The Supreme Court refused to entertain a petition filed by Lawyer’s Voice Serling coercive action against senior advocates and human rights practitioners, Indira Jaising and Anand Grover. The court however issued notice to the NGO Lawyers Collective and its founders Senior Advocates Indira Jaising and Anand Grover in the petition filed by CBI against the interim protection granted to them by the Bombay High Court in the criminal case registered for alleged FCRA violations.

Ms Jaising and Mr Grover are among the recent targets of the Modi 2 government.

A bench comprising CJI Ranjan Gogoi, Justices Aniruddha Bose and Krishna Murari also dismissed the PIL filed by NGO Lawyers’ Voice, observing that since action has already been taken by the CBI, the petition no longer survived. Lawyers’ Voice had sought criminal action against Grover and Jaising for alleged violation of Foreign Contributions Regulation Act by Lawyers’ Collective.

Most critically , the bench declined stay of the Bombay HC order which granted interim protection from arrest to the Senior Advocates. Justice Aniruddha Bose expressed that he was recusing from hearing the matter further.

The Central Bureau of Investigation had  challenged the July 25, 2019 order of the Bombay High Court which granted interim relief to the NGO Lawyer’s Collective and its founders Senior Advocates Anand Grover and Indira Jaising.

A Division bench headed by Justice Ranjit More, after hearing an application by Lawyer’s Collective seeking quashing of FIR, had directed CBI not to take any coercive steps against the NGO which works in the field of human rights and its founders until further orders.

Thereafter, the matter was listed on August 19, 2019 and the ad interim relief was continued. Court adjourned the matter and currently the website shows an auto generated dated of June 2021 as the next date of hearing.

The High Court had noted that there was no new material on the basis of which a FIR has been registered against Lawyers Collective in June this year following a complaint made by Anil Kumar Dhasmana, an Under Secretary in the Ministry of Home Affairs (MHA), alleging that the NGO diverted foreign contributions for activities not mentioned in the objects of association and that funds were used for personal expenses unrelated to these objects.

The FIR alleged that the NGO “was registered for carrying out social activities and had received foreign contribution amounting to Rs 32.39 crore between 2006-07 to 2014-15, but money was used for political purposes”.

On November 27, 2011, the NGO’s FCRA registration was cancelled and decision was taken to freeze all their bank accounts. While hearing an appeal by Lawyer’s Collective against the said decision, Justice MS Sonak in an interim order held that the Centre’s allegations of “mixing of foreign contribution with domestic funds” were “vague and bereft of reasoning.” Thereafter, Court ordered Lawyer Collective’s domestic accounts to be de-freezed.

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The centrality of post-colonial Indian State
Writing on the nature of the modern Indian State, SudiptaKaviraj, a political scientist, states that an institution that was traditionally understood as limited to basic furniture of our society has  come to be transformed into a ‘central moral force’. Perhaps the expression “constitutional morality “in our judicial decision making is coming from there and in any event “morality” finds  a place in A 25 of the Constitution of India. He goes on to describe how exactly the state has acquired this central importance.
 
‘It is implicitly invoked in every demand for justice, equality, dignity, and assistance- because all such demands can be made only in its name; and it is the state’s responsibility to meet all these expectations.’1
 
State and Constitution
One must, however, distinguish between the State and the Constitution and understand that the State is a creature of the Constitution. Another thing to which I wish to point attention is that it has always amazed me that there is no definition of “government” in the constitution. This came
home to me when I was arguing the case of Government of NCTD versus Union of India in the Supreme Court of India. The Constitution does however describe States in Schedule 1 and “Union ‘ in article 1 when it says
 
“India that is Bharat shall be a Union of states”.
Note however that this definition is a territorial one in that it describes territorial units and does not actually use the word “State” in the manner mentioned above. What Article 1 does do is to explain that India is a Federation. The Supreme Court however In my opinion does not quite tell
us what is federalism in the Indian Context. It is sometimes described as quasi-federal, sometimes as federal state with a strong center and more recently we talk about “cooperative Federalism”. All these expressions have loose meaning in the context of a one party state that we have moved towards. Take a look at the map of India on social media – India is orange!
Hence we have a host of confusing expressions: “State” “Government” and “Union”; the only unambiguous expression being “ Constitution”. The question that we must ask is- Could the modern state be anything else but all-encompassing in nature?
 
The answer to this and other similar questions lies in the experiences of American Independence movement as compared to various independence movements in the global South. In the global south, independence struggles, especially in India, have come to acquire central importance as a matter of choice. Such movements across the global south have not only faced an external enemy in the form of a colonial power but rather, at the same time, they have also fought internal enemies, of much bigger proportions, in the form of extreme poverty, socio-economic inequality, hierarchies of Caste, Race, Gender and much more.
 
A state that actively takes up the task of eradicating internal inequalities has been of primary consideration for the constitution framers. In achieving this, the constitution has also been the tool with which we the People have fought these internal enemies. Writing on India’s
constitutional moment, several scholars have expressed a similar sentiment. Uday Mehta Writes:
 
‘When one considers, for example, the Directive Principles of the Constitution or the ‘strivings’ of the state, they include a fulsome engagement with matters of health, education, individual and communal safety, equality, and prosperity. This constitutionally enshrined vision of the future is what has often been seen as implying an activist and capacious state, responsible for creating conditions for the exercising of freedom’2
 
Origins of Transformative Constitutionalism
The origin of transformative constitutionalism is traced to post – apartheid South Africa. A former Chief Justice of South Africa traces the core of transformative constitutionalism to the preamble of the Interim Constitution of South Africa which reads:
 
“A historic bridge between the past of a deeply divided society
characterized by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-
existence and development opportunities for all South Africans, irrespective
of colour, race, class, belief or sex“.
 
While Transformative Constitutionalism, with regard to its meaning, continues to draw debates in the face of different experiences across the world, key elements that define or differentiate Transformative Constitutionalism are the central role of the State (Courts included) in
fulfilling the project of emancipation and constant development of the Constitutional ideals of Liberty, equality and fraternity. It is these principles on which the society must sustain itself and the state must play an active role in constituting a society based on those principles. In
India the principle proponent of this view in the judiciary has been justice Krishna Iyer, a judge who has had an abiding influence on my own work. Reflecting on the need to interpret the constitution as a transformative document, he remarked that
 
“The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labor, the hungry, hard-working half-slave, whose liberation
was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made — the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the
principled solution of social disabilities.3”
 
DrAmbedkar, emphasizing these principles remarked that:
‘We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.
 
What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life.’4
 
The Constitution has been interpreted as a radical document that seeks to reconstitute society, while being mindful that the old hierarchies cannot be wished away. The duty of ensuring that transition is placed on a state that truly imbibes the transformative character and pursues it
relentlessly.
 
Therefore, two key aspects of the term transformative constitutionalism emerge:
 
1. It envisages attainment of substantial equality by recognizing and eliminating all forms of discrimination as they may have existed or may develop in the future;
 
2. It calls for a realization of full human potential within positive social relationships – The use of the term ‘positive social relationships’ instead of limiting it to an individual’s interactions with the state is indicative of the pervasive nature of transformative constitutionalism in the private sphere as well.
 
Differentiating this understanding of Transformative Constitutionalism from Constitutionalism, Michaela Hailbronner invites us to think of what transformative constitutionalism is not. Citing US Constitutionalism as not transformative constitutionalism, he contends that
 
‘U.S. constitutionalism does not entrust the federal state with the task of bringing about a more just and equal society. Its conception of law is “reactive,” to borrow from MirjanDamaska, and its constitutionalism4
 
Last speech while handing over the Constitution drs
represents, in Somek’s useful terms, “Constitutionalism 1.0” with its emphasis on liberty’5
 
Therefore, US constitutional experience is often understood as different from the project of transformative constitutionalism as envisaged by the global south, in which states play an activist role. This is because of the highly divisive hierarchies and acute lack of resources persisting in
countries like India and South Africa that the constitution sought to outrun. They also prevented us from developing any notion of a nation in the first place, as Doctor Ambedkar contended, since the distinctions based on caste belied any existence of fraternity, and hence a nation.
India’s constitutional moment was said to be a shift away from old practices and hierarchies. More recently and over seventy years since the Constitution came into force, the full court of the Rajasthan High Court has resolved that advocates ought not to address Judges as “ My Lord”,
given the mandate of Article 146. The Court led by the Chief Justice Ravidra Bhatt has given us a classic example of what transformation from colonialism to Republicanism could mean, even if it be in language; language after all is the most powerful tool of transformation. As I said in my open letter to the Chief Justice of India-
 
“Language is more than a mere communication tool. It is an intuitive social, cultural and political indicator, which reflects prevailing attitudes and ethos of any society.”
 
5 Michaela Hailbronner, Transformative Constitutionalism: Not only in the global south, The American Journal of Comparative Law Volume 65, 2017, Pg 527-565:
 
6 Article 14- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth This was when the Attorney General referred to me as someone else’s wife. To be fair to him, he followed this with a correction and as Justice KrishanIyer once said “we must ‘bring up our judges” and I may add,
our male colleagues at the Bar.
 
Transformations happen in these small ways on a day to day basis when we refuse to let a small injustice happen
to us. A decolonialization of the legal profession and of our laws is yet to take place. Indeed this was my own motivation in some small way to question the very institution of Senior Counsel (the equivalent of Queens counsel) and my motivation for shedding the Senior gown on 15th August 2017, Independence day. Since that day I have not worn a Senior gown despite my peers urging and they tell me “you have succeeded in that case so take back your senior gown .. “I don’t know what success means. As far as I can see, that was my Rosa Parks moment – it came to me unasked for, refusing to wear the Senior Gown. You the students at NLSU have had your own transformative moment inviting me, with full knowledge of the fact that an FIR has been registered against Lawyers Collective Anand Grover and me and our premises have been “raided” – a word that finds no place in the CrPC. I cannot resist telling you that on the day of the “raid”, Anand Grover was in court Number 4 in the Supreme Court of India arguing his partheard matter. He told the CBI officers ” I have never let down a client and asked for an adjournment and I will not do it today “ It was a defining and a testing moment for us to be out there despite knowing that we were being targeted for being human rights defenders.
This loose usage of language poses a threat to our liberties and transformative constitutionalism.
 
Towards Substantive Freedom
If the state assumes an active role in ensuring liberty, equality, freedom and other ideals enshrined, the next question that arises naturally is with regard to the content of these ideals. What are the limits to which the state should pursue these ideals and enable people to achieve these ideals? An understanding of transformative constitutionalism demands that the state actively pursue these goals and remove all barriers to enjoyment of such ideals. It is, perhaps, in this light that Amartya Sen talked about “Development as freedom” and his Capability approach.
Sen, in his book, ‘Development as Freedom’ alludes to the notion of substantive equality when he talks about the tyranny of unfreedoms which restricts growth and development of an individual. These unfreedoms that he refers to include: systematic social depravation, neglect of public facilities, intolerance, or over activity of repressive states. He argues that the denial of these substantial freedoms are sometimes related to economic poverty, which robs people of the freedom to satisfy or to be adequately clothed, obtain remedies for treatable illnesses, etc.
Continuing the same argument, Martha Nussbum and Sen conceptualize the capabilities approach better addressed the idea of well – being. When evaluating well-being, Nussbum and Sen argue, the most important thing is to consider what people are actually able to be and do. The commodities or wealth people have or their mental reactions (utility) are an inappropriate focus because they provide only limited or indirect information about how well a life is going.
 
Transformative Constitutionalism and the Judiciary
The jurisprudence around the constitutional ideals of equality, liberty, and fraternity began developing after the emergency. Recovering from the defeat of the Congress Government in the post-emergency period, the Supreme Court, in search of legitimacy, articulated the jurisprudence of Public Interest Litigation.
 
Justice Bhagwati declared that the adversarial system of the commonwealth was unsuited to Indian conditions, it was based on “selfi dentification of injury and self-selection of remedy”. Given the vast illiteracy of the people, this would not ensure access to justice I have elsewhere pointed out that it is no accident that one of the pioneers of the PIL as articulated in S P Gupta, Justice Bhagwati was also one of the authors of the ADM Jabalbur judgment. This limitation which is at the origin of PIL must be remembered as a major limitation on PIL’s itself. More recently it is very clear that PIL can be an instrument of oppression perhaps more deadly than any other since it is so heavily dependent on the “discretion” of judges.
 
And that brings me to the point out that rule of ‘discretion’ is contrary to the rule of law in that it introduces the rule of predominantly men and occasionally women. I am aware that no law can be implemented; no executive authority can function without “discretion” as a legal concept
in decision making. But India lacks a theory of
 
“abuse of process” making it possible for decision to degenerate to favoritism; face law and not case law and targeting of dissenters, under cover of law. This must be remedied forthwith. Power cannot be used for a
colleterial purpose in the name of “discretion”. India lacks a theory of responsibility for wrongdoing. India lacks command responsibility for wrongdoing . What has in fair measure, is impurity for decision makers.
 
 
No economic and social rights without civil and political rights
We at the lawyers Collective too thought when we argued the Olga Tellis case and the Bombay Hawkers Union cases that economic rights is what we need to work on – it was a magic wand that would remove poverty. I have since then realized that my generation took its civil and political
liberties for granted. We were Midnight’s Children and we inherited civil and political liberties. Life has come full-circle. Freedom and independence can no longer be taken for granted, leaving us free to work on economic rights. For many including me and Anand Grover, for
cartoonists and poets, students, dalits and farmers, for the accused in the BhimaKoregao case, the fight for liberty has just begun all over again.
 
Battling to maintain its legitimacy in the eyes of the public, in the years following the emergency, the judiciary has now reached an ambivalent space, still opening the doors to PIL when it wishes to, and closing then tight when it wishes to.
 
It is also not surprising that it was during this phase that the Affirmative Action policies came into picture through the Mandal Commission. Based on the idea of achieving Substantive equality, and subject to wide ranging debates, reservations in educational institutes, and now in
Promotions also, as approved by the Supreme Court in BK Pavitra II have been single handedly responsible for ensuring whatever little diversity in different walks of life we see today. Highlighting this importance of reservations, Justice Chandrachud in BK Pavitra remarked that:
 
“There is substantial evidence that the members of the Constituent Assembly recognized that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.”
 
LGBTQI movement and the demand for Privacy
In recent times, the jurisprudence around transformative constitutionalism has developed strongly, especially in relation to the rights of the LGBTQI communities, through a series of judgments. In what has to be considered one of the most celebrated judgments that has been delivered by the Supreme Court in recent times, in Navtej Johar v. Union of India, the court held that ‘Transformative Constitutionalism’ is considered to be one of the objectives of adopting a constitution itself.
 
The purpose of it is to have a Constitution which guides the nation of transforming itself from a medieval and hierarchical society to an egalitarian democracy to embrace the ideals enshrined in the Preamble to the Constitution. It was held that as a constitutional court whose job is to protect its people from humiliation and discrimination, it cannot provide a static interpretation to the rights of liberty and equality and remain a mute spectator to the struggle for the realization and attainment of rights. Highlighting what lays at the core of transformative constitutionalism, Justice Dipak Misra remarks:
 
“The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of “liberty” and “equality” and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature. The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights.”
 
I believe that every generation has the right to decide for themselves what the Constitution means for them, to interpret the Constitution after their own aspirations. Let us not however forget that the battle to decriminalize Section 377 was started 20 years before the Navtej’scase, by the Naz Foundation, supported by the Lawyers Collective and found its own in a judgment of the Delhi HC in Naz Foundation, reversed in Koushal most shamefully. Navtejis a reaffirmation of Naz. The judgment of the Supreme Court in NavtejJoharwas preceded by the judgment in Justice K.S. Puttuswamyv. Union of India. This judgment was instrumental in holding the right of privacy as a fundamental right under Part – III of the Constitution. While the specific contours of privacy
yet remain to be tested in specific factual scenarios, the judgment has set the ball rolling to initiate discourse rights that flow from the right to privacy such as the right to be forgotten, which will have significant impact on the functioning of the criminal justice system.
 
The Fight for Gender Justice
While the slew of judgments in Puttuswamy, Nalsar, ShafinJahan and NavtejJohar have reflected the progressive elements in the judiciary, the larger picture has no doubt been rather grim. The relief provided has been limited, and courts have largely shied away from taking any firm stand against the government of the day. Nothing epitomizes this limitation of the judiciary more than its
judgments in several cases relating to rights of women, starting from 1950’s to the recent cases of Sabrimalaand Triple Talak. Though the latter two do have a progressive impact, what is being suggested is that the reasoning could be more rigorous and transformative. The judgments of the Supreme Court starting from the case of Narasu Appuhave continuously ignored the question of gender equality on the pretext that personal law is not law within the meaning of Article 13 of the Constitution. The ghost of NarsuAppustalks the SC to this day and mainly on the rights of women. This stand of the court was later challenged in the cases of Mary Roy, Gita Hariharan, Shah Bano, Goolrookh, Sabrimala, and the Triple Talakbut the court dodged the question. Religion remains the last frontier that woman have to cross to attain equality.
 
It was only in Sabrimalathat the court has sought to address the question in the affirmative, exorcising the ghost of NarasuApputo a certain extent. In a concurring judgment, Justice D Y Chandrachud held that preventing women from entering the temple amounted to another
form of untouchability. The majority ignored the argument. I have been much criticized for categorizing menstrual taboos as “untouchability”, on the ground that I was appropriating the struggles of Dalits! My question was: “Why not?” I acknowledge that Article 17 was inserted in the context of untouchability of the scheduled castes, but there are always new and emerging forms of untouchability. I have witnessed this form of untouchability in my own family and memoirs of childhood leave a lasting impact on us in adulthood.
 
Goolrookh presents a frightening picture. The question revolves around whether a woman acquires the religion of husband on marriage, as held by the Gujarat High Court. The SC is yet to answer the question. A rather shocking proposition that a woman acquires the religion of her
husband on marriage has been upheld by the Gujarat High Court. Thus a woman has the religion of her father on birth and of her husband on marriage!
 
Also, as was shown in the recent Triple Talakcase, the Supreme Court came up with divided opinions as to why the practice of Triple Talak must be stopped. While it was held by two judges that the practice was manifestly arbitrary and unconstitutional, other Judges said it was unislamic
None of the judges said it was violation of Article 15 or 21. The court relied on the doctrine of “essential practices,” continuing the legitimacy of laws which are at the source of this discrimination. Thus, whenever the question of equal rights for women has come forward, the approach of the courts has been disappointing.
 
Interpersonal relationships
The ShafinJahancase is an illustration of transforming interpersonal relationships. Arguments in this case however ranged from questioning if Hadiya, a 24 year old Hindu woman had been brainwashed, programmed, or indoctrinated to convert to Islam and marry a Muslim man. The work of the RSS was on view in full force in protesting the marriage of a Hindu woman to a Muslim man. However, Hadiya stood in the Supreme Court, before the then Chief Justice, DipakMisra and Justices Chandrachud and Khanwilkar when the court directed that they
want to interact with her. Upon being questioned,
 
“Her crystal clear voice rang through the court room, “I want my freedom.” Did the court have any
choice at that point? No. when asked if she wanted to continue her education, she said “I want my faith and my education”. Then when it was clear that she would be sent to the college hostel she said, “I want to be
able to talk to my husband when I need to discuss anything, I want his companionship”
 
This fight for gender justice, perhaps is the story of failure of transformative constitutionalism in India.
 
A Problem from Hell
Sexual harassment at the workplace remains, “a problem from Hell” especially for women in the judicial system and now for human rights defenders as well, as they are just “collateral damage”. Once again, the impunity from legal process that judges enjoy has made it impossible to bring judges who sexually harass, to justice. I must have the singular distinction in this country of having represented woman interns, women judges, and women employees against the judges who they allegedly sexually harassed them. In one such case of a sitting High Court Judge
was impeached unsuccessfully, I had occasion to cross examine three sitting judges of the High Court in that case. As a consequence, I lost respect for the system as a whole. One of the Judges I cross examined, for this role in transferring the woman judge following the harassment,
and whose order to transfer was held to be illegal and irregular went on to become the Chief Justice of a High Court and was seriously being considered for being appointed to the Supreme Court. We now acknowledge that the “Me Too” movement has yielded no concrete results
for women in India. The Problem from Hell, a title which Samantha Power used in relation to the Holocaust, continues to plague us.
 
Tushar Gandhi takes the issue of Mob Lynching to court.
The facts and statistics are too well known to repeat here in the limited time I have on hand All I wish to say it that mob lynching is not a “ law and order “ issue but an issue of targeting on communal grounds and is thus a Constitutional and Federal issue, for which the Central
government must take responsibility.
 
Vinod Jose, executive editor of The Caravan, at a recent global conference on media freedom organized by governments of UK and Canada, remarked on these incidents:
 
“Such acts of violence were not spontaneous, but came out of a hatred and intolerance of religious minorities systematically cultivated over a long period of time.”
 
Mr. Vinod Jose was intimidated and discredited for voicing his dissent against the current regime.
 
The Attack on Students
Last five years have also witnessed a significant attack on students from different universities. Some of the biggest victims of these attacks have been RohitVemula, Najeeb, Kanhaiya Kumar, Umar Khalid, and Payal – who stood at the intersection of cast and gender and more. The
emergence of a new curse word “anti-national “ is intriguing. I have elsewhere pointed out in the context of the attack on Kanhiaya Kumar that there is no such crime in the Indian Penal Code that there is no such crime as “urban naxals’ in the context of the BhimaKoregaon
accused in the Indian Penal code, and yet more and more of us are being described as “urban naxals” and “anti-nationals”.
 
The Dilution of SC/ST Act
The recent judgment of the Supreme Court in the case of Subhash Mahajan was criticized heavily for diluting the law in favour of the SC and ST community. What was most frightening about the judgment was the fact that the Court based its judgment on the assumption that the SC ST community were “misusing” the Act – in other words, lying about their oppression .
We are all, each of us, women, SC ST, Students, minorities, and finally human rights defenders lying before the law! Who then speaks for the truth?
 
The Attack on Human Rights Defenders, the legal profession, front line defenders
In this long series of attacks, the recent targets have been the human rights defenders – lawyers who have sought to protect the values of constitution. Imagine what would happen if there were no human rights lawyers in the Country. Fortunately there are many. But an attack on lawyers is really an attack on the right to legal defense. When we talk of the independence of the judiciary we must understand that it includes the independence of the legal profession. When the judiciary sanctions attack on the legal progression , it is basically feeding upon itself . At the receiving end of this attack, among others, has been Lawyers Collective, Me, Indira Jaising, and Mr. Grover who have been victimized for taking up sensitive cases and speaking up against influential figures. Before them have come lawyers like Suredra Gadling, Sudha Bharadwaj, and  Teesta Setalvad for her defence of the victims of 2002 Gujrat. CBI raids have been ordered against the Lawyers Collective and its officer bearers on false allegations of “undermining democracy” by using FCRA funds. The way these events have transpired leave no doubts about the political
motivations behind this targeting. While defending the then Police Commissioner of West Bengal I pointed out in Court , “There is one way to get immunity form prosecution in this country, join the ruling establishment”. Do I need to say more?
 
Conclusion
Life has come full circle for me. As I said I am one of midnight’s children, I took liberty, freedom and independence for granted. I inherited it. We at the Lawyers Collective thought the battle was only for economic justice and worked in that direction. Today, I realize, my freedom was an illusion. It was foolish to thing that our rights could be guaranteed. Poverty cannot be eradicated by surrendering the right to free speech, is the devils bargain. Free speech is a necessary pre-condition for the liberation from “undeserved want.” I have lived too long perhaps. I have seen the court as a liberator. I have also seen the Courts as an oppressor. Students of Constitutional law must know that in any Petition filed under Article 32, a  fundamental right must be stated to have been violated. There is no such mention in the Petition against us an indeed there can be none. What is more, we have been accused of undermining democracy. The petition states
 
“It is submitted that the activities of respondent no 1 while being the Government servant clearly amounted to, directly or indirectly, affect or influence electoral politics, decision making process by public servants/
bureaucrats, interference with administration of justice through lobbying and media advocacy….”7
 
I did not know whether to laugh or cry when I read this. We, Lawyers Collective, have influenced electoral politics and interfered with the administration of justice? No! If we did try as alleged, indeed we must have failed miserably, as the world can now see. Transformative Constitution for us at the Lawyers Collective now means personal liberty. The right to free speech is now an endangered species of rights.
 
On behalf of the Lawyers Collective, I thank you for doing us this honor of inviting to deliver an inaugural address today on Transformative Constitutionalism, despite knowing that the CBI has registered a case against us. Life has changed. I no longer travel alone, I am surrounded by lawyers who volunteer to travel with me. That is my success and my contribution to the legal profession. Jai Hind, long live freedom In appreciation of Professor SarasuEstha Thomas, Head Center for Women and Law NLS and to the students she monitors everyday each day.
 
Indira Jaising,
Secretary, Lawyers Collective
 
1 SudiptaKaviraj, On the enchantment of State: Indian Thought on the Role of the State in the
Narrative of the Constitution
2 Uday S. Mehta, Constitutionalism, The Oxford Companion to Politics in India 2010, Pg 15-27
3 AkhilBharatiyaSoshitKaramchariSangh (Railway) v. Union of India, (1981) 1 SCC 246 : 1981 SCC (L&S) 50 at page264
 
 

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Press Release from International Commission of Jurists

Grover and Jaising are both Supreme Court lawyers and co-founders of the Lawyers Collective, a non-governmental organization.

These raids were reportedly conducted pursuant to CBI’s registration of criminal charges into alleged violations of Foreign Contribution (Regulation) Act (FCRA), a much criticized law frequently used to target human rights defenders and critics of the Indian government.

“This raid seems designed to harass and intimidate two tireless advocates of Constitutional and international rights in India,” said Sam Zarifi, Secretary-General of the ICJ.

“The Indian government must immediately cease harassment of the Lawyers Collective and its founders Anand Grover and Indira Jaising,” he added.

The CBI raids appears to be based on a 2016 Ministry of Home Affairs report, now under appeal in the Bombay High Court, and without any material change in circumstances since its release.

The raid has also been conducted notwithstanding a National Human Rights Commission statement seeking a status report from the CBI by 21 July 2019 to ensure that the investigation is “non-discriminatory and to avoid arbitrariness”.

The attack is emblematic of a broader pattern of official threats to and harassment of Indian civil society in general, and the Lawyers Collective in particular.

Lawyers Collective’s FCRA license was cancelled in November 2016, a decision that is under appeal in the Bombay High Court. The action relied upon overly broad and vague legal provisions of the FCRA that violate India’s legal obligation to respect and protect the rights to freedom of expression, association and peaceful assembly.

“The repeated use of the FCRA to target civil society including Lawyers Collective has had a devastating chilling effect on public comment about the government,” said Zarifi.

“The law should be repealed, or substantially amended to include safeguards against arbitrary use of its provisions, and to protect freedom of expression and association,” he added.

The ICJ supports the 2016 call by three United Nations Special Rapporteurs to the Indian Government to repeal FCRA, which decried the FCRA’s use to “silence organisations involved in advocating civil, political, economic, social, environmental or cultural priorities, which may differ from those backed by the Government”.

Courtesy: Indian Cultural Forum

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We, the undersigned individuals strongly
condemn the raids at the homes and offices of senior advocates Indira Jaising and Anand Grover this morning by the CBI. The raids are being carried out in both Delhi and Mumbai. This, latest in a long line of coercive tactics against Ms Jaising and Mr Grover, is nothing short of a brute show of intimidation as well as gross abuse of power. This is especially so since both advocates, well known for their pioneering work in the field of human rights and their NGO “Lawyers Collective”, have fully cooperated with the authorities ever since criminal charges were filed against them in alleged FCRA violation cases. Despite this show of cooperation, the raids that have taken place today are shocking.

The filing of criminal charges against Indian NGO ‘Lawyers Collective’, its President, Senior Advocate Mr. Anand Grover, and other representatives took place over a month ago.

A Criminal case was filed by the Central Bureau of Investigation (CBI) on June 13, 2019, relying on an investigation report of January 2016 of the Union Ministry of Home Affairs (MHA).

Lawyers Collective, a human rights organisation based in New Delhi with its registered office in Mumbai, was founded by noted Indian human rights defenders and lawyers Ms. Indira Jaising and Mr. Anand Grover. Ms. Jaising and Mr. Grover are senior advocates with an exceptional profile of public service, probity and personal and professional integrity as lawyers and as human rights defenders.

In 1986, Ms. Jaising became the first woman to be designated as a Senior Advocate by the High Court of Bombay and in 2009 she became the first woman to be appointed as an Additional Solicitor General of India. Ms. Jaisingh has been a member of the UN Committee on Elimination of Discrimination against Women (CEDAW) between 2009 and 2012. She has been a recipient of the Padma Shree (a prestigious civilian award given by the Indian government in recognition of a distinguished contribution to Indian life) in 2005 followed by the Rotary Manav Seva Award for her services to the nation.

Mr. Grover held the mandate of UN Special Rapporteur on the Right to Health between 2008 and 2014. The country’s HIV/AIDS treatment programme has evolved with the serious efforts of the HIV/AIFS Unit of Lawyers Collective, headed by Mr. Grover.

Ms. Jaising and Mr. Grover, through Lawyers Collective, have advocated for advancing the rights of the most vulnerable and marginalised sections of Indian society, including children. At several occasions, they have never hesitated to challenge the unconstitutional and anti-
people actions and policies of the State through judicial processes. The famous Githa Hariharan case is one such example among many others that we as child rights groups can immediately think of. The case led to recognition of the rights of Hindu mothers to be the natural guardians of their minor children during the lifetime of the father, and thus allowing children to access their rights using their mother’s name without hindrance. When the law against child labour was weak and silent on rehabilitation of children rescued from labour, in the landmark MC Mehta vs. State of Tamil Nadu case, Ms. Jaisingh assisted the Supreme Court as part of the court appointed Committee to lay down a clear set of directions for the labour department and other authorities for rehabilitation of children and for ensuring compliance with the law. Lawyers Collective’s report on female genital mutilation, their contribution to the evolution of a victim compensation scheme for women survivors of sexual assault and other crimes, the fight for the rights of the third gender, all have contributed to the protection and welfare of children too. The list in endless and is known to all.

Unfortunately, the Government of India has chosen to use the state machinery and its various tools against people and organisations whose contribution to upholding the constitutional values and the rule of law is well-acknowledged and recognised. The crackdown is a gross violation of India’s national as well as international commitment to human rights and social justice.

The reprisal against Lawyers Collective began in 2016 by suspending their FCRA license, which was then challenged in the High Court of Bombay. Lawyers Collective’s challenge to the FCRA cancellation and non-renewal are currently pending before the High Court. On June 13, 2019, the CBI registered a First Information Report under the Indian Penal Code (IPC) relating to charges of criminal conspiracy, criminal breach of trust, cheating, false statement made in declaration and various sections under the FCRA and Prevention of Corruption (PC) Act 1988. Filing of criminal charges while the matter is under consideration by the High Court is a blatant misuse of its agencies by the Indian Government to target critical human rights work undertaken by Lawyers Collective and its representatives, often involving sensitive cases against Indian ministers and senior officials of the ruling political party.

Such actions by the Indian Government are contrary to its pledge at the UN Human Rights Council and its obligations and commitments under several international human rights treaties and declarations as well as values enshrined in the Constitution of India. In 2016, the former UN Special Rapporteur on the Rights to Freedom of Assembly and Association, Mr. Maina Kiai concluded that certain provisions of FCRA were not in conformity with international human rights law and noted that “access to resources, including foreign funding, is a fundamental part of the right to freedom of association under international law, standards, and principles, and more particularly part of forming an association”. Mr. Kiai further called upon the Govt. of India to repeal the regressive FCRA, which was being used to “silence organisations involved in advocating civil, political, economic, social, environmental or cultural priorities, which may differ from those backed by the
Government.”

We, as citizens strongly urge:
• Such acts of intimidation like the raids must stop immediately
The criminal charges against Lawyers Collective be immediately withdrawn pending the decision of the High Court of Bombay.
• Misuse of the country’s laws and the state machinery against human rights defenders be stopped.
• All acts of harassment against Mr. Anand Grover, Ms. Indira Jaising and other office bearers of Lawyers Collective as well as against all human rights defenders in India be put to an end.
• Human Rights Defenders in the country should be able to carry out their legitimate activities without hindrance.
• The National Human Rights Commission of India take cognizance of this matter and take immediate actions under the Protection of Human Rights Act 1993 (PHRA), including a review of the FCRA under Section 12 (d) of the PHRA.

Signatories:
Teesta Setalvad, Javed Anand, Prabir Purkayastha, Maya K. Rao, Tara Rao, Anand K. Sahay, Vivan Sundaram, Geeta Kapur, Zoya Hasan, Ira Bhaskar, Mohan Rao, Sumit and Gargi Chakravarty, Anuradha Kapur, Kamini Tankha, Antara Dev Sen, Pamela Philipose, Achin Vanaik, Geeta Seshu, Hasina Khan, Harish Iyer, Mihir Desai, Firoz Mithiborwala, M. A. Khalid, Githa Hariharan, Sudhanva Deshpande, Vijay Prashad, Moloyashree Hashmi, Rakhi Sehgal, Nandan Maluste, Lara Jesani, Virginia Saldanha, Chitra Joshi, Godavar, Shakuntala Kulkarni, Cedric Prakash, Chitra Palekar, Neeladri Bhattacharya, Rithumbhara Shastri, Madhushree Dutta, I.M. Kadri, Anil Dharker, Dr V Rukmini Rao, Radhika Singha, Radhika menon, Kumkum Sangari
Bijaya Chanda, Gautam Mody, General Secretary, Chhaya Datar, Ritu Dewan, Leo Saldanha, Bilal Khan, Burnad Fathima Natesan, Vidya Dinker, Tara Murali, Seema Azad, Niti Saxena, Madhuri Krishnaswamy, Anil Varghese, Anita Rego, Nisha Biswas,  Mansi,  Shantha Sinha, Dr Sylvia Karpagam, Persis Ginwalla, Veena Shatrugna,
Arundhati Dhuru, NAPM, UP Padmaja, Democratic Rights Activist and Retd. Prof. Osmania University, Hyderabad, N Venugopal, Journalist, Hyderabad. Sharanya, Farmer, Social Activist, Koraput, Odisha Tanmay, Trade Union Activist, Bihar, Sandhya, Activist, UP, Jeevan Kumar, Human Rights Forum, Telangana – Andhra Pradesh, Mangla Verma, Advocate, New Delhi, Nandini Rao,Shohini Shohaib, Mamta Dash, Ms. Shubhada Deshmukh, Saswati Ghosh,  Meera Sanghamitra, Purnima Gupta,  Myna Mukherjee, Ekabali Ghosh, Kunal Chattopadhyay, Arundhati Dhuru, Rajkumar Sinha,
Aditya Shrivastava, Biraj Patnaik, Jothi SJ,Akhil Chaudhary, Gautam Mody, Ashlin Mathew,  Siraj Dutta, Sharada Gopal, Anil Karne, Kailash Meena, Khairunnisha Pathan, Qutubjahan Kidwai, Mukut Lochan Kalita,

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“The registration of an FIR against them under the Foreign Contribution Regulation Act, Prevention of Corruption Act and the Indian Penal Code, on the very allegations that are already under challenge before the High Court of Bombay, is a clear sign of executive haste and overreach. Pillorying them in this manner would deprive vulnerable sections of society of the benefit of representation of such high calibre and commitment. We do not wish to see a future where the voices of people such as Indira Jaising and Anand Grover are curtailed and the attempt of the State to do so must be strongly criticized”, said the statement titled ‘Standing up for those who stood with us’.

They have called upon the Central Bureau of Investigation (CBI) and the home ministry to “desist from the unjustified and vindictive use of criminal law” against its founders Indira Jaising and Anand Grover.

The signatories include persons such as Anand Patwardhan, documentary maker, Anup Surendranath, Law Professor, Javed Akthar, artist-lyricist, Naseruddin Shah & Ratna Pathak Shah, actors, Teesta Setalvad, social activist and Senior Advocates Rajani Iyer, Gayatri Singh, and Sanjay Singhvi, and a lawyers such as Karuna Nundy, Veena Gowda, and Trideep Pais etc.

They said, “The work of Lawyer’s Collective in general and Indira Jaising and Anand Grover, in particular, has contributed to changing the lives not just of individuals but of citizens of a democratic republic. They have not only represented the rights of individuals and communities such as slum dwellers, workers, trade unions, prisoners, SC/ST associations, Bhopal Gas tragedy victims, women, LGBTQ+ and other marginalised communities as lawyers, but have also contributed immensely to the discourse of human rights and state accountability as public intellectual”.

Lawyers Collective had expressed “shock and outrage” at the CBI action. In the statement, it said that it has “reasons to believe that its office bearers are personally being targeted for speaking up in defence of human rights, secularism and independence of judiciary” and to “silence them as they have taken up sensitive cases in the past”.

Last week, the National Human Rights Commission had called for a report from the CBI regarding the case, after noting that the FIR was registered almost three years after MHA filed a report against the organization. Based on the timing of the FIR, the Commission headed by former CJI Justice H L Dattu observed that it needed to examine the issue to “make it non-discriminatory and avoid arbitrariness”.

Read the entire statement here.

Courtesy: Indian Cultural Forum

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Picture courtesy BCCL

Expressing “shock and outrage” LC says they are being victimised by the State for taking on sensitive cases where the key accused are people who occupy high offices in the present government. The statement says, “In the immediate past, the office bearers of the LC have represented the  persons  detained in the Bhima Koregaon case, the Police Commissioner of West Bengal, Rajiv Kumar and while not commenting on the merits of the case, have been vocal on the subversion of due process of law in the Courts in the matter of the alleged sexual harassment by a former  employees of the Supreme Court of India.” Indira Jaising, a founding member of LC was has also been at the forefront of several key human rights cases. Recently, Jaising was very vocal about the manner in which the SC dealt with allegations of sexual harassment against Chief Justice Ranjan Gogoi. It is also noteworthy that LC founding member Anand Grover was a part of a team of lawyers that petitioned the SC on behalf of 1993 blast convict Yakub Memon to postpone his execution, just hours before he was hanged. 

The statement says, “The LC has reason to believe that its officer bearers are personally being targeted for speaking up in defence of human rights, secularism and independence of the judiciary in all fora more particularly in their capacity as senior lawyers in court. The LC sees this as a blatant attack of the right to representation of all persons, particularly the marginalised and those who dissent in their views form the ruling party. It is also an attack in the right to free speech and expression and an attack on the legal profession as such.”

It is alleged that the CBI acted against LC, its functionaries as well as certain private individuals after receiving a complaint from Anil Kumar Dhasmana who is the Under Secretary in the Union Ministry of Home Affairs (MHA). This complaint states that after inspection of the books of accounts and the records of the NGO, a prima facie violation of the FCRA 2010 was noticed. The complaint was made on May 15 shortly after a petition was filed in the SC by a group called Lawyers Voice making similar allegations.

On June 13, the CBI had filed an FIR against LC, Anand Grover and others for suspected offences of criminal conspiracy, criminal breach of trust, cheating, making of false statement in the declaration under the FCRA 2010, and criminal misconduct under the Prevention of Corruption Act, 1988. In addition to invoking the provisions of the Indian Penal Code, the CBI has charged them under Sections 33, 35, 37, and 39 of the FCRA 2010 and Section 13(2) with Section 13(1)(d) of the PC Act.

Pointing out the antecedents of Lawyers Voice, the statement said, “The Lawyers Voice comprises lawyers from the BJP and its main protagonist is Mr. Neeraj is the head of the Legal Cell of the BJP in Delhi. The organization clams it has no income and no PAN card, a mandatory requirement for filing a PIL. When the Petition was filed the LC pointed out in a press statement that the petition did not have the basic averments of a writ petition under Article 32 of the Constitution, and therefore was not maintainable. We have expressed our surprise that notice on the Petition was issued at all in the said Petition.”

This FCRA matter originally dates back to 2016, when the MHA had cancelled the FCRA license of the organisation. LC had challenged this in the Bombay High Court and the appeal is still pending before the court. According to LC’s statement, at the time of filing the appeal, LC had pointed out “that the FCRA proceedings were taken against it because its office bearers had taken up sensitive cases against the leading figures of the BJP and the Government of India, including Mr. Amit Shah, the present Home Minister, in the Sorabbudin case, amongst others.”

The MHA had also raised objections to Jaising continuing to receive remuneration from LC when she was serving as Additional Solicitor General of India. But LC had clarified, “Ms. Jaising’s remuneration was permissible under the FCRA, it was being paid by the LC was before she became the ASG and continued during and after her tenure in that capacity. Moreover she taken the permission of the Law Minister to continue to receive the remuneration under the Law Officers (Terms and Conditions) Rules, which has been admitted by the MHA. The allegation of the MHA was premised on the assumption that as the ASG Ms. Jaising was a government servant, which she was not.”

The complete statement by LC may be read here:

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Image Courtesy: Live Law

“This validates the observation of the court that 17 is attracted. The temple is also polluted by death etc, but that is not relevant! However, when a menstruating woman enters the temple, it needs to be purified?”

Earlier, Mr. Parasaran had argued that “untouchability” is a term of art, the only word which appears in double-inverted commas in the Constitution for the sole reason that it is not to be expanded- “This is a word of Norman jurists. Untouchability was practiced on the secular side too. While several castes are covered under reservation, as per the expanded meaning, untouchability is confined to the Hindu temples under Article 25(2)(b). “In case of untouchability, the treatment accorded to you is less than human…”, he had remarked.

When Justice Rohinton Nariman had asked what happens to the feeling of the woman where a Scheduled Caste woman of menstruating age is involved, Mr. Parasaran had replied that while untouchability is only aimed at the Scheduled Caste, here, the practice applies to the commoner, in general.

Under section 12 of the Protection of Civil Rights Act, the presumption will be of untouchability, Justice Nariman had probed. That Act deals with the caste system and nothing else, insisted the veteran lawyer.

In her turn, Ms. Jaising submitted,

“the word ‘untouchability’ dd not exist till the 19th century. It was Introduced in the Oxford dictionary only in the late 19th century. It Has its origin in the caste system in India; it does not exist in the UK. It is found in quotes as there was no definition of the term until the late 19th century. It should be understood as how it is generally understood- as pollution, based on caste or otherwise…the ban on women totally falls under untouchability”

She also drew the bench’s attention to the fact that a separate issue on whether the impugned practice amounts to untouchability under Article 17 had been expressly framed in the order for reference to the Constitution bench.

Further, Mr. Parasaran had suggested that Article 15 threw open to one and all public institutions of a secular character but not those of the religious category- “Three amendments were proposed during the debates in the constituent assembly to include places of worship of a public nature. All were voted against”

“The core of the judgment is based on discrimination in 15(1). But Mr. Parasaran forgets the latter part of 15(2)- it speaks of places ‘dedicated to the use of general public’. If sabarimala is not a family temple but a public temple, how can he say 15(2) has no application?”, contended Ms. Jaising in response.

“The Second answer is in article 25 itself. See the title- Freedom of Conscience. It is my conscience which is equally protected like anybody else’s. If my conscience tells me to enter, i will. Who would stop me in law? Physically, of course, i have been stopped… All we say is allow us the right to enter. nothing beyond that! nothing about the rituals the thanthri performs!”, she pleaded.

“Mr. Parasaran talked of the preamble; it speaks of liberty of worship…religion is nowhere defined in the constitution. My religion is my own…Read the preamble with the title of 25- I will ‘worship’ as per my conscience. My conscience says all Gods accept all humans, that Lord ayyappa would not discriminate against me on the basis of gender. I decide it is my religion!…25 says ‘all persons’, not all men. Is a woman also a person? That is why this court has held all persons as equal. If i am a person in the eyes of law, i have the right to worship!…that Religion is an island not subject to the Constitution is what was argued in public domain?! But Articles 15, 17, 25 and 26 have been harmoniously construed by this court…”

In so far as the jurisdiction of the court in deciding whether a religious practice is a superstition or not was questioned, Ms. Jaising indicated the Fundamental Duty in Article 51A(h)- “to develop the scientific temper, humanism and the spirit of inquiry and reform”

“In entering the temple, that is what I am doing!”, she asserted.

To this submission, Justice Nariman also added the Duty enumerated in clause (e)- to renounce practices derogatory to the dignity of women.
“Exclusion of women is derogatory! The purification ritual hurt deeply! It is a constitutional hurt, not an ordinary one! It goes to the heart of the Constitution!”, she urged passionately.

“What was at stake in the original hearing was the issue of gender justice. Can gender justice can be sacrificed at the altar of denomination?”, pressed Ms. Jaising in the light of the dissent authored by Justice Indu Malhotra.

She also pointed out that in holding Sabarimala devotees to be a separate denomination, Justice Malhotra had relied on the dissenting judgment of Justice O. Chinappa Reddy in the 1982 S. P. Mittal case.

In as much as the review petitioners had expressed doubts as to the concept of constitutional morality, she argued that there is no dispute as to its meaning- “Constitutional morality is the sum and substance of Fundamental Rights and the Directive Principles of State Policy. Nothing over that! It is not vague…some of the Fundamental Rights have been held to be part of the basic structure of the Constitution. That is constitutional morality!”

By way of answer to the repeated contention on the opposite side that the petitioners in the original proceedings are not Ayyappa devotees, she placed reliance on Adi Saiva Sivacharyargal Nala Sangam v. Govt. of Tamil Nadu (2015), where the apex court held that the freedom of religion under Articles 25 and 26 is not only confined to beliefs but extends to religious practices.

“Your Lordships had observed that where an issue of grave importance is raised, the court would not look into the locus of the petitioner…”, she submitted.

“A case for review is not made out…it is in the nature of appeal”, she concluded.

At the threshold, Ms. Jaising had set out that she was appearing for a dalit woman who had entered the temple on January 2 along with a hindu woman- “There were cries of ‘Kill them, kill them’…the woman was beaten by her own family…the mother of one of the women has received death threats…it is not just about exclusion, but social boycott! They are being prevented from accessing essential commodities…shopkeepers have been asked not to sell to them…”

“We cannot enter the temple amidst such mob riots. Women don’t go to war…Violence is not in the character of women”

Finally, Ms. Jaising prayed for a mandamus against such social ostracisation, death threats and attempts to prevent entry- “Your Lordships have categorically declined to stay the impugned judgment. The Temple is next due to open on February 12. There are two other women who are Hindus and who are desirous of visiting the Temple and have applied online. But they are being restrained by mobs…”

Courtesy: Indian cultural Forum
 

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Courtesy: Newsclick.in

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