high courts have writ jurisdiction and can decide the question of law in a particular case.

The Supreme Court asked the petitioner to approach the High Court as High Courts have the jurisdiction to rule over question of law or deciding constitutionality of a central law. This is a constitutionally sound order since there once existed a constitutional provision that embargoed High Courts from deciding the constitutional validity of central laws under the writ jurisdiction under Article 226.

The Forty-second Amendment Act, 1976 had inserted Article 226A in the Constitution: constitutional validity of central laws not to be considered in proceedings under Article 226. The same was repealed by the Forty-third Amendment Act, 1977.

The Law Commission of India 136th Report  titled Conflicts in High Court decisions on central law – how to forclose and how to resolve states that a provision mandating that the pronouncement of a high court on questions of law shall bind courts and authorities within the state is not found in the Constitution. But it is settled beyond doubt that the pronouncements of a high court have the same authority within the state as those of the Supreme Court have throughout India. This report had given some recommendations on how to resolve a question of law concerning a central law if another high court has already decided upon it. This has been discussed in the concluding part of this article.

So, when the apex court states that a central law can be challenged before a high court, one wonders what implication would the final judgement of that high court be? If the law is declared unconstitutional by one high court will it have to be followed by other states and high courts as well? The Constitution under Article 215 states that a High Court is a court of record which means that the decision of one high court will be binding upon lower courts within its territorial jurisdiction.

Hence, the only probable explanation to application of a judgment deciding constitutionality of central law by a high court, is that the Supreme Court will have to decide upon it. It has happened so in the past. There was a conflict of decision on interpretation of term “full owner” under section 14(1) of the Hindu Succession Act, 1956. Due to difference in interpretation of high courts, in an identical fact situation, a Hindu widow who inherited property in Orissa or Andhra Pradesh would be a limited owner but if she inherited property in Madras, Punjab, Bombay or Gujarat, she would become absolute owner; this was owing to the differing interpretations given by the high courts in these states. This lack of uniformity was finally resolved by the Supreme Court after 25 years of this confusion having arisen in the first place.

The high courts, although, have assumed that a judgment of a high court on constitutional validity of central law will be binding throughout India. The root cause of this common inference is the apex court judgment in Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254]. The apex court had stated thus,

’22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.’

This is clearly the obiter dictum part of the judgment which in literal sense means, ‘that which is said in passing’. As per Cornell University’s Legal information Institute, obiter dictum is A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts.

This is so because Article 226(1) of Indian Constitution specifically states that the power of High Courts is to be exercised within the territorial jurisdiction of the court and hence, to say that the pronouncement of one high court is binding throughout the country contravenes this constitutional provision.

The obiter dicta in Kusum Ingots is being read into by all High Courts because a Supreme court’s judgment is binding on all courts and becomes a precedent and so does the obiter dicta part of the judgment.

In Naz Foundation v. Government of NCT of Delhi and Others Delhi High Court had dealt with section 377 of the Indian Penal Code; a legal instrument that governs the criminal justice system in the whole of India. The high court had, inter alia, held that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. The territorial extent of the application of this decision was not spelt out but the court stated that its interpretation shall stand till the parliament decides to act on the issue.

A high court’s decision cannot be binding upon other high courts, at the most it could have persuasive significance, i.e. it can be considered by another high court while making a decision but it is not mandated to follow it. Hence, the efficacy of letting a high court decide upon constitutional validity of a central law remains questionable and puts uniformity of law in the “Union of India” in danger. It might have to be ultimately decided by the Supreme Court, which means the litigator would rather approach the Supreme Court first, to get a final and binding judgment.

In another instance, the Delhi High Court is hearing a plea seeking registration of marriage of same sex couples under the Hindu Marriage Act, which is a central legislation. Although this is not a question of constitutional validity of any legal provision but if the court orders that same sex marriages be allowed to be registered under the central law that governs the whole of India, will the same be considered to be applicable throughout? Will a marriage registrar in Maharashtra follow the decision of the Delhi High Court? These questions remain unanswered.

The question of applicability of a central law being declared unconstitutional or invalid by a high court is still something that remains to be definitively decided by the apex court. The Law Commission of India 136th report recommended that if a High Court is faced with a problem pertaining to a central law on which another high court has already made a pronouncement and if the high court holds a different view then it shall make a reference to the Supreme Court to that regard along with a reasoned opinion of its own view. While this may seem like a viable legal recourse, the same has not been applied in the jurisprudence yet despite the report having been released three decades ago.

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In 2011, the Karnataka High Court had taken up a suomotu Public Interest Litigation (PIL) after receiving a letter from B L Patil of Vimochana Samsthe, Belagavi district. In the letter, Patil had expressed concerns over the death of children in Raichur district and other parts of North Karnataka. In April 2012, the High Court had constituted the nine-member Committee headed by Justice NK Patil.

The committee placed its report on August 23, 2013, with 112 wide-ranging recommendations, such as identification, medical assessment and treatment of children covered under Integrated Child Development Scheme(ICDS) as well as the provision of basic infrastructure to anganwadis.Later, the state government had accepted 87 recommendations, although it has allegedly failed to implement the recommendations even after six years!

On September 16, 2019, the Court gave directions to the state government to file the report by October 21.When the government sought time again, the court revised the deadline to November 18. But when the Karnataka government failed to meet even this deadline and asked for another extention, a division bench comprising Chief Justice Abhay Oka and Justice Pradeep Singh Yerur took exception to this, warned them that the court will initiate a contempt case if the compliance report is not submitted before November 20. It observed that the government should take up the Committee recommendations on an emergency basis and take serious steps to control the death of children due to malnutrition.
 

The Justice NK Patil Committee Report may be read here.

A study on child malnutrition in Karnataka noted, “The lack of commitment to implement the recommendations of a committee headed by a sitting High Court judge, after promising to do so in court, only shows the lackadaisical attitude the government has towards curbing malnutrition. The situation has been aggravated by increasing privatisation of many of the services provided by the State.”

Malnourishmentand India

According to WHO, malnutrition refers to deficiencies, excessesor imbalances in a person’s intake of energy and/or nutrients. It includes undernutrition like wasting(low weight-for-height) or stunting (low height-for-age), as well as micronutrient-related malnutrition.

As per the National Family Health Survey-4 (NFHS):

• 35.7 per cent of children under the age of five years are underweight
• 38.4 per cent are stunted
• 21% are wasted

Raichur district in Karnataka, in particular, reported that 41.2% children under 5 years were underweight. In Karnataka, 44.8% of pregnant women were found to be anemic.

A 2018 report by the Centre for Policy Research, New Delhi, which compiled country-wide data, shows that 26% of Integrated Child Development Services (ICDS) beneficiaries in the state are malnourished. The ICDS was reported to be was serving about 82 million children younger than 6 years and over 19 million pregnant women and lactating mothers in 2016.

The National Human Rights Commission has notedthe Right to Food to be a guaranteed Fundamental Right under the Indian Constitution, reading Article 21 with Articles 39(a) and 47. Article 39(a) directs the State to secure the right to an adequate means of livelihood for its citizens, while Article 47 spells out the duty of the State to raise the level of nutrition and standard of living of its people as a primary responsibility.

In PUCL v. Union of India, better known as the Right to Food case, the apex Court directed appointment of Commissioners to monitor the execution of the various food-related welfare schemes framed by the Government of India.
 

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Image Courtesy: indianexpress.com

On Sunday, Tripura observed its first ritual slaughter-free Diwali in 525 years after the Tripura HC banned the practice. However, priests and devotees at the Tripura Sundari temple, concerned about this matter, said that Diwali was rendered incomplete without the animal sacrifice, The Indian Express reported.

Earlier this year in September, the Tripura High Court had ordered a ban on the tradition of animal sacrifice in temples. The judgment delivered by the HC’s Division Bench comprising Chief Justice Sanjoy Karol and Justice Arindam Lodh, in a response to a Public Interest Litigation (PIL) filed by a retired judge Subhash Bhattacharjee read, “no person including the state shall be allowed to sacrifice any animal/bird within the precincts of any one of the temples within the State of Tripura…”

Examining several Supreme Court judgements, the HC once again examined the difference between a religious practice and essential and integral part of the practice of a religion and held that bird/animal slaughter should be banned.

The HC Order may be read here.

The petitioner had argued that slaughtering animals in the name of sacrifice was a social evil and against the Constitutional mandate. Animal sacrifice is not an essential or integral part of Hinduism and the HC had questioned whether the ritual could be allowed given that the Prevention of Cruelty to Animals Act, 1960 does not condone it.

Tripura Sundari temple’s head priest Chandan Chakraborty told the paper that the Diwali puja was done in the name of the king. “Animal sacrifice or ritual slaughter (Boli) is a part of the Puja process. The Court order didn’t give us time to finish sacrificing animals already pledged by devotees to their Goddess. They are returning dejected,” he said, adding how they were doing an ‘Angaheen’ (incomplete) puja now.

The temple, located at Southern Udaipur, 55 km from Agartala, is one the 51 Hindu Shaktipeethas and is considered to one of the holiest Hindu shrines in the country.

Keeping in mind, the ban on animal slaughter, the festivities took a somber route too. The Tripura Sundari dance and music festival which sported a variety of ethnic dances and musical performances and that used to be held for the last 10 years, was dropped and instead a a ‘mangal-arati’ with 1,000 devotees was organised in front of Kalyansagar – a pond excavated by the king after building this temple.

Opposing voices

Earlier this month, scion of the Royal family of Tripura and former Pradesh Congress President Pradyot Kishore Deb Burman announced that he would move the Supreme Court (SC) against the Tripura HC judgment regarding the ban. While saying that he was not in favour of animal sacrifice, he said, “The high court cannot override the provisions of the merger agreement which was signed on October 15, 1949 between Regent Maharani Kanchan Prabha Devi and the governor general of India.” He had added, “Before delivering the verdict, the High Court should consult with the stake holders and the civil society. The Court should not intervene into the traditional social, cultural and religious belief.”

The merger agreement made it mandatory for the Tripura government to continue the sponsorship (including sacrifice of animals at government expenditure) of several traditional tribal pujas and 14 temples, including the Mata Tripura Sundari Temple run by the Hindu princely rulers.

Members of the National Service Scheme (NSS) also said that the decision to ban animal sacrifice had hurt the sentiments of the devotees.
Citing that banning animal sacrifice didn’t guarantee everlasting life to animals, a devotee said, “If you can’t stop indiscriminate slaughtering across the state, how come animal sacrifice in temples was stopped? This is not right.”

Animal sacrifice has been long practiced in the Tantrik method of worship of the Dash Maha Vidya (ten forms of the Goddess of Hindus) and animal rights activists have welcomed the ban saying it would end cruelty to animals in the name of religion.

There were those who thought this animal sacrifice was fanaticism. “We live in a modern world. Ritual slaughter started as anthropological transition from hunting to domesticated life. Unnecessary brutality in the name of religion is not acceptable now. Calling for revival of boli is religious vigilantism,” said a government employee, who didn’t wish to be named.

In 2014, the Himachal Pradesh high court had banned animal sacrifice for religious reasons, deeming the practice cruel and barbaric.

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In a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2,400 were detained the Public Security Act (PSA), of which about 58% were quashed by courts. The Chief Minister stated in the Assembly in January 2018 that 525 people had been detained under the PSA in 2016, and 201 in 2017.

In a new report on PSA, Amnesty International India has said, “Government statistics are often inconsistent. According to information obtained through Right to Information (RTI) applications, over 1,000 people were detained under the PSA between March 2016 and August 2017.”

The report follows two earlier reports – first in 2011, titled ‘A Lawless Law’ on administrative detention under the PSA, documenting the various ways in which the use of the PSA violated international human rights law, and second in 2012, titled ‘Still a Lawless Law’, which found that concerns with the PSA and its application remain unchanged.

The new report, which Amnesty has called “briefing” revisits the PSA in its 42nd year of existence, to claim how this ‘lawless law’ is enabling violations of both Indian and international law in Jammu and Kashmir, thereby contributing to inflaming tensions between residents and state authorities.

Even as underlining that it takes “no position on the guilt or innocence of those alleged to have committed human rights abuses or recognizably criminal offences”, Amnesty believes, “However, everyone must be able to enjoy the full range of human rights guaranteed under Indian and international law. By using the PSA to incarcerate suspects without charge or trial, J&K authorities have not only gravely violated their human rights but also failed in their duty to charge and try such individuals and to punish them if found guilty in a fair trial.”

Significantly, the report doesn’t just blame the authorities, but also talks of the “failures of the judiciary”.  Excerpts:

The only feasible legal avenue open to families of PSA detainees is to file a habeas corpus petition before the J&K High Court. India’s higher judiciary is meant to act as a custodian of the Constitution of India and the rights it guarantees. The High Court has played a key role in curbing misuse of the PSA, as is evident from the cases mentioned earlier.

Between March 2016 and July 2017, the Court quashed over 80% of all detention orders on various grounds. However, the High Court has also failed to adequately defend human rights principles enshrined in the Constitution of India and international human rights law and standards. The Court has been remiss in some specific ways:

– Ignoring illegal detention: In many of the cases analyzed for this report, detainees complained of being held in illegal detention without any basis, often prior to having a PSA detention order issued against them. In some cases, minors have been illegally detained. Despite having these allegations brought to its notice, the High Court has not ordered investigations into a single instance of alleged illegal detention. In many cases, people have been detained illegally after their detention orders have been quashed by the High Court, or they have been ordered to be released on bail. Such detention amounts to open defiance of court orders. Yet the High Court has not intervened to secure the liberty of detainees.

– Not holding detaining authorities accountable: The High Court has quashed many cases of PSA detention when executive authorities have failed to show due diligence in issuing detention orders. In several cases, it has quashed successive detention orders issued against the same individual. Yet the Court has rarely held police officials or executive detaining authorities accountable for their failures, even when it has pointed them out.

Officials already protected from prosecution under immunity provisions in the PSA are further emboldened by such reluctance from the High Court. The higher judiciary in India has vast constitutional powers and courts are often known to enforce their decisions through fines, strictures and other penalties. Yet the J&K High Court has appeared hesitant to take such measures.

– Not awarding compensation: The Supreme Court of India has awarded compensation in the past in cases of human rights violations, including illegal detentions. Most writ petitions filed in cases of PSA detention before the High Court raise the issue of compensation, and the Court sometimes mentions these requests, yet never acts on them.

As advocate Parvez Imroz says:

“Why is the police so insensitive to the judiciary’s orders? The reason is that the courts have failed to assert themselves. I do not have a single case in my knowledge where the detaining authorities have been questioned for passing the illegal orders, for example passing the detention orders against the minors or invalid persons. Or people who are remotely connected with the violence or with any political activity. Not a single case is there where the courts have ordered compensation to be paid to the detenues, though we have lot of cases in the Supreme Court.

“The procedural safeguards are being violated by the detaining authorities because there is no accountability…It is not only about the impunity of the armed forces here, which is much talked about. There is also impunity of the bureaucracy… The courts have completely caved in. Judicial impunity has emboldened the executive to pass the orders repeatedly.”

The apparent reluctance of the High Court to go beyond examining procedural issues, and deal with substantive protection of the rights of PSA detainees, has created an odd equilibrium in Jammu and Kashmir, where authorities flout the limited safeguards of the PSA with impunity, the Court quashes their orders, and authorities then issue new orders, for the cycle to start again. Authorities do not face any penalties for their actions, and the Court’s quashing of orders ensures that a façade of the rule of law is maintained.

The costs of this equilibrium are borne, then, by PSA detainees, whose rights continue to be routinely violated.

Courtesy: Counter View

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The 200-point roster system ensured that teaching positions were reserved by treating the university as one unit. So, a deficit of reserved seats in one department could be compensated by more people from the reserved communities in other departments. However,  the 13-point roster considers each department as one unit. So, for at least one appointment from each reserved category to be applicable, there must be a minimum of 14 appointments made (hence the term 13-point roster). This can have an adverse impact on the reservation and hence resulted in anger among marginalised communities.

The 13-point roster was first passed by the Allahabad High court and then upheld by the Supreme Court.

Following the SC order, several teachers’ associations wrote to the Ministry of Human Resources and Development and the Union Cabinet approved the ordinance on March 7 to restore the 200-point roster system. Thousands came out in protest against the 13 point roster demanding to  #BringBack200pointroster

A nation wide Bharat bandh was also organised on 5th March on the issue of the 13 point roster and Forest rights.

The same day the ordinance was passed, the UGC ordered all central, state and deemed universities to resume the recruitment of teachers which had been put on hold from July 2018.

The SC order had seen a lot of backlash in various universities in the country including JNU, Delhi. Speaking to TwoCircles.net, Deeksha Rahul, an MA Sociology student from JNU and a member of Birsa Ambedkar Phule Students Association (BAPSA) said, “The protest against 13-point roster is a concrete example of agitation advocating the collective dissent by people over the denial of a constitutional right by the Supreme Court. The fight against 13-point roster is against the Brahmanical idea for keeping away the marginalised from their constitutional right to representation.

“The 200-point system ordinance over the 13-point system is the success story of the Bahujans. Dr B.R. Ambedkar asked us to Educate, Agitate and Organise. When educated Bahujans start understanding the Brahmanical face of the system, they come together to agitate for their rights and organise themselves for the assertion of unity and strength.”

Akash Poyam, Founding Editor of Adivasi Resurgence told TwoCircles.net, “The ordinance is a victory of people’s movement and of all the students who vehemently protested against the 13-point roster. It was a clear threat to the majority of marginalised communities from the SC, ST, OBC communities. For example, ST representation did not even come under the 13-point system and was placed at the 14th number.”

Courtesy: Two Circle
 

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Image Courtesy: cjp.org.in

The grounds for the High Court to do so were that accused workmen were not produced in court and that their lawyers were not notified about the extension, nor was their say considered by the Sessions Court.The High Court held that this was in clear violation of the provisions of the Unlawful Activities Prevention Act (UAPA) while setting aside the order dated April 9, 2018. Application for stay on the order by Government was also rejected.The workers have moved applications for bail before the Sessions Court.

This video produced by Citizens for Justice and Peace (CJP) recounts the entire ordeal. It may be viewed here. https://www.youtube.com/watch?v=XfYHsX4ZmUc&t=2s

In what has become known as the BhimaKoregaon case in which Dalits visiting BhimaKoregaon memorial near Pune, Maharashtra, were attacked by Hindutva goons and subsequent protests had followed. Thereafter, the State began an unprecedented witch hunt of workers, activists and human rights defenders. The first arrests to take place were those of workers of Reliance Industries, a contractor in the same company and another social worker from Dombivli.Originally hailingfrom the Andhra Pradesh/ Telangana regions, they have been permanent residents of Mumbai since the last 2 to 4 decades.

Continued ordeals of workers and their families
Cha­­rged under various sections of UAPA, five of eight accused are workers of RelianceEnergy/Infrastructure Ltd. – Satyanarayan Rajayya Karrela, Babu Shankar BuchayyaVanguri, ShankarayyaLingayyaGunde, Ravi RajannaMaarampalli and SaidulNarsimhaSingapanga – who had been working with the company for nearly two decades, have been languishing in Arthur Road jail under the mostharshconditions for the last 11 months.
These arrested workers are the founders and committee members of the Mumbai Electric Employees Union. For many years, the union has been in the forefront of the workersstruggle and has fought for higher wages, better working conditions and several workers’ issues.

Subsequently, the police filed a 5900 page charge sheet in the Sessions Court against all the accused including the five Reliance workers.

For their families of the workers life has become full of peril and utmost hardship, with the sole bread earning members of families behind bars, the order of the High Court has brought hope of their release on bail.

Lower court passes order in absence of Accused or Lawyers
Earlier this year, the bail applications filed for 4 workers, 1 union activists and naka union activist was rejected in lower court. The bail was filed on technical grounds of securing default bail due to delay in filing of chargesheet. On April 9, the lower court passed an order allowing for the extension of date for filing of chargesheet to May 10 in the absence of the accused persons.

The lawyers arguing then on the behalf of the workers had argued that the order granting extension of time for chargesheet is to be set aside as they (the advocates of the accused were not heard while setting aside the order). The court lower rejected this application, as well as an application for bail on April 24.

The lawyers argued in the Bombay court that the notices were not refused by the applicants /accused on April 5, 2018 as no attempt was made to serve (the notice) applicants/ accused.

“Service of Notice not an empty formality”
The judge MridulaBhatkar highlighted the contradictions in state’s version that the workers were represented when order was passed on the basis of the court records of April 9, 2018 which shows that advocates of the accused were not present.

The Judgement observes,
 
“In the case of extension of time for filing charge sheet beyond 90 days, it is the duty of the Court to give hearing to the accused or his lawyers because his indefeasible right which is mentioned under section 167(2) is going to be affected. On perusal of the order dated 24th April, 2018, nowhere the Judge has mentioned about the presence of the advocates of the applicants/accused on 9th April, 2018 at the time of deciding the Application Exhibit 16. It appears that no advocate of the applicants/accused was present and without giving any opportunity to the applicants/accused, the order of extension oftime to file the charge sheet was passed.”
 
Referring tothe observations of the Supreme Courtin the cases of Hitendra Vishnu Thakurand Sanjay Dutt, the judgment highlights,
 
“Similarly, when a report is submitted by the public prosecutor to the Designated Court for grant of extension under clause (bb), its notice should be issued to the accused before granting such an extension so that an accused may have an opportunity to oppose the extension on all legitimate and legal grounds available to him. It is true that neither clause (b) nor clause (bb) of sub-section (4) of Section 20 TADA specifically provide for the issuance of such a notice but in our opinion the issuance of such a notice must be read into these provisions both in the interest of the accused and the prosecution as well as for doing complete justice between the parties. This is a requirement of the principles of natural justice and the issuance of notice to the accused or the public prosecutor, as the case may be, would accord with fair play in action, which the courts have always encouraged and even insisted upon.”
 
Taking a clear approach, Justice MridulaBhatkar added “In the present case, whether the notice was served, whether it is refused or it was not served at all are disputed facts and it is a word against word. All the accused are in the prison, hence it is the duty of the State to ensure their production on the date of remand either by their physical production or through video conferencing. It was not done. Therefore, the learned Judge, on 9th April, 2018 when the accused were not produced on remand date, should have directed the production of the accused either on the same day or on the next day, i.e., 10th April, 2018 and then by serving the notice in the Court ought to have given audience to the accused on the point of extension of time for filing charge sheet”
 
She added, “The service of notice or opportunity to give audience to the applicants/accused when the issue of extension of time for filing charge sheet is involved, is not considered an empty formality but all the steps are required to be taken meaningfully and effective service of notice on the accused is necessary”
 
On December 18, the state moved HC asking stay on the order which got rejected. Advocates Sudeep Pasbola, Arif Siddqui and Susan Abraham represented the workers before the High Court. 

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