On December 14, during the ongoing winter parliamentary session, Ram Nath Thakur, leader of Janata Dal party in Rajya Sabha, raised several questions regarding the number of cases pending in the courts for more than 25 years and the reasons behind it. He also raised questions regarding the impact of this inordinate pending on the common man who is faced with financial hardships. These questions were presented to Arjun Ram Meghwal, who is currently serving as the Minister of Law and Justice.

Meghwal provided a comprehensive response addressing longstanding pending cases in lower courts. As on 6^th December 2023, there were 2,32,047 lakh cases pending for more than 25 years. The reasons for such delays are diverse, ranging from complexities in evidence and cooperation issues to insufficient infrastructure and procedural challenges. Factors like delayed assistance from agencies involved in criminal cases also contribute to prolonged proceedings.

In a bid to show the government in a responsive light, the minister’s response also said that while the government doesn’t have direct control over case disposal, several initiatives have been implemented to expedite justice delivery. These include the National Mission for Justice Delivery and Legal Reforms, schemes for judicial infrastructure development, and leveraging technology through the e-Courts Mission Mode Project. Efforts to increase judicial manpower, set up fast-track courts, amend laws, promote alternative dispute resolution methods, and facilitate legal advice through Tele-Law initiatives have been undertaken. The government did not study the impact on the common man and laid down the reasons by themselves without any proof as they come under the exclusive domain of the judiciary.

The key issue of quality of appointment of judges, especially on counts of independence and autonomy remains a blot, however.

On December 15, during the ongoing winter parliamentary session, several ministers including Rahul Kaswan (BJP), Guman Singh Damor (BJP), K. Jayakumar (Congress), Chandrani Murmu (Biju Janata Dal), Hanuman Beniwal (Rashtriya Loktantrik Party) and Abdul Khaleque (Congress) raised several questions regarding the disposal of the cases pending in courts. These questions were presented to Arjun Ram Meghwal.

As can be seen above, the number of pending cases as well as the cases disposed has increased from 2020 till December 2023. In 2020, 30.4% cases were disposed out of the pending ones, in 2021 we saw an increase in percentage equivalent to 36.3%, in 2022 we saw a sharp rise equal to 54.7% cases being disposed of out of the pending ones and in 2023, 63.8% cases has been disposed of thereby showing a positive increase throughout.

As can be seen from above, the highest number of pending and disposed of cases from 20-23 belonged to Allahabad Court. The lowest number of cases pending and disposed of from 2020-23 were in Sikkim High Court. The number of pending cases have risen from 7,73,408 in 2020 to 10,67,245 in 2023. There was a fall in the number of cases disposed of in 2022 to 2023 from 349919 to 251524.

We can understand that in 8 years from 2014 to 2022, there has been an 11.13% increase in the number of cases pending in the Supreme Court.

We notice from the table given above, that high courts including Andhra Pradesh, Calcutta, Jammu & Kashmir and Ladakh, Orissa and Tripura have reduced the number of pending cases from 2014 to 2022, in 8 years. It is shocking to see that Chhattisgarh, Himachal Pradesh, Madras and Rajasthan have witnessed more than 100% increase in the number of cases pending during the last 8 years.

We can now understand that there are 19,575 cases pending in the Supreme Court for a duration between 5 to 20 years. There are more than 1 crore cases, 1,01,20,268 cases pending in the High Courts for a duration between 5 to 20 years.

Related:

69,768 cases are pending in Supreme Court end 2022 & 53, 51,284 in various High Courts: UoI

UAPA: 11.7% rise in cases pending trial, shows MHA data

Over 400 High Court judge posts vacant, 56 lakh pending cases: Law Ministry

The post 100% increase in number of cases pending in Chhattisgarh, Himachal Pradesh, Madras and Rajasthan courts: Parliament appeared first on SabrangIndia.

It was on March 17, 2023, during the ongoing Budget Session of the Parliament, that questions regarding representation of minorities and the marginalised classes within the judiciary was raised in the Lok Sabha. Lok Sabha Members Shri Naba Kumar Sarania (Independent) and Shri Ravikumar D raised two separate questions regarding representation in judiciary. In one query, questions on SC/ST Advocates who have been designated as Senior Advocates and Advocates on Record in the High Courts and the Supreme Court of India were raised. In the other query, representation of SCs, STs and minorities in the judiciary was raised.

High Court judges are appointed under Articles 217 and 224 of the Indian Constitution, which do not provide for the reservation of any caste or class of people. According to information provided by the Ministry of Law and Justice about the category/caste of High Court judges, the breakup of the representation of minorities and the marginalised is as follows:-

According to the data provided above, there are 569 judges present in the various high courts. Only a total of 41 out of the 569 judges are from minority communities or the SC and SC communities. Judges from the Scheduled Caste community are seventeen in number, accounting for only 2.98 percent of the total appointed judges, while 9 judges from the Scheduled Tribe are present, formulating only 1.5 percent of the total judges present as of March 15, 2023. In case of judges belonging to the minority community, a total of 15 judges are present in the High Court, which accounts for 2.63 percent of the total strength.

The full answer can be read here:

In a separate answer, it was further provided by the minister of law and justice that as on March 16, 2023, High Court Collegiums have recommended 124 names for appointment as High Court Judges which are under consideration with the Government and the Supreme Court Collegium. Out of these, 4 recommendees belong to SC category and 3 recommendees belong to ST category.

The Lok Sabha member has further inquired about the number of senior advocates practicing in the court and those who belonged to the SC/ ST community. Responding to the question, the minister provided that as per the information available in the court websites, as on December 11, 2012, there were 436 designated Senior Advocates and 3041 Advocates-on-Record in the Supreme Court of India. The High Courts have approximately 1,306 designated Senior Advocates. However, the minister also provided that no specific detail is maintained by them with regards to the social status as SC/ST of the designated Senior Advocates. 

The full answer can be read here:

From the above-mentioned data provided, it can be easily deduced that there is no adequate representation of SC/ST communities or minority communities in the higher judiciary. A deeper analysis of lack of inclusivity in the higher judiciary and the religion, caste, gender-based biases can be read here.

Related:

The question of diversity and inclusivity in the Indian judiciary Independent Views, Gender Orientation must not affect candidacy for judgeship: SC
Equality March to mark Dr Ambedkar’s Mahad Satyagraha

Dalits & OBCs denied last rites by BSF: MASUM

No data maintained on religion-wise distribution of jobs for minority communities in Public Sector Institutions: MoMA

The post Diversity in the Judiciary: Is due consideration given while appointing judges and judicial officers? appeared first on SabrangIndia.

As the year 2022 draws to a close, here is an annual round up of orders and judgements of India’s Constitutional courts — High Courts and the Supreme Court of India. In a month by month look, CJP brings you a calendar of the year gone by: through judgements and orders that paved new paths in human rights jurisprudence, bail granted to ensure that the right to personal liberty of any individual is not curtailed unconstitutionally, constitutional rights upheld and the cause of criminal justice reform advanced; bringing some hope and cheer at the year’s end.

DECEMBER:

Arrest of Indore Professor in ‘Hinduphobic’ Book Case stayed by Supreme Court

The arrest of Indore Prof Inamur Rehman in connection with allegations of “promoting Hinduphobia” was stayed by the Supreme Court. The Indore police had lodged an FIR against Rehman in connection with a “controversial” book found in the library of the college that allegedly “encourages religious fundamentalism”. Rehman was the principal of the law college, while the book in question has been written by Dr Farhat Khan. On December 19, 2022, the bench also sought the response of the Madhya Pradesh government in the matter, within four weeks.

Umar Khalid, Khalid Saifi discharged in Delhi Riots 2020 FIR by Delhi Court

Student activist Umar Khalid and United against Hate member Khalid Saifi were granted bail in a case connected to the 2020 North East Delhi riots. The case was registered on the basis of the statement of a constable wherein it was stated that a large crowd had gathered near Chand Bagh Pulia on February 24, 2020 and started pelting stones. A FIR was registered under sections 109, 114, 147, 148, 149, 153-A, 186, 212, 353, 395, 427, 435, 436, 452, 454, 505, 34 and 120-B of IPC along with sections 3 and 4 of Prevention of Damage to Public Property Act and section 25 and 27 of Arms Act. While granting bail to Umar Khalid in the FIR case, the court held that he cannot be permitted to remain behind bars on the basis of sketchy material against him. However, both Khalid and Saifi continue to remain incarcerated in the UAPA case alleging a larger conspiracy behind the riots.

NOVEMBER

Penalty imposed for misuse of Goondas Act by Gorakhpur administration by Allahabad HC

The Allahabad High Court imposed a penalty of Rs. 5 lakhs in cost, along with disciplinary enquiry, upon the district administration of Gorakhpur for the misuse and abuse of law in implementing the Goondas Act. In this case, the petitioner had submitted that district administration was not only guilty of malicious prosecution to by-pass the civil decree, but also at attempts to coerce the petitioner to release the property in dispute in favour of the district administration. The court then quashed the notice sent to the petitioner under the Goondas Act and observed that the district administration invoked the said Act against the petitioner to misuse the forum of criminal administration.

Everyone must be give an access to the burial ground irrespective of the caste or community: Madras HC

The Madras High Court bench of Justice N Anand Venkatesh, while adjudicating on a petition seeking directions to prevent the burial or cremation of dead bodies at certain government land in Pollachi, Tamil Nadu, declared that everyone must be allowed to cremate the dead bodies in the place which is notified as a burial ground, irrespective of their caste or community. The court directed the state government to take strict action if it is found that cremation of dead bodies is not being allowed based on caste.

No prima facie case against Anand Teltumbde: Bombay HC

The Bombay High Court granted bail on merits to Prof. Anand Teltumbde, accused in the Bhima Koregaon case. The bench held that no prima facie case was made out against Teltumbde to establish that he was involved in any terrorist acts. The court declared that offences under section 13 (unlawful activities), 16 (terrorist act) and 18 (conspiracy) of the UAPA are not made out against him, and only sections 38 (offences related to membership of a terrorist organization) and 39 (Offence relating to support given to a terrorist organization) were made out.

Later, on November 25, the Supreme Court rejected the National Investigation Agency’s appeal against the Bombay High Court’s decision to grant bail to Anand Teltumbde in the Elgar Parishad case. The division bench said that it will not interfere with the High Court order.  

Accordingly, Dr Teltumbde was released from prison.

Gautam Navlakha ordered to be placed under house arrest by the Supreme Court

Activist Gautam Navlakha, who is one of the accused in the Bhima Koregaon case, was granted the request for house arrest, albeit with rather stringent conditions. In addition to the age and health concerns, the court noted that while chargesheet has been filed against Navlakha on October 9, 2020 no charges were yet framed against him and that he has been in custody as an undertrial prisoner since April 14, 2020. 

The court stated that the house arrest would be granted subject to Navlakha depositing a sum of Rs. 2.4 lakhs with Navi Mumbai Police Commissioner which is a rough estimate of expenses which would be borne by the State for making available police personnel at his house arrest location. Additionally, he shall provide local surety for Rs. 2 lakhs. The house arrest has been extended until the second week of January.

No coercive action against voluntary religious conversion: MP High Court

The Madhya Pradesh High Court issued a significant ruling prohibiting the State Government from using coercion against anyone who violates Section 10 of the Madhya Pradesh Freedom of Religion Act, 2021, which calls for anyone wishing to change their religion to make a declaration to the District Magistrate in advance. The MP High Court also acknowledged that the freedom to choose a religion and the freedom to publicly express or refrain from publicly expressing those choices are both implicit in the Constitutional right to freedom of religion under Article 25.

Arrest of Shiv Sena MP, Sanjay Rautt a ‘Witchunt’ & ‘Illegal’: PMLA

A Mumbai special PMLA court granted bail to both Sanjay Raut and Pravin Raut on a Rs 2 lakh bail bond each in an alleged money laundering case. Neither the PMLA Court nor the Bombay High Court granted a stay on the operation of the bail order, as was pleaded by the ED. The said case was the Patra Chawl land fraud, which centered on the 672 MHADA tenants who were supposed to receive their new homes but that never happened. Sanjay Raut is accused by the ED of receiving 112 crores from HDIL, which he allegedly used to buy various assets and redirect to his family and business acquaintances. 

Education not business to earn profit: Supreme Court

The Supreme Court of India upheld the decision of the Andhra Pradesh High Court order quashing the state government’s decision to enhance the tuition fee in medical colleges to Rs 24 lakh per annum. The SC found the Government Order boosting the tuition cost on the grounds of the private medical colleges’ representations to be “wholly impermissible and most arbitrary and purely with a view to favor and/or coerce the private medical colleges.”  The SC’s decision encouraged the stance that education is not a for-profit enterprise, and declared that tuition fee must always be reasonable and affordable. 

Supreme Court takes 1984 Anti-Sikh Riots SIT report on record

On November 3, 2022, the summarised report submitted by a special investigation team (SIT) appointed by the court in 2014 in the cases involving the 1984 anti-Sikh riots was taken on record by the Supreme Court of India. The bench deferred the hearing of a plea seeking fresh investigation into the 1984 riots for two weeks to enable an examination of the SIT report. In this fresh petition filed, the petitioners have cited the SIT report filed on November 29, 2019, to argue that the authorities have been conducting sham trials. Now that the report has been taken on record, the top court said it will go through the report and the hearing will take place in two weeks. The matter is yet to be listed.

Mere possession of banned literature as an offence runs counter to rights under Article 19: Delhi Court

It was observed by a Delhi Court that for cases filed under the Unlawful Activities (Prevention) Act, (UAPA) mere possession of “jihadi literature” having a “particular religious philosophy” would not amount to an offence unless there is material to show execution of such philosophy to commit terrorist acts. The court further observed that the proposition that holding mere literature is a crime runs counter to the freedoms and rights guaranteed by Article 19 of the Constitution. The abovementioned statement were made by the court as it prepared charges for nine defendants in a National Investigation Agency investigation involving the online spread of ISIS ideology. 

OCTOBER

Two Finger test is “regressive” and “intrusive” and lacks any scientific support: Supreme Court

The Supreme Court ruled that anyone who performs the “two-finger test” or per vaginum examination on a victim of an alleged sexual assault shall be considered to have engaged in unprofessional conduct. In the said case, the rape and murder victim was examined by the Medical Board, who used the “two-finger test” to see if she was accustomed to having sex, the Court had noted. The Bench had then remarked, “It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.” The court further declared that anybody who undertakes the “two-finger test” in violation of the directives of this Court shall be guilty of misconduct.

Plea to conduct carbon dating test of “shivling” by Varanasi Court

In the Shringar Gauri case, a Varanasi court rejected the plea filed to conduct carbon dating of a structure discovered in the Wazu Khana (ablution tank) of the Gyanvapi mosque. District Judge Ajay Krishna Vishwesha cited the possibility of causing damage to the structure as the reason for rejecting the plea. The Supreme Court had previously ordered that the structure and the spot where it was found be protected from damage. The Allahabad high court also fixed January 18, 2023, for further hearing on another revision petition filed by Laxmi Devi and others challenging the Varanasi district judge’s order by which the lower court had refused the demand of carbon dating of a ‘Shivling’ claimed to have been found in the Gyanvapi mosque complex.

Wearing a ‘provocative dress’ is no license to a man to outrage a woman’s modesty: Kerala HC

While upholding the order granting bail to sexual harassment accused Civic Chandran, the Kerala High Court struck down the contentious remarks made by a Kerala Sessions Judge who had determined that a sexual harassment claim would not be supported by the evidence if the victim was dressed in a “sexually provocative clothing.” When issuing the ruling, Justice Edappagath noted that a victim’s attire could not be the ground for a defense to get rid of the accusation of outraging a woman’s modesty.

Essential to maintain detention centres in good condition: Rajasthan HC

The Rajasthan High Court called for proper maintenance of Detention Centres, facilities where foreign nationals awaiting repatriation with their home countries are lodged till deportation. This order was significant, and might have an potential impact on other such facilities, especially those in the state of Assam, where people accused of being illegal immigrants are incarcerated, pending deportation or bail. In this case involving Tanzanian nationals lodged at a detention centre in Alwar, the court had directed authorities to inform them about steps taken to maintain the detention centre in ensuring that all required logistics and repairs, etc. of the Detention Centre are catered to immediately.

SEPTEMBER

Evidence against Sharjeel  Imam was “scanty and sketchy”: Delhi Court

Sharjeel Imam was granted bail by a Delhi court in a sedition case wherein he has been charged with making a “provocative remark” that allegedly incited violence in the Jamia Nagar neighborhood in 2019. The judge noted that after going through the evidence provided, the court was of the prima facie view that the case against him was sketchy. Imam has nonetheless continued to be in prison as he hasn’t received bail in the Delhi communal riots conspiracy case lodged against him.

Women, Sick & Infirm may get bail under PMLA: Delhi HC

In a case concerning the Prevention of Money Laundering Act PMLA, the Delhi High Court ordered that exceptions on granting of bail must be made where the accused is a woman, or below the age of 16 or is ill. The observations were made by the Delhi HC after observing that the strict bail requirements provided under PMLA makes it challenging for an accused to seek bail. This judgment comes after the Supreme Court upheld the twin bail conditions under PMLA, which states that an accused person cannot be released on bail unless there are reasonable grounds to believe that they are innocent and that they are not likely to commit any crimes while out on bail. Adding to this, the Delhi HC iterated that the legislature’s intent to incorporate relaxations for persons below 16 years of age; a woman; or one who is sick or infirm can be observed from a perusal of the Section 45(1) of the Act.

All women entitled to safe and legal abortion, married or unmarried: Supreme Court

A Supreme Court bench consisting of Justices DY Chandrachud, AS Bopanna, and JB Pardiwala held that the 2021 amendment to the 1971 Medical Termination of Pregnancy Act ensures that both unmarried and married women are able to access safe and legal abortion. Through this order, the rights that were earlier only available to married women under the MTP Act, to abort a foetus, will now also be available to unmarried ones. Significantly, the bench in this path-breaking order also held that any pregnancy alleged by a pregnant woman to be caused by force is rape.  in addition to this, the order also recognises the phenomenon of rape within marriage, a concept still under adjudication

Gujarat ex-DGP R B Sreekumar granted interim bail by Gujarat HC

The Gujarat High Court granted retired DGP RB Sreekumar temporary release till November 15, 2022. The court also gave him permission to seek a regular release in connection with accusations of “fabricating evidence related to the riots of 2002” and make an application before the Sessions court.

Although Sreekumar had requested bail before the high court prior to the chargesheet’s filing, the court advised Sreekumar’s advocate Yogesh Ravani to receive instructions if Sreekumar preferred to request bail before the sessions court due to the altered circumstances that have arisen since the chargesheet’s filing. According to their instructions, they took the option of getting interim protection from the High Court and will be approaching the Sessions Court with a fresh bail application. The HC had first granted Sreekumar interim bail on September 28 until November 15, which the HC had further extended by 10 days. After his hearing on November 25, his interim bail has further been extended by 2 months. The court has now kept the regular bail plea hearing on January 23.

Punjab & Haryana HC orders the formation of SIT to investigate the missing report of the Justice Gurnam Singh Commission Report

In the Saka Nakodar case, the Punjab and Haryana high court sent a notice to the Punjab government instructing them to form a special investigation team (SIT) to look into the “missing” portion of the Justice Gurnam Singh Commission Report in an effort to ensure justice and the truth for the relatives of those killed in the Nakodar police firing of 1986. On February 4, 1986, four Sikh men who were taking part in a peaceful religious march and protest in Nakodar, against the desecration of Sri Guru Granth Sahib, were shot and fatally wounded by Indian security forces.

The first portion of the investigation report was presented to the Punjab Assembly on March 5, 2001, however the second portion of the report was never presented. What was reportedly missing from the Punjab government’s possession was the second part of the Commission report dated October 31, 1986, which comprised major evidence, exhibit files, sworn testimonies of police officials, administrative authorities, and witnesses, among other things.

Re-evaluate premature release policy for convicts serving life terms: SC

The Supreme Court ordered the UP government to consider releasing qualified life offenders covered under its 2018 policy within four months in an objective and transparent manner, with priority to elderly and ill inmates. The Court ruled that the State must diligently evaluate the cases of eligible inmates for remission after noting that numerous offenders languish in jail while serving lengthy sentences because they lack access to legal resources to seek for remission. The decision followed a petition by more than 500 prisoners who objected to Uttar Pradesh’s new policy on premature release, which disqualified them despite serving 16 years of their sentence.

Journalist Siddique Kappan granted bail in Hathras conspiracy case by Supreme Court

The Supreme Court granted bail to Kerala journalist Siddique Kappan, who has been under the custody of the Uttar Pradesh police since October 6, 2020. He faced charges under the Unlawful Activities Prevention Act (UAPA). Kappan was arrested while he was on his way to Hathras in Uttar Pradesh where a Dalit woman had died after allegedly being gang-raped. A bench comprising the then Chief Justice of India U.U. Lalit and Justice S. Ravindra Bhat granted him bail, directing Kappan to remain in Delhi for the next six weeks after the release from an Uttar Pradesh prison and also mark his presence with the local police station every week.

However, Kappan continued to remain incarcerated in jail because a local court in Lucknow had rejected his bail in the PMLA case on October 31. Even under the UAPA matter, in which he was granted bail, the verification sureties, including the one given by former vice-chancellor of Lucknow University, Roop Rekha Verma, have still not been completed by the authorities.

Teesta Setalvad granted interim bail by Supreme Court

Journalist and human rights activist Teesta Setalvad was granted interim bail by the Supreme Court in the case where she faces trumped up charges foisted upon her by a vindictive regime. On June 25, 2022, just a day after the Supreme Court dismissed a Special Leave Petition (PIL) moved by Zakia Jafri seeking a proper investigation into the wider conspiracy behind the 2002 Gujarat carnage, a team of the Gujarat Anti-Terrorism Squad (ATS) barged into her Mumbai home and forcibly detained her, without arrest warrant or disclosing the FIR. The charge sheet filed by the SIT specified the crime of reportedly “fabricating evidence” and engaging in “forgery” in cases connected to the 2002 Gujarat riots.

On July 30, the Sessions Court rejected Setalvad’s bail application, following which she moved Gujarat High Court. The HC in turn issued notice in the case on August 3, but set the hearing for September 19. The court did not grant Setalvad any interim relief during this period. Thus, she moved SC. The SC bench comprising Chief Justice UU Lalit, S Ravindra Bhat and Sudhanshu Dhulia, while granting her bail, observed, “In our view, the appellant is entitled to the release on interim bail.”

While hearing the arguments of the case, the SC bench had observed that the petitioner i.e Setalvad had been in custody for over two months, during which no charge sheet had been filed. It noted that the FIR was filed just the day after the judgment in the Zakia Jafri case, and doesn’t contain anything other than the SC’s observations in the judgment. Moreover, the Gujarat High Court gave a long adjournment after Setalvad applied for bail, making the notice to the State returnable in six weeks. The charges are not pertaining to serious offenses like murder, instead they deal with alleged forgery of documents filed in court, allegations over a decade old, and thus, the offenses do not bar the grant of bail.

AUGUST

Azaan on loudspeakers does not violate fundamental rights of people of other faiths: Karnataka HC

The Karnataka High Court disposed of a Public Interest Litigation filed against the contents of Azaan, which alleged that it hurts the sentiments of believers of other faiths. The court observed that Article 25 and 26 of the Constitution embody the principle of “religious tolerance” which are a characteristic of Indian civilization. The court further noted that the contention that the contents of Azaan and the words “Allahu Akbar” violate the fundamental rights guaranteed to the petitioner as well as persons of other faith cannot be accepted.

Right to free speech and expression includes the right to publish and circulate one’s opinions: Delhi HC

The Delhi High Court passed an order in an interlocutory application by a media house against online news portal Newslaundry for allegedly ridiculing and defaming its news broadcast and anchors through its content. The Court refused to grant any interim relief to the plaintiff (media house) and dismissed its application for interim relief.

The observations made by the court during this order were significant. While the court reiterated a largely conventional and existing view that there needs to be a balance between the right to reputation and right to freedom of speech, the court also recognised the diversity in reporting of news in India. And most importantly, the court noted and ascribed importance to satire in democracy and stated that satire is devoid of malice. The significance of this observation lies in the fact the court sees satire as something that goes beyond malice or harm to reputation. 

Case seeking removal of Shahi Idgah in Krishna Janmabhoomi case stayed by Allahabad HC

In the Krishna Janmabhoomi – Shahi Idgah mosque dispute, the Allahabad High Court stayed the proceedings in a suit filed before a Mathura court that had sought removal of the Idgah. The Krishna Janmabhoomi- Shahi Idgah dispute is revolving around the Krishna Janmasthan Seva Sangh that looked after the Katra Keshav Dev temple property, and had allegedly entered into an illegal compromise with the Committee of Management of Trust Masjid Idgah in 1968, by way of which a huge chunk of land was given to the Idgah including the spot where the deity was born.  

Cannot evict persons with “Bulldozer” and leave them shelterless without any notice: Delhi HC

Dealing with a plea filed by Shakarpur Slum Union (the Union) against the alleged the 3-day demolition overnight drive conducted without any prior notice by Delhi Development Authority (DDA) officials in the Shakarpur district of Delhi, the Delhi High Court observed that persons cannot be evicted with a bulldozer at their doorstep “early in the morning or late in the evening” without any notice, rendering them completely shelterless.

The court issued directions to the DDA to carry out further demolition only in consultation with the Delhi Urban Shelter Improvement Board (DUSIB) Policy. The Court further directed the DDA to give sufficient time to the residents to make alternate arrangements, or, steps should be taken to accommodate the dwellers in the shelters provided by the DUSIB for three months so that the persons, whose jhuggis are being demolished, are able to find some alternate accommodation.

Dr. Varavara Rao granted bail on medical grounds by the Supreme Court

The 84-year-old Telugu poet, Dr Varavara Rao who is one of the accused in the Bhima Koregaon conspiracy case, was granted bail on medical grounds by the Supreme Court. The order by the SC came as a particular relief as the court also did away with the Bombay High Court’s condition for him to surrender after three months. Rao had filed a Special Leave Petition (SLP) challenging a Bombay High Court order that denied him permanent bail on medical grounds. Rao had been granted temporary bail on medical grounds in April, 2022 but there was a requirement for him to surrender at the end of the bail duration. 

The court allowed Rao to seek medical attention as per his choice and keep the NIA authorities informed of his medical condition. The court also ordered Rao to not leave the area of Greater Mumbai without express permission from the Special NIA Court. The court also forbade him from contacting any witnesses or doing anything to influence the investigation. 

JULY

Mohammed Zubair granted interim bail in all UP Police FIRs by the Supreme Court

In July, 2022, the Supreme Court ordered the release of co-founder of AltNews a fact-checking web portal, Mohammed Zubair, on interim bail in all UP police FIRs and said that the case should be handled by one investigating authority i.e. Special Cell of Delhi Police. The SC also refused to impose a bail condition on him to prevent him from tweeting again, and stated that “We can’t say that he won’t tweet again. It is like telling a lawyer that you should not argue. How can we tell a journalist that he will not write? If there are any tweets against the law, he will be answerable.”

Zubair was first arrested by the Delhi police on June 27 over a tweet posted by him in 2018 and was later remanded in the other FIRs registered by the UP Police. Zubair was charged under IPC sections 153A (promoting enmity), 295A (acts to outrage religious feelings), and 298 (uttering words to wound religious feelings), along with section 67 (publishing or transmitting obscene material) of the Information Technology Act.

Every Muslim is entitled to offer prayer in a mosque and get a decent burial according to civil rights: Kerala HC

In a petition filed by a Wakf trust arguing that since some of its members had changed to a different sect, they were not entitled to offer prayers and bury their dead bodies on its property, the Kerala High Court ruled that every Muslim has the right to offer prayers in any mosque or bury their dead in a public kabaristan (burial ground). The court further held that this right cannot be obstructed based on their sect.

JUNE

Concrete action plan needed to curb child exploitation and labour: Rajasthan HC

A PIL was filed with the Rajasthan High Court with the plea to institutionalise effective machinery and mechanism for rescue and post rescue rehabilitation of all child labourers in the State of Rajasthan. The bench comprising acting Chief Justice Mr. Mahindra Mohan Shrivastava and Mr. Justice Sameer Jain, while hearing the petition observed that a number of child labourers were subjected to unfair police actions and were later rescued. Large number of criminal cases have also been registered against those involved in child trafficking and exploitation of children in various small/large scale industrial and commercial activities. The court found that action has also been initiated where a child labourer were found dead.

Later in July, the Rajasthan High Court permitted impleadment of the Centre’s Labour Department in a PIL seeking to institutionalise a ‘rescue and rehabilitation mechanism’ for all child labourers in the State.

Trans woman allowed to seek family pension after parents’ demise by the Orissa High Court

A Petition was filed before the Orissa High Court seeking directions to the opposite parties to sanction the family pension in favour of the Petitioner, who is a trans woman, and an unmarried daughter of the late Balaji Kondagari, who was a government servant, within the stipulated time frame. The HC then allowed the petition after considering the view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992.

MAY

The police and other law enforcement agencies should be sensitised to the rights of sex workers: Supreme Court

The Supreme Court, while hearing a matter pertaining to the right of a sex worker to live with dignity, clearly held that the basic protection of human decency and dignity extends to sex workers and their children. The bench also emphasized on ensuring that the police and other law enforcement agencies should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity. The Bench further made directions that sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the Code of Criminal Procedure, 1973.

In the same order, the Supreme Court also directed the UIDAI to provide sex workers with Aadhaar cards without requiring address proof, and maintaining confidentiality of their data. The court had also brought up the issue of sex workers being inordinately and are forcefully sent to shelter homes and asked all concerned to reach a consensus in the said issue. While discussing the aforementioned, the court had commented that sex workers are entitled to equal protection of the law. Criminal law must apply equally in all cases on the basis of age and consent. When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action.

Supreme Court Orders that Sedition Law is kept in abeyance

While hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the Indian Penal Code, the Supreme Court ordered that the Centre and state governments are to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre. The court held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice to the accused.

Cruel, diabolic, barbaric, gruesome and inhuman: Allahabad High Court on Lakhimpur Kheri massacre

Dealing with the bail applications of four associates of Lakhimpur Kheri prime-accused Ashish Mishra, the Allahabad High Court dismissed the said bail applications citing possible tampering of evidence. The bail applications of Ankit Das, Sumit Jaiswal, Shishupal and Lavkush, all of whom were allegedly active participants in the planning of the Lakhimpur Kheri Massacre, were rejected by the court keeping in mind their political influence. The court also commented that several innocent lives got lost in the most cruel, diabolic, barbaric, gruesome and inhuman manner.

Once declared citizen, a person cannot be declared foreigner by FT as per Res Judicata: Gauhati HC

In a landmark judgment, the Gauhati High Court has ruled that the principle of Res Judicata applies to orders passed by Foreigners’ Tribunals (FT). This meant that if an FT finds a person to be an Indian citizen, the same person cannot be tried again or declared foreigner. The Gauhati HC gave the aforementioned judgment while hearing a batch of 11 petitions of persons who were appealing against FT orders that had declared them foreigners, the common theme running through all cases being the applicability of the principle of Res Judicata.

APRIL

Jignesh Mevani gets bail in two cases filed against him by Assam court

Jignesh Mevani was first arrested by the Assam Police on April 20, 2022, from the Palanpur circuit house in Banaskantha district in Gujarat at around 11:30 P.M on the complaint of a BJP member from Kokrajhar about his allegedly offensive tweets. In the said twitter case, he was granted bail on April 25, shortly before being arrested again by the Barpeta Police. The second time he was booked under IPC sections 294 (obscene acts and songs), 323 (voluntarily causing hurt), 353 (assault or criminal force to deter a public servant from discharging duty) and 354 (outraging the modesty of a woman) for allegedly assaulting a woman police officer and preventing her from doing her duty. While the lower court in Barpeta had denied him bail, Mevani was granted bail by the High Court.

Anganwadi workers, helpers entitled to gratuity payment: Supreme Court

The Supreme Court declared that Anganwadi workers (AWWs) and Anganwadi helpers (AWHs) are entitled to gratuity payment under the Payment of Gratuity Act. The Bench directed that within 3 months from the said judgement, the state government is required to take the necessary steps to extend benefits to provide the simple interest at 10 percent per annum from the date specified under sub-section 3A of Section 7 of the Act. The top court further observed that the role of AWWs and AWHs is not only at war against malnutrition but also country-wide threats like the Covid-19 pandemic. The court said that these frontline women workers were the backbone of the ICDS.

Ashish Mishra’s bail set aside by the Supreme Court

The apex court set aside the bail granted to the main accused in the Lakhimpur Kheri violence in light of recent attacks upon case witnesses and concerns raised by victims’ families. Following Ashish Mishra’s bail in February amidst Uttar Pradesh elections, two witnesses in the district survived assaults and faced death threats. In view of this, the Supreme Court held that a victim of a crime has the unbridled participatory right in the criminal trial process i.e., they have a right to be involved in decisions that affect them most. In bail processes, the court is required to consider victims’ safety and security. As such, the top court criticised the Allahabad High Court for failing to consider judicial precedents while granting the bail and set aside the bail order.

Maha gov’t to withdraw pending criminal cases against farmers and social activists: Bombay HC

The Aurangabad Bench of the Bombay High Court directed the Maharashtra state government to make applications for withdrawal of cases pending against farmers and social activists across the state which were filed in course of agitations/demonstrations, and directed the subordinate courts to decide these applications on a priority basis. This was in connection with the petition filed by Ajit Babanrao Kale seeking directions against the government to implement the policy decision as per Government Resolution and to close the FIRs/criminal prosecutions filed against civilian protesters involved in peaceful, democratic protest in Mumbai against the Citizenship Amendment Act (CAA), the National Population Register (NPR) and the nationwide National Register of Citizens (NRC) between January and February 2020.  There is no update from the government about submitting these withdrawal applications.

MARCH

Ishrat Jahan granted bail in the Delhi Violence wider conspiracy case

The Karkadooma Sessions Court granted bail to lawyer-activist Ishrat Jahan after 25 months of incarceration under UAPA charges for the alleged participation in a larger conspiracy in the Delhi violence that broke out in February 2020. Ishrat was arrested initially on February 26, 2020, on charges of “inciting violence, rioting and attempt to murder” under the Indian Penal Code. After spending a month in judicial custody, Ishrat along with four others were granted bail by Additional Sessions Judge Manjusha Wadhwa on March 21, 2020. The court had noted that the role assigned to Ishrat is that she incited the crowd to remain present at the protest spot as well as raised slogans of freedom, however, no overt act had been imputed to her regarding taking law into her own hands. On the same day, she was re-arrested under UAPA charges and had remained in jail till she was granted bail in March. 

Penetration was not a necessary ingredient for invoking the crime under Section 377: Punjab & Haryana HC

The Punjab and Haryana HC expanded the scope of Section 377 of the Indian Penal Code (IPC) that deals with “Unnatural” sexual offences, and held that it will be invoked even if penetration is on any other part of the body. This was a case wherein a complaint was filed by the father of an 8-year-old child, who was subjected to sodomy and unnatural act of carnal intercourse by the accused in school. The court further referred to the testimony/statement of the victim, and held that reliability and admissibility of the statement of the said witness cannot be discredited merely for want of corroboration through medical evidence especially when the charge is of a non-penetrative sexual assault.

FEBRUARY

Right to protest not taken away if law is challenged before court: Andhra HC

The Andhra Pradesh High Court reiterated in its judgement that merely because a law is challenged before a court, it does not take away the right to protest it. The division bench held that approaching a constitutional court for redressal of grievances ipso facto would not disentitle a citizen from protesting in relation to the same subject-matter. In the said case, the agitation was on a grievance towards pay scale which was pending before the High court. The court further clarified that it will look at the dispute only from a legal lens, based upon settled parameters of adjudication and stated that the purpose of the protest was to draw the government’s attention to an issue.

Whatsapp group Admin not vicariously liable for posts by members: Kerala HC

In a case where a Whatsapp group member posted a child pornography clip on the group, that led to the group admin also being implicated in a POCSO case, the Kerala High Court has ruled that the admin (administrator) of a Whatsapp group is not vicariously liable for an objectionable post made by a group member.

JANUARY

Bail granted by Allahabad HC to prime accused Yogeshraj stayed by the Supreme Court

The Supreme Court stayed the bail granted by the Allahabad High Court to Yogeshraj, the main accused of the Bulandshahr mob-violence case, and had ordered him to surrender within seven days. Staying his bail, the SC observed in its order that the matter is quite serious where under the pretext of the cow slaughter, a police officer has been lynched. Prima facie, it is a case of people taking law into their own hands. 

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The post 2022: Looking back at the best judgments from Indian courts appeared first on SabrangIndia.

Long speeches are not necessary for me because I am neither a lawyer like my friend Maneshinde here; nor am I a politician, looking at the dress he has worn. 

The buzz word in the atmosphere today is Ram, am I right? So let me quote from the Ramayana. I don’t know how many of the Ram people have actually read the Ramayana.  A piece of advice given by Vibhishana to his elder brother Ravana was to tell him to restore Sita to her husband, Ram to save Lanka from being destroyed. Instead, Vibhishana gets fired. Ravana says you are my brother. You are against me? Vibhishana replies: Sulabhah purusha rajan, satatam priyavadinah. apriyasya tu pathyasya, vakta shrota cha durlabhah.   

What Vibhishana says is: Oh king, mighty king, people are always talking to you very pleasantly, very pleasingly; but you will not find a person who will speak the truth to you if it is bitter; nor will you find a person who is willing to listen to the bitter truth. 

That Ladies & gentleman is a job of a journalist. To speak the truth to the powers that be. 

Incidentally that is also my job as a judge. 

Now two professions are required to be necessarily independent. Everybody else can afford to be not independent. A Judge and a journalist. If they falter, then the whole of democracy gets shaken up. 

The first is called the fourth estate. Which are the other three estates of the state? The Legislature, the parliament, and the judiciary. Imagine a situation when they cozy up to each other? Then what happens? Who is there to take care of the situation? It is the job of the journalist to speak the truth to them and say: hey you guys are wrong here. The job of (truth) the journalist is to put the facts as they are before the public. The journalist who loses his independence, is as bad as the judge who has lost his independence. 

Now there are various ways of making a journalist lose his independence. Gurbir talked about situations of threat. Threat by…. Raid by ED, CBI and you name whatever other the investigating agency. Incarceration for long periods of time with or without bail, constant surveillance by the police. These are some of the methods by which the independence of a journalist can be lost. Of course, there is the other subtle way, more subtle way of cutting off their revenues and making sure that the entire business itself collapses. 

But friends, these are as rightly pointed out by my friends during the debate the incidents as they came. Now picture the game. If you are a cricketer, you are not going to be bothered about the ball hitting you somewhere, but you are going to stand up to the fastest bowler and make sure that ball is hit right across the boundary for a sixer. That is what the journalist is required to do and that is what we saw some of the senior journalists who have done that and they have been honoured. 

To the youngsters, remember you are into a profession where honesty is really the best policy. Be honest to yourself. Be sure that your conscience tells you what you are doing is right. Now as a judge we always call it the judicial conscience; and I always say it is the journalist conscience which must tell him or her whether what that person is doing is right? Is it intended for the betterment of society, is it intended for the betterment of all fellow citizens? If this is the test, then you adopt it never mind what other threats come your way.

Yes, I mean I am quite sure I have seen the emergency and what happened to the Indian Express, how the Indian Express was harassed time and again by cutting off the newsprint, by cutting off the power supply, terminating the lease of the building. These are all the methods adopted by the powers that be all over the world. There is nothing strange about India. 

I was told that we are still a free country. I also believe that it’s a free country. Yes, that there are signs which give us cause for concern. Gurbir gave a whole long list of them. I don’t want to go into the data. I assume that he has collected his data truly and represented it truly. If that be true then there is cause for worry. Cause for worry not only to the journalist, to every individual also. Is this really happening? Are the journalists being bumped off in this country? Some of them have been bumped off. Are the journalists being arrested for no reason. Maybe let off after five ten years in incarceration. 

Are the journalists being subjected to this kind of open or veiled threat? if that is happening then the fourth estate is going to be completely denuded of its power to sustain democracy. 

And when that happens ladies and gentlemen, as we said when Caesar falls, you and I all fall together. So let’s hope that such a situation does not happen. That the youngsters of the day are able to manage with the situation, face the situation, face it bravely and come out on top. 

Thank you very much for giving me this opportunity of saying a few words. 

God Bless you all.

(Full transcript of Justice Srikrishna’s address at the RedInk Awards 2022; Justice BN Srikrishna was the one made Judicial Commission of Inquiry that investigated the causes for the Bombay communal violence 1992-1993. Sabrang Communications had then published the complete report; it may be read here.

Note: Senior journalist T.J.S. George was presented the RedInk Award for lifetime achievement for his distinguished career as an editor and columnist. In the 1960s, George (94) was the editor of the Patna-headquartered newspaper The Searchlight known for its anti-establishment stand. The Mumbai Press Club’s ‘Journalist of the Year’ Award for 2021 was given to Om Gaur, National Editor of Dainik Bhaskar for leading a team of reporters and photographers that “tirelessly exposed the tragedy of Covid deaths” in UP’s towns and cities along the river Ganga.

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Within a year of the Modi 1.0 government of 2014 coming to power, the stage had been set for what has been a long period of confrontation. On July 18, 2015, Teesta Setalvad, journalist and civil rights activist had written this piece for The Indian Express. It remains relevant today

The tone of this government’s argument for the National Judicial Appointments Commission recalls how a former regime browbeat the judiciary in the run-up to the Emergency. What is starkly different is a chilling silence, except rare exceptions, from the Bar.

The formal declaration of the Emergency was preceded by a period when the government, bit by bit, in a sinister manner, eroded the independence of the judiciary. The separation of powers, on which the basic structure of the Constitution rests, is firm in the fundamental formation of both judicial autonomy and independence. It is this judicial integrity, autonomy and independence that are under assault and severe threat today.

The tone and tenor of Attorney General Mukul Rohatgi when he made his arguments in support of the National Judicial Appointments Commission were not only unbefitting of the post but reflected the downgrading of the office, which has been reduced, by successive governments, from a constitutional authority qualified to advise the court (even if this militated against an act of the government) to a defence counsel, defending the policies of and individuals in the government.

So, among other things, Rohatgi said Parliament is supreme in our system and even the Supreme Court needs to bow before it. How inherently wrong this interpretation is. The appointment of judges, their elevation to the highest position as chief justices of high courts and chief justice of India, their transfer among high courts — all these moves manifest the inherent powers that must both be autonomous and independent. Appointments and transfers cannot be at the behest of a government, though, in a democracy, the government and opposition must play a significant role. That the present system requires correction is true; that the appointments of judges needs to be open to scrutiny and tests of representation is also valid; but the new path must answer to tests of transparency and accountability, not further obfuscate them.

Once before, between 1973 and the actual declaration of the Emergency, we experienced the brute overreach of executive power, manifest not just in the taking of political prisoners but in a move to manipulate the Supreme Court and, through it, India’s higher judiciary. On April 25, 1973, the government had, in a shocking move, superseded for appointment as chief justice of India the three seniormost judges, Justices J.M. Shelat, K.S. Hegde and A.N. Grover, and appointed Justice A.N. Ray. The reaction from the Bar was swift and instantaneous.

In Bar associations across the country the outrage was unanimous, and the expression of it, courageous.

Over the last few months, the country has been witness to the face-off between the government and the Supreme Court. In the next few weeks will come a decision from the court that will, whichever way it goes, have a lasting impact. There has been little substance and even less grace in the attorney general’s arguments. That our higher judiciary is facing a serious issue of credibility — a result of both perception and reality — makes this face-off even more sinister. The regime is riding high on this perception, never mind the fact that it represents a worldview that has shown, through past and present conduct, scant respect for fundamental rights or the Constitution.

Given this complex scenario, it becomes necessary to look closely at the present attempt (even more crass than in the 1970s) of the executive to browbeat our judiciary. We need to go back to the May of 1973, when a historic protest meeting was held in Bombay. The galaxy of speakers that addressed the meeting included M. Hidayatullah, J.C. Shah, C.K. Daphtary, H.V.R. Iyengar, K. Subba

Rao and, of course, N.A. Palkhivala. My grandfather, M.C. Setalvad, India’s first attorney general, was among the speakers. I was 11 at the time.

The speeches were inspiring and erudite. (They were reproduced later in a booklet, A Judiciary Made to Measure, published by Palkhivala.) Setalvad and Palkhivala had both reacted sharply to senior lawyer and Union minister M. Kumaramangalam’s speech in Parliament defending the government’s action. There is a chilling similarity between what was said then and what Rohatgi is saying today.

Kumaramangalam said that since Parliament was supreme in India, it was but natural that, when it comes to the appointment of the chief justice, the government would select a person who would uphold the government’s view of the Constitution. Setalvad critiqued this interpretation as partisan and misguided, since this meant that the government was bound to uphold not the philosophy underlying the Constitution but a particular government’s understanding of that philosophy.

Setalvad said: “We all know that when a judge takes office, including the chief justice, he takes an oath of office and his oath pledges him, among other things, to decide cases in accordance with the Constitution. Now if he looks at the Constitution and feels that its interpretation is, according to him, in a particular direction or it has a particular meaning, he has not to give that direction or meaning to the words of the Constitution. He has to apply to the words of the Constitution, contrary to his own understanding, the philosophy of the government… The philosophy of the government would mean the philosophy of the ruling party… Therefore, the judge or the chief justice has to keep track… not of the language and the words of the Constitution, but of the philosophy of the ruling party which may change from time to time.”

What could be the consequences of such a move? According to Setalvad: “Though the observations which were made in the Lok Sabha by Kumaramangalam refer to the office of the chief justice, they would apply all the way down to all judicial appointments. Every judge of the Supreme Court when making a decision in which government policy is in question will have to think of his prospects of being appointed the chief justice and bear in mind what the philosophy of the government of the day is… Nay, it will travel down further. Take the judges of the high court. Naturally and rightly, they all aspire, as soon as they grow senior, to be selected for the highest court in the land. But they must bear in mind that in order to be so selected they must also interpret the Constitution, not as they think it requires to be interpreted, but according to the philosophy of the government in power at the Centre.”

Succinctly arguing against the “pre-eminence of Parliament over the court”, Palkhiwala had said that “Kumaramangalam has argued that the government wants a chief justice who is able to recognise that Parliament is sovereign; that Parliament’s powers in relation to the future are sovereign powers… This ability required of the chief justice makes a mockery of the Constitution. Parliament has no unfettered sovereignty. The Constitution is supreme over Parliament; and not Parliament over the Constitution… The Supreme Court has itself held by a majority in the great constitutional case decided on April 24, 1973, that Parliament has no power to amend the Constitution in such a way as to alter the basic structure… Kumaramangalam’s statement amounts to a refusal to accept the law as laid down by the Supreme Court.”

In those dark days, the silver lining was the audible protest from the Bar. Today, when we await a verdict on which the future of India could hinge, a studied silence, by and large, prevails. Faced with a regime defined by its credo of vendetta-driven governance, the India that was built on the wisdom of men and women who had, through sweat, principles and toil, fought against a colonial oppressor, needs to give voice to a spirited resistance that reaffirms its fundamentals.

The writer is a civil rights activist and journalist.

(This article first appeared in The Indian Express on July 18, 2015)

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India has a political system where the executive makes the laws and rules for the country. The judiciary is meant to ensure the executive walks the path of the Indian Constitution, protecting the values it enshrines. Currently, there is a perception that the judiciary is under pressure from the executive, and that the executive is also losing its way. Some recent statements from the benches and politics have added to this perception. But the problem is deeper, as we shall see. 

Recently, Delhi High Court Justice Pratibha M Singh’s remarks were reported in the online legal journal Bar and Bench. At a business chambers’ event, she said that Indian women are a “blessed lot” and cited the reason as “our scriptures”. The religious texts always gave women “a very respectable position”, she said, citing the Manu-Smriti to make her point. According to her, this text says that if women are not respected and honoured, then other religious observances and rites have “no meaning”. “I think our ancestors and Vedic scriptures knew very well how to respect women,” she reportedly said. 

The Manu-Smriti does indeed say in verse 3/56 that where women are honoured, the gods are pleased and reside in that household. But does this assertion reflect the actual position of women in society? What Manu-Smriti says is repeated by the ideologues of Hindu nationalism, which is perhaps what the judge has encountered. However, the followers of Manu-Smriti never mention the other assertions in the book, which accord a very low social status to women. Chapter 5, shlokas 148, says, “Even in her own home, a female…should never carry out any task independently. As a child, she must remain under her father’s control, as a young woman, under her husband’s, and when her husband is dead, under her sons.” 

The problem is that even Prime Minister Narendra Modi recently used the lexicon of patriarchy when he spoke of giving women “protection”. He said this during his recent address from the Red Fort on India’s 75th anniversary of Independence. In fact, from Savarkar to Golwalkar, the proponents of Manu-Smriti never mention that their favourite book ordains the connection between caste and gender and embodies the hierarchical values which Brahmanism upholds. In Chapter 5, shloka 149, it says, “Though he may be bereft of virtue, given to lust, and devoid of good qualities, a good woman should always worship her husband like a god.” It also lays down a death sentence for a man of a so-called subordinate caste who has intercourse with a woman from the highest caste. Such statements as the Prime Minister’s could make us forget that during the freedom movement, women were neither fighting to protect the Manu-Smriti nor caste hierarchy nor were they seeking ‘protection’. 

There a dangerous tendency afoot to project the Manu-Smriti as a revealed text of divine origin that, therefore, cannot be challenged or changed. Such attempts create a conflict between law in the modern sense and the pre-modern religious law enshrined in religious texts. In the third volume of his Writings and Speeches, Dr BR Ambedkar also points out that the Manu-Smriti was likely penned between 170 BCE and 150 BCE, a period of attacks on Buddhism and Buddhists by the Brahmanical King Pushyamitra Shung. 

As we know, Buddhism articulated the value of equality but faced numerous assaults in India. Modern education was introduced in India during the colonial period, and social reforms started being conceptualised. That is when social reformers such as Savitribai Phule started schools for girl children and began, in a real sense, the struggle for women’s equality. Phule and Fatima Sheikh taught at the school despite multiple attacks from social conservatives who invariably followed Manu Dharma. The hostility toward Phule was so intense she was subjected to mud and cow dung attacks on her way to school. 

Ambedkar stood tall amongst those working for social equality, including the equality of women and members of all castes or social groups. His ideas were an essential feature of the national movement led by Gandhi and others, which contrasts with what the Hindu Rashtra proponents were fighting for. It must be said that nationalists who profess other religions are no different. From the Muslim Brotherhood in Egypt to the Taliban in Afghanistan, all echo the sentiment that women need protection. Protection here is nothing but a strategy to control women. 

Ambedkar, who later became chairman of the Drafting Committee of the Constitution of India, burned copies of the Manu-Smriti at a historic protest against the inequality it embodies. 

Interestingly, the communal outfits—both Muslim and Hindu—are usually exclusively male. Even today, the Rashtriya Swayamsevak Sangh or RSS has an exclusively male set-up. To widen its plan of creating a sectarian nation, it has launched the Rashtra Sevika Samiti just for women. But its name itself reveals deep-set patriarchal values—while swayamsevak means volunteer sevika means one who serves. The word swayam—which means ‘oneself’—is missing, quite in sync with Manu-Smriti’s dictate that women need to be ‘protected’ by men. 

Religious texts are notoriously opaque and given to any interpretation as a believer wishes. Anybody is free to pick and choose from religious texts at their convenience and ignore the rest. In contrast, what women demanded during the freedom movement and today is equality under the law. That is what the Constitution of India promises—removal of discrimination within the family or society and security from arbitrary action by the state or its institutions. 

It is the Constitution of India which reflects the values of the Indian freedom movement. After Phule’s time prominent figures such as Pandita Ramabai and Anandi Gopal defied taboos and fought for this idea of equality. Then, a long list of women participated in the national movement, from Sarojini Naidu to Aruna Asaf Ali and Bhikaji Cama to Usha Mehta. These and thousands of other women broke the shackles of patriarchy to become leading lights of the struggle for freedom.

India has been in the grip of caste and gender hierarchy for centuries. Overcoming it is a long struggle to which many women’s groups are dedicated. They are fighting the atrocities against women, resulting from their being accorded the second position in society. Our learned judges and politicians must understand this grave contrast in our society. On the one hand, we have Manu Dharma’s patriarchy, and on the other, Ambedkar’s Constitution upholding equality. I hope our lawyers, judges, and leaders internalise this truth as India walks the road to gender justice.

The author is a human rights activist and formerly taught at IIT Bombay. The views are personal.

Courtesy: Newsclick

The post What Should Guide Us, Indian Constitution or Manu Smriti? appeared first on SabrangIndia.

It is now out in the open. There seems to be quite a lot of dissatisfaction in the higher judiciary about the burden placed on their shoulders by the rising number of UAPA cases. The phrasing of the act is so wide and sweeping, that it gives a government powers to practically put under arrest and detain anyone it finds inconvenient or an obstacle to its political aims. And the mere production of a chargesheet before the court seems to provide prima facie basis for denial of bail. Even the necessity of filing chargesheet within ninety days is waived on the ground that the crime is grave beyond imagination, and far too complex for preliminary investigation to be completed in ninety days. Further, not to speak of a real crime against the State, even a supposed intention is enough to commit the accused in the clutches of police or security agencies.           

This allows malicious prosecution, sometimes years even to produce a chargesheet. And then at last, the court has to examine a complicated and confusing morass of details spun out to a never-ending chain of guesses and hunches resting on faint footprints on shifting sands. A clear decision on the status of the evidence becomes impossible. And no wonder, rather than declaring the state biased in a matter of serious threat to national security, the court sometimes is tempted to defer the onerous task of arriving at a definite conclusion by dismissing the argument for defence as inconclusive. And hapless detainees have to spend years waiting for the long-winded trial to come to an end. And that too not because the crime itself is planned with hideous subtlety and meticulous design, but because in fact there is too little solid material to grasp firmly.         

Of late such cases have proliferated to such an extent that many members of the higher judiciary must have been worried. On the one hand, there is the citizen’s priceless birthright of freedom, and on the other, the perceived grave threat to the state. Add to it the growing chorus of serious journalists, responsible lawyers, reputed retired bureaucrats and senior police officers, eminent jurists and academics who protest bitterly against rampant abuse of law under the garb of protecting the state.       

The next serious concern expressed by honourable judges of Delhi High Court is the gross attempt to muzzle criticism and protest against policies and decisions of the incumbent government. The attempt to gag dissent and protest has led to outright suppression of liberty of life and movement. This too appears to many citizens of weight and stature as patent violation of constitutional rights. It would thus follow, that these two denials of freedom have threatened the very basis of democracy as a viable political system in India.         

It is also a fact that several such cases have been trashed and the accused given bail by judges with probity and character even in lower courts. The Supreme Court has been approached by many for a binding verdict on the constitutionality of the law both in its original and more stringent versions, and unfortunately the matter remains pending.           

The situation has undoubtedly become too unwieldy for expeditious and convincing delivery of justice. 

The honourable judges of the Delhi High Court simply took the bull by the horns and made a courageous and strenuous attempt to bring some clarity on these issues. They have strenuously examined the charges and found them violative of the principles of justice. Teesta Setalvad has given a succinct summary of their argument for the benefit of readers like us. The honourable judges have concluded that given the gravity of the allegation and the punishment it may invite it did not attract the exactitude and rigour of proper application of mind from the police. The laxity and sweeping scope of the charges and the vagueness of the charge of terrorism and the slipperiness of the evidence produced are not only improper on behalf of a state agency but disturbing portents for our democracy.         

The honourable judges were evidently compelled by a quite reasonable apprehension of a dangerous abuse of power by state agencies, just like many other eminent citizens of the country. For after all, they too are citizens of a democracy and not an authoritarian state ruled by beastly regulations.           

It is therefore something of a puzzle that while not reversing the bail order the bench of the Supreme Court that heard the appeal of the Delhi Police against the High Court order observed that it could have much wider repercussions undermining a law passed by parliament and covering a multitude of dangerous crimes against the state. That, at least, is what I make of these observations. Many such cases are under way and the HC order according to their lordships could at one stroke 

torpedo them all.That appears to have been the concern raised by the SG.         

One would like to differ in all humility. If the danger to national security is undoubtedly a matter of grave concern, so is the danger to democracy from overweening rulers who twist and bend the laws any way they choose. Or the laws are made so wide and baggy that they swallow everything rulers dislike, leaving citizens robbed of their fundamental freedom to express dissent and protest strongly against any government policy.       

The UAPA has been used, for instance, to incarcerate certain academics, lawyers and social activists who can scarcely be conceived of as engaging in monstrous conspiracies against the state. The chargesheets that are taken as prima facie basis of such vile and vicious plots basically rely on incriminating documents ferreted out by diligent police from a single laptop, documents replete with details that look bizarre and far-fetched.     

A reputed American forensic lab armed with state-of-the-art technical expertise, Arsenal Consultancy,

has categorically declared these documents fake and insinuated through a malware for a period of twenty-two months before a raid into the house of one of these accused. During an ongoing trial the NIA, which is in charge of the case now, flatly refused to accept that evidence as the Pune based National Forensic Laboratory had vouched that the documents were genuine and no malware was detected.

And there the matter rests till now.       

While the SC is expected to look into the debate and decide with acumen and wisdom, the NIA’s stand can scarcely be considered the above question. Given that Arsenal is a reputed firm with firm credentials, there is no scope for suspecting it of mala fide intentions in coming to a conclusion in its appraisal. NIA has neither produced any proof of lack of professional integrity nor adduced any serious reason for rejecting its findings except a subjective bias. At the very least the situation calls for an impartial assessment by a third expert group of equal reputation. Yet progress of the trial is stalled and those accused undergo further ordeals. There lurks in many decent observers’ minds a gnawing suspicion that it may in fact be the state which is engaged in an ominous conspiracy against democracy.

One is once again reminded of the exceptional Hollywood film, Judgment at Nuremberg, with stellar roles by Spencer Tracy, Burt Lancaster, Maximilien Schell and Judy Garland directed by the illustrious director Stanley Kramer. It films with vivid drama the trial of the most powerful German judges, some with international standing, who did not or would not use their judgment to countermand the vicious and inhuman orders infringing elementary principles of justice given by the Nazi regime and carried out by robot-like officers in Germany. True, we have not yet come to this pass. But any hesitation or lack of alertness on the part of our judiciary at this point might eventually help unleash similar terrors and cruelties on ordinary citizens of India.

*The author is a highly respected Assamese intellectual, a literary critic and social-scientist from Assam. Views expressed are the author’s own. 

Other pieces by Dr. Hiren Gohain: 

Riddle of Assam elections 

Raging storm: People as flotsam 

War imagery turned upside down!

The post The UAPA noose appeared first on SabrangIndia.

Delhi is under lockdown in an effort to break the Covid-19 contamination chain and contain the spread of Coronavirus, and the city may get further restrictions in the days to come. The Bar Council of Delhi has also asked the Delhi High Court to consider total shutdown till March 31, and declare it as a court vacation, reported Bar and Bench, a legal news portal.  “Even though the urgent matters are listed before the courts, the situation is similar as observed during the vacations. However, since there is no official declaration of holidays, the advocates and litigants do come to courts. In this situation, it may be considered to go for a total shutdown for the period upto 31.03.2020 which should be declared as vacation,” stated the council.

A few hours later the Delhi High Court suspended its regular functioning, and those of its subordinate courts till April 4, 2020. According to the notice posted on the High Court website this move has come as a part of the steps already taken by the court to, “combat the impending threat of coronavirus (2019-nCOV) and considering the prevalent situation, particularly in view of the lockdown declared by the Government in the National Capital Territory of Delhi.”

It has also stated that it considered the requests made by Bar Associations seeking the complete closure of courts. “In case of any fresh matter of extreme urgency, the Registrar/Joint Registrar (Filing) and Registrar/Joint Registrar (Original) of this Court be contacted telephonically,” any urgent matter will now be heard over video conference it added. The numbers of the court officers who can be contacted have been made public in the notice available here:
 

All district and sessions judges have also been asked to prepare a roster of  judicial officials to deal with urgent cases of fresh arrests. Here too, a judicial officer will be nominated for each district and will be reachable over the telephone only by the lawyers and their clients.

Cases already fixed for hearing before April 4 will be, “ adjourned en-bloc to subsequent dates.”

Meanwhile, Delhi’s Tihar Jail is set to release around 3000 inmates this week. “Of these, 1500 convicts will be released on parole and other 1500 undertrial prisoners to be released on interim bail,” news agency ANI, has quoted the Tihar Jail administration.

The Delhi Government had approached the High Court to grant special parole to convicts to “decongest prisons.” According to Press Trust of India the bench took note and, “directed the Delhi government to take steps during the day to implement what it has proposed and disposed of a plea moved by two lawyers seeking decongesting of the prisons in view of the coronavirus pandemic.” 

Related:

Covid-19: What happens to prisoners, now?

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The J & K high court has been over-stretched with more than 250 writs of habeas corpus seeking quashing of preventive detention being filed since August 5. This is the date that the Modi 2.0 government took the controversial decision to abrogate Article 370 and ‘de-mote’ the state of Jammu and Kashmir into three separate Union Territories. This, when the state just a month away from being split into two Union Territories:  both wings of Jammu & Kashmir High Court, overburdened with litigation, are functioning with just nine judges against a sanctioned strength of 17 judges, reports The Indian Express.

Last week, The Hindu had reported that the habeas corpus cases in the J & K High Court shot up to 120 in August and September 2019 respectively, The Hindu also reported that in an interview to the paper, the erstwhile state’s Director General of Police, Dilbar Singh admitted to 800 being detained with as many as 150 being sent to jails out of the state.

Given the unprecedented human rights crisis in the valley, the higher judiciary in the erstwhile state is finding it nearly impossible to cope. Earlier this year, on two different occasions, chief justice of Jammu & Kashmir High Court Gita Mittal had forwarded seven names to the Supreme Court Collegium to fill the vacancies, The Indian Express reports. However, not a single appointment has been made till date.

Ten days ago, the e the Supreme Court, hearing petitions related to the Valley, has sought reports from Justice Mittal on access to justice in the High Court — at one hearing this month, Chief Justice of India Ranjan Gogoi called it “a serious matter” and said “if required, I will go personally and check” . However, it is the Collegium is yet to fill the vacancies in the High Court.

The Supreme Court had also directed the Juvenile Justice Committee of the Jammu and Kashmir High Court to look into the allegations of illegal detention of children in Jammu and Kashmir in the wake of abrogation of Article 370, and submit a report before it within a week. Clearly however, the high court is itself under pressure with too few judges!

The orders of the Supreme Court came in relation to a petition that listed serious human rights violations against children in the erstwhile state of J and K, which describe violations of very different kinds, ranging in seriousness from potential loss of life and liberty of the child, to being emotionally and intellectually drawn into the conflict. The petition filed by senior social activist, Enakshy Ganguly of Haq for Child Rights and senior activist, Shanta Sinha who is an anti-child labour activist of international reputation. She is the founder of Mamidipudi Venkatarangaiya Foundation, popularly known as MV Foundation, and is a
Professor in the Department of Political science in Hyderabad Central University.

Of the nine judges in the High Court, only two judges have been assigned to hear the writs of habeas corpus in the Srinagar wing. This when, over the past weeks, a slew of petitions in the high court has led to some relief for victims of preventive detention.

For instance, Justice Ali Mohammad Magrey of Jammu and Kashmir high court’s Srinagar bench last week directed the Agra Central Jail in charge to let the brother-in-law of a detenue meet him. Ishfaq Ahmad Ganie is a resident of Ari Gohal in Jammu and Kashmir’s Akad Mattan and has been detained in the Agra jail. His brother-in-law Sajjad Ahmad Bhat will now be able to meet him.

The detailed Express report reveals that, in March 2019, the High Court Collegium, headed by Justice Mittal, forwarded four names to the Governor and the same was marked to the Supreme Court Collegium, according to the standard procedure — of two advocates from Jammu, Rajnesh Oswal and Rahul Bharti, and two advocates from Srinagar, Moksha Kazmi and Javaid Iqbal Wani. And in July, another set of three names — Registrar General of Jammu & Kashmir High Court Sanjay Dhar and two others from the lower judiciary Vinod Chatterji Koul, and Puneet Gupta — was sent.

While the Supreme Court Collegium is yet to take a final call on the names recommended by the High Court Collegium — the last fresh appointment made to the High Court was on August 7, 2018 when District Judge Rashid Ali Dar and advocate Sindhu Sharma were elevated as permanent judges. Also, in 2018, two judges were transferred to Jammu & Kashmir High Court. But this year, not a single judge has been sent to the High Court. The last transfer was effected on November 19, 2018 when Justice Rajesh Bindal, from the parent High Court of Punjab & Haryana, was transferred.

Currently, excluding Chief Justice Mittal, there are only eight judges for the two wings in Jammu and Srinagar.

Given the shortage of judges, urgent measures are being adopted, as is evident from the official roster of the High Court. In the first half of the day, the Srinagar wing of the High Court has only one division bench comprising Chief Justice Mittal and Justice Rashid Ali Dar; and two single-judge benches — one under Justice Ali Mohammed Magrey and another under Justice Sanjeev Kumar. The division bench hears matters related to criminal appeals, tax matters and PILs. And the two single-judge benches hear criminal and civil writ petitions, including the writs of habeas corpus. In the second half, all four judges sit separately on four single-judge benches.

Similarly, in Jammu, the division bench of Justices Rajesh Bindal and Dhiraj Singh Thakur sits in the first half of the day; and two single-judge benches, under Justice Tashi Rabstan and Justice Sindhu Sharma, sit in the first half of the day. In the second half, all four judges sit separately on four single-judge benches.

Related Articles:

1.  J&K HC directs Agra Central Jail to allow J&K Detenus to meet relatives

2.  SC directs Juvenile Justice Committee of J & K HC to investigate Illegal detention of Children

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Justice DY Chandrachud was speaking at a book launch in the capital, How to Save a Constitutional Democracy’ by Professor Tom Ginsburg and Aziz Z Huq at the University of Chicago’s Delhi Centre. Known for his clarity on issues of basic democratic freedoms, Supreme Court Justice DY Chandrachud turned the spotlight on the challenges facing the Indian judicial system and noted that there was a need for more nuance on how to resolve the situation of a judge’s “wrongful behaviour”. Stating that the system as it is right now, allows for only two possibilities — to impeach or to transfer — Chandrachud called for a “more balanced and nuanced mechanism” to make judges more accountable.

The discussion may be viewed here.

Arguing for a more nuanced approach, he said that while the Indian Constitution speaks of “only” of the two possibilities, “impeachment is not necessarily an answer in every situation you can think of regarding judicial demeanor”. Democratic erosion does not happen in one sweep, but slowly, says DY Chandrachud: SC judge bats for independence of judiciary, transfer of judges.

“Similarly, transferring a judge is no solution, for a judge who has a problem in a place where she or he is posted,” he added. Chandrachud, has been a significant voice in several landmark judgments last year. In the judgment on the validity and extent of one of the Centre’s flagship programmes, the Aadhar database, in 2018, Chandrachud wrote the only dissenting note in which he held that it could be used as an “instrument to turn India into a surveillance state”. Another important stand was in ordering setting up of a Supreme Court-monitored SIT to probe the Bhima Koregaon case related to arrest of five rights activists.

‘Dissent is the safety valve in a democracy; the pressure cooker will burst if you try to muzzle it’ and ‘Liberty cannot be sacrificed at the altar of conjecture (of police or authorities)’ was one of his oft-quoted phrases. Chandrachud, the son of a former judge Justice VY Chandrachud, has gained a reputation for his “lucidly written” judgments.

In Tuesday’s event, he also made observations regarding the independence of the judiciary and what the framework should be to “insulate the judiciary from wanton attacks on its institutional integrity”. “It is important to understand that you need to trust your judges, you need to trust your courts, because if that element of trust towards the judges and the courts disappears, I think there is a serious problem we are going to have in the democratic set-up itself.”

Chandrachud also said that the debate around federalism has “progressively sharpened”. He said, “Democratic erosion does not take place in one sweep but happens slowly. Small instances, when left unguarded, pose a threat to constitutional democracy. Judges have to look at how these small aspects are implemented.”

Batting for unconventional means to deal with vacancies in the judiciary, Chandrchud asserted the benefits of appointing “ad hoc judges” in the high courts. “I see no reason to not appoint ad hoc judges in high courts with large vacancies. Even the Supreme Court had three ad hoc judges when the Kesavananda Bharati case was being heard to take care of day-to-day work of the court since 13 judges were hearing that case for months,” he said.
 

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