The text has been edited lightly for style and clarity.

Good evening, everyone. Thank you for being here, and thanks also to the Borker family for inviting me to deliver the Borker Memorial Lecture. Shri D.S. Borker was a distinguished civil servant and public educator who was always focused on the future, and especially the youth of our country. It is an honour to be here to celebrate the legacy of a visionary like Shri Borker, and also push ourselves to think more like him, for what lies ahead for India.

Fittingly, the Borker Memorial Lecture is forward-looking and asks speakers to speak on one subject only, that is, “My Vision for India: 2047 AD”. This topic asks a question which is at once deeply personal and deeply political. It asks me what my vision is, but also what my vision is for India. Addressing this in any meaningful way requires engaging with the past, present and future all at once.

Glimpse of the current crisis

2023 is a particularly interesting year for this discussion. India is over 75 years into life as a constitutional democracy, and enough markers – social, political, economic – exist to examine whether our constitutional promises have been sufficiently secured and upheld for all our people.

There are certain things about this country I am extremely proud of, such as the transformative contributions made in the fields of science and technology, whether it is space science, or IT, or even the growth in infrastructure over the past 30 years especially. Like millions of Indians, my wife and I cried with joy when Chandrayaan-3 landed on the moon. I remember our science teacher in school, a sort of dreamer, who showed us the world beyond the skies, introducing us to NASA, and the Indian space projects led by Homi Bhabha and Vikram Sarabhai. [The] moon landing [on August 23] was an emotional moment for all of us. But I am deeply troubled by many other things. If you look deeper, it seems to me that India’s society and institutions are in a state of unprecedented disruption, in fact, a crisis. Some argue that democracy here is dying a slow death.

Democratic principles have not been directly or explicitly subverted, but in the past decade, democratic institutions and accountability mechanisms have been neutralised or compromised. There has been an insidious harvesting of a culture of hate, leading to active theatres of violence. Polarisation is unrestrained, vilifying minorities, with the majority being made to think of the other, especially Muslims, as the enemy, whether in Haridwar or Haryana or elsewhere. A general sentiment of hatred of minorities can be heard, seen and felt across the country.

But how did we reach here? How did we manage to get it so wrong?

Philosophers, politicians, public intellectuals remind us that where we are today is usually because we have forgotten the past. The philosopher Santayana had said, “Those who cannot remember the past are condemned to repeat it”. Similarly, Churchill wrote that “those that failed to learn from history are doomed to repeat it”.

In the same spirit, asking what one’s vision for India is requires considering what the idea of India was in the first place.

Backdrop to the making of the constitution  

In 1947, the social, political, cultural scene was as crowded and as messy as you would imagine it to be. India’s nationalist movement was born in a melting pot of shifting cultural values and increasing pressures for social and political change, where thinkers set out to define their idea of free India, and find their meaning of nationalism.

The word “nationalism” encompasses many meanings – it can mean progressive, revolutionary, pro-people, or even regressive or jingoistic nationalism. Hitler’s nationalism, while different from Gandhi’s, was a kind of nationalism, nevertheless. But we can safely say that the Indian concept of nationalism emerged in opposition to the imperialist British state, an “anti-colonial” nationalism, where identity was not tied to religion, caste, or language, but to a unified demand for freedom.

Efforts to define free India tried to assimilate positive aspects of Western and Indian traditions. Notably, thinkers like Vivekananda, Tagore and Aurobindo, besides Gandhi, of course, in their own ways, arrived at ideas of free India, responding to a dynamic socio-cultural milieu, and a frenetic pace of political change.

Vivekananda,  for instance, said:

“Several dangers are in the way and one is that of the extreme conception that we are the people in the world. With all my love for India and with all my patriotism, and veneration for the ancients, I cannot but think that we have to learn many things from other nations. We must be always ready to sit at the feet of all, for mark you, every one can teach us great lessons.” 

Tagore’s concern was “The suddenness with which we stepped … into another [era] with its new meaning and values!”, and that, “there was still no deep awareness of human rights, human dignity, class equality”. For Aurobindo, “Liberty and equality” were “watchwords of humanity,” which could “[remould] nations and Governments.”

These thinkers exhibit consistent motifs of what free India must strive for – social and political freedoms, equality, fraternity, and dignity… They also recognised certain obstacles that lay in wait, such as orthodoxy and superstition, leading to discriminations like untouchability.

At the same time, Hindu revivalists relied on an imagined glorious Indian past as the template for its future. I must mention as an aside that my grandfather was the president of the Hindu Mahasabha in the 1940s. The earliest literature I read as a young boy in school was V.D. Savarkar, when I fell in love with his initial poetry, though his later poems became highly Sanskritised and tedious to read. Savarkar’s poetry was one of my subjects in graduation.

Savarkar envisaged a nation under Hindu rule, a Hindu Rashtra, in Akhand Bharat (a United India). It was premised on the belief that only Hindus can claim India’s territory as the land of their ancestry, pitru bhoomi, and of their religion, punya bhoomi. Muslims and Christians are foreigners, for they are not indigenous and their religion originated in a separate land. Later, M.S. Golwalkar wrote:

“The foreign races in Hindusthan … must lose their separate existence to merge in the Hindu race, or may stay in the country, only subordinated to the Hindu Nation, claiming nothing, deserving no privileges, far less any preferential treatment – not even citizens’ rights.”

Hindutva forces were generally suspicious of secular ideas. Instead, Savarkar justified Hitler’s treatment of Jews, and B.S. Moonje even met Mussolini in Italy. But such ideas were at best marginal in the independence movement.

Tryst with destiny: The peremptory values emerging from the constitution

Against this background, the Constituent Assembly started to write a Constitution to serve multitudes of people. It chose an inclusive path, not just for moral, but also practical reasons. This path ensured India could transition to a nation where diverse groups peacefully coexisted.

Note that India and Pakistan made contrarian ideological choices in 1947, and we consciously rejected a religious state. Vallabhbhai Patel, in a letter of 1947, famously wrote, that it would not be “possible to consider Hindustan as a Hindu state with Hinduism as the State religion. We must not forget that there are other minorities whose protection is our primary responsibility. The State must exist for all irrespective of caste or creed.”

Our constitution makers thus chose a republican form of democracy to bring together a multi-cultural society, where diversity could breathe and thrive. But there were two expectations, each from the state and people. The state, especially its enforcement wing, had to shed its colonial habits (of treating the citizen always as a servile subject). And minority faith communities had to become assured of their well-being in society and not be inward-looking, dependent in turn on a majority not unleashing majoritarian impulses, to slowly foster fraternal relations with each other – and together arrive at a path to social democracy.

The constitution was firmly secular and egalitarian, declaring that “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.”

The Constituent Assembly dwelt upon the idea of secularism considerably. H.V. Kamath proposed that the Preamble begin with, “In the name of God”, but many opposed this. Hridaynath Kunzru said that invoking the name of God was inconsistent with the freedom of religion and was instead reflective of a “narrow, sectarian spirit”.

The Constituent Assembly, incidentally comprising an over 80% Hindu majority, embedded secularism in the constitution in multiple ways, through fundamental rights protecting religious freedoms, through a judiciary that would arbiter religious concerns, and through an Indian model of secularism, distinct from the western church-state model, respecting religious diversity, and promoting tolerance and plurality.

The Constituent Assembly also factored in the great deprivation facing India’s poor, illiterate, and highly under-nourished, for whom the Directive Principles framework was created, with a range of economic and social rights, and mandating the State to abide with them wholly.

Closely connected to this was the stark social and economic inequality in the country. Dr B.R. Ambedkar understood this well. To him, a healthy democracy meant more than just an independent judiciary or a free and fair electoral process. With great foresight, he cautioned the Constituent Assembly that political democracy would be inadequate if inequalities remained. In  1949, he said:

“On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognising the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

He also said that in order to “maintain democracy, not merely in form, but also in fact”, we needed to “make our political democracy a social democracy as well”. He further said, “Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not pick up a natural course of things.”

Arguably, India today celebrates at best only a political democracy. We forget the other dimensions of the true democracy Ambedkar had hoped India would have, of economic and social democracy.

Ambedkar was also deeply wedded to the idea of a democratic state run on the basis of morality. Without morality, he believed, the state would be reduced to anarchy. This is how courts have also developed the concept of “constitutional morality”, that is, to respect and abide by what is contained in the constitution in spirit and not merely in letter.

Missed years: Failed constitutional promises

The Indian experiment did not get off to a great start. The constitution was only a map to secure an equal and prosperous future for all. India still needed to ‘build the Nation’. Certainly, power structures have been irreversibly pushed towards inclusiveness. But some complacency has also allowed the extremist right wing to inch into governance and everyday life.

Let’s begin with how political power has widened. Undoubtedly, the Mandal agitation, and regional parties have secured greater participation of Dalits and other oppressed castes in politics, in states and at the Centre. Constitutional amendments have helped decentralise governance structures at grassroots levels, and introduced mandatory panchayat and nagar mahapalika elections, with reservations for women and SCs/STs. Implementation may be imperfect, but neglected segments that form society’s majority – women, oppressed castes – have gained political voice and decision-making authority, fundamentally altering power structures.

India also inherited a strong culture of people’s movements from the freedom struggle. Many from the earlier generations, Midnight’s children as they are sometimes called, committed themselves to the nation-building project. Mass movements – the MKSS, Narmada Bachao Andolan, the Chipko movement, the various movements around women’s rights – effectively impacted law and policy-making towards people’s rights. Examples are the Panchayat Extension to Scheduled Areas (PESA) Act, the Right to Information, food security laws, the Right to Education, MNREGA, mid-day meal schemes, the Forest Rights Act. Again, implementation may be imperfect, but these are hopefully here to stay. Every political party has had to acknowledge that for the Indian state to remain legitimate, social welfare is a must. However, these guarantees are also being chipped away, which should be of grave concern to us.

Ultimately, India is a story of deep contradictions. A middle class has grown, but most of our population remains vulnerable, with basic public goods being mostly deficient, like education, health, livelihood, employment, or a clean environment. India’s human development indicators are languishing barely higher than that of sub-Saharan Africa. While rhetoric and propaganda over the decades may have swayed us, in truth, as economist Ashoka Mody has pointed out, every Indian government, from Nehru to Modi, has failed this country in delivering basic public goods. Unless this is reversed, he says, “India faces a future of mass unemployment with consequent discontent and even, perhaps, social violence.”

This has led to a precipitating fall in public trust for formal institutions – courts, parliament, police, and civilian bureaucracy. It started with the Emergency years, which were unquestionably the Dark Ages for India. This was when the Indian playbook for authoritarianism was first written, a terrifying trailer for times to come. Amity in society deteriorated, and fissures along religious and caste lines deepened.

Now, I see the rise of illiberal and communal forces in India, that is made possible, in part, by disillusionment with successive governments. This is compounded by a legal architecture that is permissive of abuse, and prejudices inherent in society.

The rise of the right-wing

This worrying resurgence of communalism, a deeply divisive form of religious nationalism, has powerful political backing, seeking to realise Sarvakar’s ideal “Hindu Rashtra, Hindu Jati (race) and Hindu Sanskriti.”

As a thought exercise, though, let us test Savarkar’s theory. He believed that those whose sacred sites lie outside India’s geographical limits cannot be Indian or would be lesser citizens. Thus, Muslims and Christians would be foreigners, not indigenous to India, because their religion originated elsewhere. By corollary, then, as Rajmohan Gandhi in a previous Borker lecture explained, the millions of Hindus who live outside India cannot be Americans, or South Africans, or Fijians. All Indians abroad would be second-class citizens there. By extension, all Christians and Muslims living outside their Holy Lands would be suspect too. That the Savarkar vision is outrageously outdated is putting it mildly. People are not defined by geography or religion, just as democratic nations are not chambers of rigid uniformity or isolation.

Nevertheless, this clamorous view is being propounded in India today still, to a point where minorities are living lives in fear, and with some truth, that their citizenship has been reduced to second-class existence. Incidents like those that took place in Nuh and even in Delhi, perpetuate this feeling.

Extrajudicial tools like encounter killings, panchayat bans on traders from minority communities, and ‘bulldozer politics’ have exacerbated this situation. This last situation is something that particularly troubles me. The bulldozer today has become a symbol of power, that is wielded without legal sanction or authority. Innocent lives and livelihoods are lost, with no respite in sight. It involves the physical demolition of homes on the mere suspicion that “maybe someone living there has participated in riots or indulged in some form of criminal violence or activity”. Beyond the act of demolition, there are devastating consequences for entire families and communities. Who will help them rebuild their destroyed lives – not just their homes? Does the state realise the grave implications of its machismo display?

Those responsible for maintaining the rule of law, like courts, remain silent spectators. If I am not mistaken, there has not been a single case where innocent victims have found justice. When, occasionally, a bench, like in the Punjab and Haryana high court, suo moto questions the strong arm of the state, the case itself is taken away.

The same story has played out in the case of hate speeches as well. Politicians and politically-backed media outlets routinely foster communal hate. State and local governments are either complicit or inert. The Supreme Court tried to curb hate speech, but to no avail, and the cycle of violence and hatred continues.

As another thought exercise, consider this: Hindus can never be denied their place in India. There is no evidence of the Hindu faith facing a crisis of any kind in India. Fantastic claims of disproportionate Muslim population growth and love jihad are mere propaganda. Hindu nationalism, Hindu assertion, or whatever term you prefer, will always have a place here; the right to free speech ensures that this voice exists. But when extremist right-wing groups take over and silence minorities, a state of hegemony comes about. Telling people what they can and cannot eat, wear, watch, or speak about, or whom they can or can’t marry, amounts to imposing a homogenous culture on non-conformists. In a democracy, this is a sure recipe for conflict. Ambedkar forewarned us about this.

I feel that the idea of Hindutva, as we have received it today, challenges the Hindu faith itself, which many consider a liberal, tolerant, and generous religion. Why is Hindu society largely silent about what is being perpetrated in the name of their religion against minorities is a question many of us might well ask today. Recall Vivekananda’s memorable words from his 1893 Chicago address, where he said, “We believe not only in universal toleration, but we accept all religions as true,” and that he was “proud to belong to a nation which had sheltered the persecuted and the refugees of all religions and all nations of the world”. Should we not want to feel that pride always?

The Hindutva movement is marked by perpetuating victimhood, and ousting scientific temper and rationality. Ambedkar’s warning on this too was prescient. His vision of democracy emphasized that just as rationality can counter propaganda and ideological manipulation, a scientific spirit, focusing on coherent arguments and clear evidence, can protect people against the arbitrary exercise of power.

But today, physical attacks on rationalists and polemical attacks on scientific spirit are being unleashed, with Narendra Dabholkar, M.M. Kalburgi, Gauri Lankesh, being some who paid with their lives. Orthodoxy and superstition have made a strong comeback, surprisingly even in the Indian Science Congress. The 2023 Congress included claims that rangolis could ward off evils. Previous editions have had a university vice-chancellor tout Ravana’s fleet of aircraft, and a palaeontologist claim that dinosaurs were created by Brahma, besides a discussion on India making test-tube babies millennia ago. Contrast this with Nehru’s vision where he encouraged Indian science beyond boundaries, to realise that the sky is not the limit.

Relatedly, education is being reshaped along ideological lines, with changes galore in school and university syllabi. At Delhi University, newspaper reports suggest that, in the recently revised political science syllabus, teaching time given to thinkers like Gandhi, Kabir, Iqbal, Nehru, Ram Mohan Roy, Vivekanand, Tagore is sharply reduced, while time given to Savarkar and Hindutva ideology has increased. BJP governments tried to rewrite school history textbooks in the early 2000s. This year, they successfully removed much of Mughal history, and material on dissent and communal violence, in the NCERT syllabi, leading expert advisors, including Suhas Palshikar and Yogendra Yadav, to seek the removal of their names from the new textbooks.

Advent of elected autocracy

I believe that the next stage of the Hindutva movement, the birthing of the Hindu Rashtra, is firmly in the works. Madhu Dandavate, in the 2000 Borker lecture, prophetically said:

“… the hardliners of ‘Hindutva’ who have a long term objective to totally subvert secular character of Constitution will … work hard even upto … 2047 to realize their objective. They will intensify frenzy among the people against secularism by whipping up hatred against religious minorities and by strengthening ‘Hindutva’ euphoria among the people and urging them to give 2/3 majority to the ‘Hindutva’ forces so that secularism can be buried.”

Today, the ruling party has acquired democratic power legitimately; after all, majority has been achieved in elections. But, having been elected, the government is acting along starkly authoritarian lines, extinguishing the checks and balances that characterise democracy. Watchdog institutions are mostly co-opted, while outliers are so fear-struck or paralysed that they fail to expose, much less check, the abuse of power.

The executive dominance that was set in during the Emergency is thriving. Except this time, the issue is of “destination” – where are we going as a country? Executive power is nurturing a political culture and a majoritarian society incompatible with the Constitutional idea of India.

The question is – just because it is done through legitimate political means, is India still definitionally a democracy? I have consistently maintained that we are, in fact, becoming quite the opposite, that is, an ‘elected autocracy’, and the Indian constitution, to quote the words of legal academic Tarunabh Khaitan, is being killed by a thousand cuts. Elected autocrats weaponise institutions for political ammunition. Big media and the private sector are silenced. Rules are redrafted to suit their own interests. Critical voices still rise up, but dissenters and questioners end up at the receiving end of all kinds of trouble. In this way, “the very institutions of democracy [are used]… to kill it”.

Our failed early years, we have seen, contributed to creating conditions favourable for the rise of an ‘elected autocracy’. To name a few, the almost militant social movement of the Hindutva right wing, a hollowed-out and discredited opposition, weakened media and courts, have created, in some ways, a perfect storm for the Indian state.

Today, institutions are weakened in explicit and implicit ways. We see a lack of transparency in campaign finance, through the opaque system of electoral bonds (which the Supreme Court is yet to adjudicate upon). We also see active efforts to dilute the autonomy of the Election Commission, an institution that has been blatantly partisan in recent years. The Supreme Court’s efforts to reform the chief election commissioner’s selection process were undone by proposing an amendment to the selection committee’s composition, removing the chief justice of India, nominally, an independent, apolitical voice.

Institutions are also killed insidiously. Authorities intended to monitor accountability, such as the Lokpal, the Central Information Commission, the National Human Rights Commission, today appear to exist only on paper. The Lokpal was created with the best of intentions, and designed to serve as an ombudsman to tackle corruption amongst public functionaries. But of the thousands of complaints it has received since it was set up, the Lokpal has either not registered the complaints at all, or dismissed them outright. What purpose does it really serve, then, one might ask. The collapse of the Right to Information regime has been perhaps even most spectacular. Meant as a sunshine law to dispel the darkness surrounding governance and policymaking, this path-breaking law has been virtually killed by not making appointments, or appointing loyalists, and not giving out information, while also enacting a tight-fisted data protection law.

Federal relations are also being destroyed today, through partisanal governors issuing diktats to non-BJP governed states. Separately, investigating authorities like the CBI, the ED and the NIA, otherwise expected to conduct non-partisan inquiries, are today being deployed as arms of government, against political oppositions, independent media, dissenters… These are not new tactics but have been misused in unprecedented ways by the present dispensation.

There is also no media, print or electronic, worthy of being called truly independent, barring some exceptions. Indeed, the media has contributed to the growth of the sentiment of hatred in the country. All of these, collectively, are the markers of a failing democracy.

Closely connected to this is the clear pattern of the government suppressing dissent and criminalising inconvenient speech and expression. Examples are countless, such as the arrest of Disha Ravi for circulating a protest toolkit; arrests for questioning cow urine as a COVID-19 cure; criminal cases against journalists like Patricia Mukhim for criticising the government in a social media post; the raid on activist Harsh Mander’s premises; the arrest of standup comedian Munawar Farooqi… Internet and communication blackouts are routine, such as during the farmer protests, or in Jammu & Kashmir, or in Manipur.

Some might argue that there are positive developments, with new laws being made, and old ones being repealed. Do not get me wrong: India desperately needs new laws. We remain reliant on antiquated laws dating back to over 150 years. But instead of actually thinking through new legal architecture, we are being given old wine in new bottles.

For example, the recently introduced criminal codes – these were sprung upon an unsuspecting population, seemingly not considering the decades-long criminal law reform debate here. Bombastic statements that this is the end of the colonial legal legacy and that Macaulay’s name now stands erased, are in fact misleading. Most of the old laws in fact continue, even retaining the same language.

To complicate things, the new laws add extra layers of ambiguity and do not increase individual liberties, but reduce them, such as the provision on sedition. It strikes particularly that the home ministry, which is pushing for the new laws, believes that criminal reform simply means longer incarcerations and stricter punishments, and nothing else.

Judiciary: The last bastion

When it comes to courts, so much has been said that I am not even sure where to begin or end, or what to include or leave out.

In recent years, the Supreme Court has delivered some exceptional judgments, the one on the right to privacy being a pathbreaking work of jurisprudence. More immediately, there have been positive orders such as those pertaining to Manipur and Haryana, the order on hate speech, the bail order in the Bhima Koregaon violence case. But the judiciary has not managed to effectively curb executive excesses, and there is a visible, general reluctance to hear big-ticket matters like the Citizenship Amendment Act or electoral bonds.

This is compounded by a perceptible targeting of those fighting for justice, without following due process. Teesta Setalvad’s case is a classic example of this. Courts seem to be not only dismissing cases, but practically supporting the government in going after activists.

Human rights defenders are regularly persecuted by employing anti-terror laws, and specifically the Unlawful Activities (Prevention) Act [UAPA]. In particular, the Supreme Court’s interpretation of the grant of bail in the UAPA cases has upended the principle of presumption of innocence under the law in the case of NIA vs Zahoor Ahmad Shah Watali. Now, courts are to presume the prosecution case to be true and then determine whether a prima facie case is made out. As a result, for anyone unfortunate to have been charged under UAPA, a period of indefinite incarceration lies ahead. The UAPA has been particularly used and abused in many cases, including the Bhima Koregaon and Delhi riots cases. Some who were accused and arrested, such as Sudha Bharadwaj, were eventually granted bail, whereas others like Stan Swamy died in custody, without any incriminating evidence having been clearly identified.

It does not help that the high courts, barring some honourable exceptions, are also unable to discharge the kind of truly independent role they had in the past. I feel personally troubled by this because my own professional career has been tied to high courts. The high courts were once the most vibrant institutions in the country. Indeed, high courts have an enviable legacy of being among the only democratic institutions that stood with and for the citizens in the country’s darkest days during the Emergency, when the Supreme Court failed India’s people. But, like so much of history, that legacy seems to have been forgotten. On occasion, such as during the COVID-19 pandemic, and the plight of migrant workers, high courts showed their mettle through some bold orders and directions, but it seems that this was only a momentary ray of hope. Today, it is virtually impossible to get relief in civil liberties cases in some high courts, and for even the most blatantly ridiculous instances of a misuse or arbitrary application of a draconian law, individuals have to approach the Supreme Court for any redress. It is also troubling to see judges praising the benefits of cow urine and cow dung, invoking the Manusmriti, and speaking the majoritarian language.

Despite all this, though, the executive realises that the judiciary is the last bastion it has to overcome. In that respect, without a formal change in the constitution, it might be almost impossible to establish a Hindu Rashtra. This is also perhaps why a conversation has suddenly resumed around the Keshvananda Bharati decision. The statesmanship exhibited by the 13-judge constitution bench in Kesavananda Bharati, where the basic structure doctrine was laid down, and judicial custody of the constitution reclaimed, is but one shining example of what the court is capable of. The judgment spoke of six crucial elements that made up the Basic Structure and that cannot be altered, that is, democracy, secularism, rule of law, equality, federalism, and judicial independence. As the Chief Justice of India has rightly said, this decision is a “north star” for India. Granville Austin  said that the court had established itself as “the logical, primary custodian” of the constitution, and “its interpreter and guardian.” There was a promise, decades ago, by the Supreme Court itself, that it would be the sentinel on the qui vive, the watchful guardian protecting citizens’ fundamental rights. Whatever happened to that promise, I often wonder, with great disappointment.

Conclusion

You might well ask, why I have painted what appears to be a rather grim picture of what India has become in 2023, and why I think this is important for what my vision of India is in 2047. Every day, with increasing frequency we are bombarded with claims about the achievements of the government, and how people’s lives have improved and how lives will continue to get better with time. But if we think about this rationally, with proper data, information, and evidence, we will be able to look past the pomp and rhetoric for what it really is.

Consider, for instance, the economic miracle that India is being touted as by the present government. We are told to be proud that India is now shining and that our economy will soon overtake the world’s biggest and brightest. But a closer examination reveals that this economy appears to be shining only for a very few.

In the world’s major indices that measure different aspects of governance, India regularly shows up nearer to the bottom of these lists than the top. On the Global Hunger Index, which measures hunger and food security, India is presently ranked at 107 out of 117. On the Environmental Performance index, which talks about how governments handle air and water pollution amongst other things, India has the unenvious position of being at the bottom of 180 countries measured. In the human development index, the gender gap index, the multi-dimensional poverty index, India has routinely performed poorly, with only marginal or occasional improvements. Not only has India done poorly compared with itself, but also compared with its immediate and larger neighbourhoods.

What does this all tell us? I feel that this march towards creating a certain kind of India, has resulted in what some have called an amnesia about the teeming millions.

The sad truth is that for many of us, the working classes, the lower middle and lower classes, the agricultural workers, they just do not exist. They are unseen, unheard or ignored, living substandard lives, left to languish in the dark alleyways, in scorched farms, in flooded hillsides, in parched villages… But if you introspect about this a little deeply, you will realise they are irreplaceable cogs in the wheel of our democracy, just like we are.

Nobody can contest that income inequality has become more stark. There appears to be no meaningful investment in the health and education of those who really need it. Corruption and crony capitalism are still very much prevalent, except with new faces and new names, perhaps more demonic than we knew them to be before.

But the situation that we are in today is not irreversible. To reverse this, we must jolt ourselves awake with a few realisations.

We need to recognise that communalism is ‘not only the badge of a backward nation’, as Nehru had famously once said, but also that it has a limited shelf life. Recall what I had said at the start of my lecture today, that history has a lot to teach us. History has taught us, time and again, that hatred and divisiveness, whether in politics or society, cannot survive for long. Religion and religious groups might be having their day in the sun, when it comes to influencing politics, and economics. This is happening the world over, but this is also only a temporary phenomenon. Peacefulness and a peaceful society are the natural equilibrium for human society. Periods of war and instability have mostly been sporadic, we have, as humankind, reverted to peace as the default. In India too, we must never let go of that certitude, that we will return to peace, sooner than later. For every statue of Gandhi or Tagore being defaced or pulled down or their thoughts and ideas being otherwise devalued by the extremist right wing, there is a movement that reminds us and reinforces that peace is the only path to real progress.

We must also acknowledge and learn to value the power of knowledge. This means encouraging free and critical thought and speech. What this means for institutional architecture is obvious – schools and universities, places where people go to ideate and create, and avenues through which such ideas and creations are consumed, such as the media – must be truly independent, free from fear or control.

So, at the end of all this, you might ask, what is my vision for India of 2047? I would return, unhesitatingly, to history. The universal values that have survived since time immemorial, and that will survive for time to come, the values of truth, non-violence, compassion and kindness – these are what must define my India of 2047. These values must guide government and society, both. These must direct them to behave in ways that uphold human goodness, dignity, diversity, and inclusivity.

Over millennia, even before India existed as a nation, the people of this subcontinent have shown themselves to be very resilient. There is so much strength in India and Indians, I am confident that we can reverse the situation we have found ourselves in today.

The post India today has all the markers of a failing democracy. But the situation is not irreversible appeared first on SabrangIndia.

In an interview where he is sharply critical of the functioning of the Supreme Court since 2014, when Narendra Modi became Prime Minister, and particularly of former Chief Justice Ranjan Gogoi, the former Chief Justice of the Madras and Delhi High Courts has said that since 2014 the Supreme Court “practically succumbed to the executive’s control”. Justice Ajit Prakash Shah said: “All floodgates opened after CJI Thakur’s retirement”. Justice Shah said of the Supreme Court: “Over the last 8 years the judiciary is completely demoralized and under siege”.

In the same interview, Justice Shah, who is also a former Chairman of the Law Commission, sharply criticized the functioning of the Collegium System, adding: “Judges appointing judges is not a good idea … the National Judicial Commission is the best way”.

In a 50-minute interview to Karan Thapar for The Wire, which is divided into two parts, Justice Shah first discusses the functioning of Chief Justices of the Supreme Court as well as some judges of the Court during the 8 years since Mr. Modi became Prime Minister in 2014. In part two, Justice Shah discusses issues such as whether judges should be appointed on the basis of seniority or performance and ability, whether chief justices of the Supreme Court should have a fixed tenure, whether the powers of the chief justice as Master of the Roster (to decide which cases are heard or not heard, the size of the bench as well as its composition) should be diluted or amended, whether the Collegium System is the best way of choosing judges and whether the Supreme Court erred by acting in haste both to hear and then to pronounce its decision over the Bombay High Court’s ruling discharging Prof. Saibaba.

Explaining why he believes the Supreme Court has succumbed to the executive’s control during the 8 yeas Narendra Modi has been Prime Minister, Justice Shah cited four instances that lead to this conclusion. First, four chief justices in succession have avoided taking up critical matters like the Citizenship Amendment Act, abrogation of Article 370 and Electoral Bonds and, even, habeas corpus cases because these could be embarrassing to the government. Second, in critical cases to do with the treatment of migrant workers during the pandemic the Supreme Court accepted the government’s word as final. Third, in freedom of speech cases only three out of ten cases were taken up and relief granted by the Supreme Court. Fourth, whilst Mr. Ambedkar considered Article 32 the soul of the Constitution, Chief Justice Bobde publicly said he wanted to discourage people filing petitions under Article 32.

In the interview, Justice Ajit Prakash Shah spoke at length about Chief Justice Ranjan Gogoi citing five different criticisms of his functioning as Chief Justice. First, “the absolute disregard of conflict of interest” when he heard his own case in the sexual harassment matter. “All principles of natural justice were broken” in the process. This was “very disturbing”.

Second, “Justice Gogoi was obsessed with secrecy and asked for information to be submitted to the Court in sealed covers”. This happened in the National Register of Citizens case, the Rafale case and the Electoral Bonds case. This adversely affected the quality of justice meted out by Justice Gogoi.

Third, in handling habeas corpus petitions, which concern the right to life, Justice Gogoi drove “a coach-and-four through the centuries-old established law on habeas corpus”.

Fourth, under Justice Gogoi “judicial evasion” grew because he deliberately chose not to hear important cases thus leading many to believe that he was side-stepping them because these cases could embarrass the government.

Finally, Justice Shah was very critical of Justice Gogoi’s acceptance of appointment as a Rajya Sabha MP by the government. Asked who he blamed more – the government for offering this job, in specific contradiction of the Law Commission’s position and Arun Jaitley’s well-known stand, or the Chief Justice for accepting – Justice Shah said he blamed the Chief Justice.

Although Justice Shah refused to answer a question asking him what opinion he has finally formed of Justice Gogoi as Chief Justice, saying he did not want to be personal but he has placed the facts in front of the people, he did say that he had analyzed the Chief Justices of the Modi-era (about which he also has written a lengthy essay in The Hindu) because: “The CJI occupies a unique position … his role is critical when it comes to protecting the rights of citizens”.

Of all the subjects covered in part two of the interview I shall only give you details about what Justice Shah has said about the Collegium System. He said: “Judges appointing judges is not a good idea … the National Judicial Commission is the best way”.

However, Justice Shah said it would need a constitutional amendment to move away from the Collegium System to the National Judicial Commission. Meanwhile, two aspects of the Collegium System need to be immediately improved. He called them flaws. The first is its opacity. The second is the lack of accountability.

I will leave you to see the interview to find out what Justice Shah said about all the other subjects covered in part two.

He also has a lot more to say about the functioning of the Supreme Court, its chief justices and judges during Modi-era which I have not covered here. Again, please look at the interview for this. In particular he is very critical of Justice Arun Mishra and Justice M. R. Shah for their sycophantic showering of praise on the Prime Minister.

Here is the link:

The post Indian Supreme Court & Eight Years of Modi appeared first on SabrangIndia.

On August 25, the National Solidarity Forum organised a webinar titled In Defence of Human Rights and Democratic Freedoms to remember the victims of targeted violence against Christians, Adivasis and Dalits in Kandhamal in Odisha in 2007-2008. Justice AP Shah delivered a poignant speech on the occasion, expressing solidarity with all victims of hate and violence in India.

Related:

Kandhamal Human Rights award 2021 to PUCL
Remembering Kandhamal
Kandhamal: Brotherhood of victims
Kandhamal 2020: We live with the national shame of impunity in perpetuity

The post Those who do not remember the past, are bound to repeat it: Justice AP Shah appeared first on SabrangIndia.

“We might not be in a state of war, but we are in a state of emergency, unprecedented for generations” – Justice AP Shah

Justice AP Shah delivered a lecture titled The Supreme Court in Decline: Forgotten Freedoms and Eroded Rights in the memory of Justice Hosbet Suresh on September 18, at 6 P.M in a Zoom session. Justice Shah is the former Chief Justice of the Delhi and Madras High Courts and has been a former Chairperson of Law Commission of India. The event was chaired by Senior Advocate, Supreme Court of India, Mr. Dushyant Dave. This event was organized for conferring posthumously the Dr. Asghar Ali Engineer Lifetime Achievement Award upon Justice Suresh.

This event was organized by Citizens for Justice and Peace (CJP) in association with Bohra Youth Association Sansthan, Central Board of Dawoodi Bohra Community, Centre for Study of Society and Secularism, Institute for Islamic Studies and Majlis Law Centre.

In his lecture, Justice Shah honoured the legacy of Justice Suresh while addressing the many pertinent issues that the judiciary is plagued with currently. 

Firstly, speaking about the award being given to Justice Suresh, he said both Dr. Asghar Ali Engineer and Justice Suresh were activists in their own right. While Dr. Engineer fought for change in the Dawoodi Bohra community, Justice Suresh made some “path-breaking contributions to the human rights space” and that both their voices were the conscience of the nation. “Wherever there were instances or occasions of human rights violations, Justice Suresh’s wisdom, presence and support always made an appearance,” he said.

Supreme Court in all its glory

Justice Shah began his lecture by speaking about the apex court’s past. He regarded the Kesavananda Bharti case as a shining example of what the Court is capable of and said that the 13-judge constitution bench exhibited statesmanship through this judgment whereby the basic structure doctrine was laid down and judicial custody of the Constitution was reclaimed.

He said that initially the court played a passive role but over time realised its role in the governance of the nation.

The “invention” of  the public interest litigation marked the  beginning of what has been termed the “socialist judicial” era, where the Court’s activist role came into prominence. In the late 1990s, it expanded its scope into relatively less-explored territories, such as environmental protection, using its powers to tackle important questions in that arena,” he said. According to Justice Shah, the court entered the domain of the executive in the PIL era.

He stated that after the ADM Jabalpur case, the court was viewed as having gone astray and a few years after the case were doggedly spent in restoring some respectability to the institution and in the 1980s and 1990s its reputation was briefly reversed. “We seem to have regressed once again, and desperately need a wake up call in order to avoid another Emergency-like disaster,” he said, throwing caution to the wind.

An unaccountable executive

He then went on to comment on the loss of accountability of the executive. “In India today, every institution, mechanism or tool that is designed to hold the executive accountable, is being systematically destroyed. This destruction began in 2014 when the BJP government came into power… What we are witnessing today is a force in action strategically intending to render the Indian democratic state practically comatose, with all the power entrusted with the executive,” he stated.

He commented on the cancellation of the question hour in the on-going monsoon session of the Parliament and said that the Parliament has been debilitated but other entities such as Lokpal, National Human Rights Commission, Election Commission of India and Information Commission have failed to keep a check on the executive. Those who do raise questions, such as the civil society, unbiased journalism and students are being stifled and strangled in many ways.

 The decline of the judiciary

“With Parliament already so weakened, the Supreme Court would have been the next best space to discuss the Kashmir trifurcation, the constitutional validity of the Citizenship Amendment Act, suppression and criminalisation of protests against this law, misuse of draconian laws like sedition and the Unlawful Activities Prevention Act, electoral bonds, etc.,” Justice Shah said while pointing towards the role that the judiciary could have played.

“The Supreme Court’s descent was not fortuitous or coincidental, but was part of a larger, deliberately-crafted strategy on the part of the executive to seize control of the arms of the state, in ways  that would benefit  its own political agenda,” he stated while pointing out how the court’s decline coincided with the advent of the BJP at the Centre.

He alleged that the appointments of new judges and transfers of existing judges across high courts are many-a-times orchestrated by the Law Ministry. He noted that some judgements did demonstrate self-expression of the court such as right to privacy judgement in Puttaswamy case of the striking down of section 66A of the Information Technology Act in the Shreya Singhal case, as well as decriminalisation of homosexualiity, or  recognising transgender rights because the executive was not at all concerned with these issues and hence the court was at liberty. “But wherever the executive is an actively interested party, and  wants to undermine the rights of the people – usually in order to further its own realpolitik agenda – you will find that the Court is being pushed to the wall,” he pointed out.

He also made a comment on the contempt case against Prashant Bhushan wherein he was fined Re. 1. “The Court let off Mr Bhushan with a fine of one rupee for the contempt case against him over two tweets, but not without chastising his conduct. In the entire proceedings, one thing was clear: the Court came across as an intolerant institution,” Justice Shah commented.

He said that the court had failed to perform as a counter-majoritarian court as it failed to protect the interests of minorities.

“A democracy derives its legitimacy from representing the will of the majority. But this legitimacy comes at a cost, which is invariably borne by minority groups, and especially those that are unpopular or victims of deep prejudice and who cannot influence the legislature in any way. This power to protect minorities from the tyranny of the majority is the basis of judicial review powers that allow Courts to strike down laws for violating the Constitution.”

Justice Shah criticised the court for aligning with the majoritarian view and said that this was demonstrated in the Sabarimala review and the Ayodhya judgement. He said that while the 2018 Sabarimala judgement allowed entry of women in the temple, the review has left the rule of law in limbo as the government is able to ignore the judgment with impunity, even if there is no stay on the 2018 judgement.

About the Ayodhya judgment he said that it defied the rule of equity that one must approach the court with clean hands when it decided the case “anonymously and unanimously” in favour of the party that was the wrongdoer. He said that even though the criminal trial continues, “in the larger scheme of things, I am doubtful if any meaningful result will emerge”.

Failure to commit to the Constitution

Justice Shah also commented on how the Court failed to address the migrant crisis while it had “time for a billion-dollar Indian cricket administration, or the grievances of a high-profile journalist, but studiously ignored the real plight of millions of migrants, who do not have either the money or the profile to compete for precious judicial time with other litigants.”

Erosion of rights

Justice Shah also spoke about the repression of right to protest and freedom of speech. He said that the government was silencing the protestors while the court has avoided taking up the cases challenging the Citizenship Amendment Act and was being a silent spectator. He also commented on how in the Delhi riots, individuals are randomly being charged with criminal offences of rioting, unlawful assembly, criminal conspiracy, sedition in conjunction with the (newly interpreted) Unlawful Activities Prevention Act (UAPA).

“Contrast this treatment of civilians with that of leading politicians of the ruling BJP who have publicly delivered inciteful speeches. Shockingly, no punitive action was taken against them. Instead, the one judge who showed some inclination to take action was conveniently transferred.”

He pointed towards the investigations in the Delhi riots being unfair as they are mostly based on disclosures and how the Delhi Police has been accused of being partisan and politically motivated. He blamed the state of affairs on a weak judiciary.

“Had the Supreme Court not remained a mute spectator, and had it intervened more proactively, all this would arguably not have happened. Instead, the Supreme Court conveniently declined to intervene, showing no urgency in wanting to deal with these problems. For weeks, the matters involving many of these issues (for example, the Delhi riots) kept getting adjourned. Even where matters were heard and decided, when they were appealed, there was judicial silence.”

He also cited a case which has made it virtually impossible for people accused under UAPA to get bail. in NIA vs. Zahoor Watali, Justice Khanwilkar and Justice Rastogi decided that courts must presume every allegation made in the First Information Report to be correct and put the burden on the accused to disprove the allegations thus excluding the question of admissibility of evidence at the stage of bail. “With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely. It is nothing short of a nightmare come true for arrestees,” he said.

Bhima Koregaon case

Justice Shah said, “abuse of the UAPA and constant rejection of bail applications of accused as a means of silencing opposing voices can be seen most in the Bhima Koregaon cases, where mere thought has been elevated to a crime.” He pointed to the pattern followed in the arrests, “social activists, academicians, public intellectuals, who have worked in certain parts of the country are first accused of Maoist conspiracies, then with charges of misguiding Dalits, and then under the UAPA”.

Abdication of Justice and the Kashmir issue

Justice Shah said that the court failed to apply the principles laid out in the Anuradha Bhasin case while deciding legality of the communication shutdown in Kashmir. The court, in May 2020, instead asked the executive to form a special committee and review the situation to see whether 4G internet can be restored in the UT.

“This is clearly a case of misguided, and surely, constitutionally unacceptable, delegation: the executive has been asked to conduct a review of its own actions, when in fact the judiciary should have been conducting a judicial review of executive action.”

Threat to independence of Judiciary

Justice Shah, quite blatantly pointed out how competent judges were related to adjudicating private disputes and questioned the independence of the judiciary while attributing it to the executive.

“The combination of opaque systems like the “master of the roster”, and a certain kind of Chief Justice of India, and a handful of “reliable” judges, is sufficient to destroy all that is considered precious by an independent judiciary”

The death of democracy

Justice Shah referred to a book titled, How Democracies Die whereby authors Steven Levitsky and Daniel Ziblatt, write of how “most democratic breakdowns have been caused not by generals and soldiers but by elected governments”.

He said that the judiciary was the institution that had the capacity to turn the tide but “it seems to have lost its way”.

“There was a period in history, during the Emergency, as well, when the Supreme Court failed the nation, but it realised its follies and returned to its natural path in course of time. Now, too, we have many judges and exemplary  lawyers in practice who are sincere and committed to constitutionalism and to  the rule of law. I expect they will rise to the occasion. The occasion is now.”

He concluded with a quote by Jawaharlal Nehru who had said in the Constituent Assembly that we need judges who can “stand up against the executive government and whoever might come in their way” and Justice Shah left us with some words of hope, “I am hopeful that we will once again be able to see judges like these thrive in India.”

 The complete lecture may be read here:

The post The era of the SC’s glorious jurisprudence has vanished: Justice AP Shah appeared first on SabrangIndia.

On August 16, several civil society stalwarts came together to hold an online Janta Parliament to address the functioning of the government in wake of the Covid-19 pandemic and how it was being used as an excuse to further nefarious political agendas. The online session was toplined by eminent jurist AP Shah and other speakers included Aruna Roy, Jignesh Mevani, Soni Sori and Syeda Hameed.

Justice AP Shah, former Chief Justice of the Delhi High Court, addressed the inaugural session of the Janta Parliament and highlighted how Indian lawmakers had failed to keep up with their Parliamentary obligations in wake of the pandemic and how they could have easily followed in the footsteps of their contemporaries across the world, instead of virtually shirking responsibility and failing in their Constitutional obligations.

The Budget Session of the Indian Parliament began on January 31, 2020, just a day after the World Health Organisation announced the Covid-19 pandemic to be a public health emergency of international concern. Though the Parliamentary session was originally scheduled to end on April 2, Parliament was adjourned sine die on March 23, 2020.

“Contrast this with how other jurisdictions have been operating in this time of crisis: the United Kingdom, Canada, European Parliament, have all made procedural changes that enable holding hybrid or complete virtual sessions of parliament, with some members being physically present in  the house, and others participating through video conference,” said Justice AP Shah. “These jurisdictions also have provision for remote voting to ensure that legislative business continues uninterrupted to the extent possible. Many other countries are working similarly, such as France, Italy, Argentina, Brazil, Chile, Australia and New Zealand. Spain – one of the countries worst affected – also ensured that legislative work went on.” He went on to quote Mohamed Nasheed, the Speaker of Maldives Parliament, who said, “Parliaments worldwide cannot just stop representing their people during this crisis. The institutions of democracy must continue to function.”

Justice Shah said, “These sentiments, sadly, do not seem to echo with counterparts in India, where Parliament has remained a ghost town since March 2020.” However here, Justice Shah reminds us that, “This decision to shut Parliament down is also going against tradition in India, where Parliament remained in session even in times of crises like wars and terror attacks: in 1962 and 1971, the Indian Parliament remained in session, even as its armed forces were fighting neighbours. Despite the horrific terror attack on its building in 2001, the Indian Parliament met the very next day in New Delhi.”

Justice Shah then weighed in on the role of various arms of government calling the Legislature “the protector of people’s rights.” He said, “In Parliamentary systems, the executive is accountable to the legislature, where the actions of the executive are subject to scrutiny on a daily as well as periodic basis. A host of tools are employed for this, such as questions, resolutions, no-confidence motions, and debates. This is in addition to the oversight of the laws and executive actions by various parliamentary committees. There’s a secondary round of accountability and assessment of all these actions through elections held periodically, every five years.”

Justice Shah then went on to explain the role of the Rajya Sabh saying, “With Parliament, the upper house, or the Rajya Sabha, has a clearly defined role too: to impose a check on hasty legislation that the Lok Sabha might otherwise be prone to,  and to represent those interests that might not be considered by the Lok Sabha.”    

But coming back to the subject of the non-functioning of the Parliament in wake of the Covid-19 pandemic he asked, “But what happens when Parliament itself stops working? Besides failing to provide leadership to the people in a time of crisis, like the pandemic, it compounds the problem of representation and accountability by granting the executive a free rein to do as it pleases. Executive accountability, in these conditions, is a thing of memory, for there is no one to raise any questions about its actions.”

He further elaborated on the subject of executive accountability saying, “Like its counterparts in the liberal democratic world, India, too, aligns to a textbook framework for executive accountability: through the legislature, there is accountability to the people; through the judiciary, there is accountability to the Constitution and adherence to the rule of law, as  well as to other institutions like  the auditor-general, the election commission, a human rights watchdog, anti- corruption bodies, and so on; and there is additional accountability through entities like the press, academia, and civil society. These include non- governmental organizations, trade unions, religious organizations, and charities.”

He warned, “Unfortunately, what we see happening in India today is an insidious takedown of each of these institutions and mechanisms empowered to hold the executive accountable.” Justice Shah goes on to give examples of this, “The non-appointment or non-recognition of a leader of the opposition; and overriding the Rajya Sabha in important decisions by converting bills into ‘money bills’, which mean that the bills in question can be passed by the Lok Sabha’s approval alone. Also, the act of frequently putting bills to vote without any discussion. Through these, the executive has been allowed to get away with a lot of actions that would ordinarily have not gone unquestioned in another set of circumstances.”

Lamenting the judiciary’s inability to step up to defend India’s democracy, Justice Shah said, “We have always prided ourselves in, and boasted of, India’s independent judiciary. Despite serious aberrations in the past, such as during Emergency, the judiciary has always somehow managed to restore the people’s faith in the institution as one that preserves sanity in the chaotic life of the Indian democracy. But, today, the judiciary appears once again to be failing us.”

He explained, “There are many important issues that need to be deliberated upon today. With Parliament already so weakened, the Supreme Court would have been the next best space to discuss the Kashmir trifurcation, the constitutional validity of the Citizenship Amendment Act, suppression and criminalisation of protests against this law, misuse of draconian laws like sedition and the Unlawful Activities Prevention Act, electoral bonds, etc. Sadly, most of these are ignored or brushed aside or mysteriously kept pending for an indefinite period of time. In some cases, such as that of internet access in Kashmir, the Supreme Court has all but abdicated its role as arbiter, and handed over the matter to an executive-run committee to determine. How such a committee can take an unbiased view on a review of the actions of the executive itself makes no sense at all. Indeed, these are all matters that are not being discussed in any forum of constitutional relevance.”

Justice Shah also lamented the failure of other relatively autonomous bodies in protecting the rights of Indian citizens saying, “The other authorities and institutions that could have played an important role in these times are also silent.  We have heard nothing of the Lokpal since forever. The National Human Rights Commission is dormant and appears to exist only on paper. Investigation agencies seem to be misused at the slightest opportunity. The Reserve Bank of India and the Election Commission of India appear to have been suspiciously compromised. The Information Commission is almost non-functional. The list is long and needless to say, very disturbing.”

Justice Shah also lamented the systematic destruction and silencing of academia, the press, and civil society saying, “Universities are under attack daily, whether it is students being accused of rioting, or teachers being accused of criminal conspiracy. The idea of an unbiased mainstream fourth estate in India died its death a long time ago. Now, with policies like the Media policy in Kashmir, the concept of an independent free media is also dying. And civil society is being slowly but surely strangled, through various ways.”

He squarely blamed an authoritarian regime for this. Justice Shah said, “The source of these attacks is unquestionably the current executive, and the underlying strategy in the attack against these entities is to suffer no difference of opinion. Those of even limited influence found voicing opinions that are contradictory to the ruling party’s view are subject to the worst form of scrutiny and even punishment. The principle appears to be that all dissent must be silenced.”

He warned that “the central executive has become all-powerful, and all accountability mechanisms are diluted.” According to Justice Shah, there was only one way to deal with the nation’s current predicament, “We must keep speaking out, and keep speaking up. Our aim must be to revive the liberal democratic state of India that we are so proud of. Failing this, we run the risk of allowing ourselves to be overrun by an overzealous and unchecked executive, which has unimaginable consequences. 74 years after independence, it is the least we can do for ourselves and our future generations.”

Related:

Delhi Police complicit in February 2020 violence: Polis Project

The post Parliament has remained a ghost town since March 2020: Justice AP Shah appeared first on SabrangIndia.

Justice AP Shah said head of judiciary or Chief Justice of Bombay High Court should look into the matter

New Delhi:  How a judge deciding whether BJP chief Amit Shah should be tried for murder died in December 2014 must be investigated, says one of the most respected judicial voices in the country, Justice AP Shah.

The post Investigate Death Of Judge Handling Amit Shah Case, Says Justice AP Shah: NDTV report appeared first on SabrangIndia.

 
Text of the Entire Lecture

Introduction

“A parochial, selfish, narrow minded nationalism has caused so much misfortune and misery to the world. A mad and exaggerated form of this cult of nationalism is today running rampant….”

This statement made by M.N. Roy, as far back as 1942, may resonate with many even today, particularly in these times we live in.

Good evening, Justice Chalmeswar, Mr. Pancholi and distinguished members of audience. It is a privilege and an honour to be here to deliver the M.N. Roy Memorial lecture today.

M.N. Roy was a leading intellectual and thinker, and an activist philosopher, who was deeply involved in the Humanist Movement. He was critical of the fundamentals of Indian nationalism and the ideology of nationalism in general, particularly in light of the rise of Fascism and Nazism and the outbreak of the Second World War.

Roy left India during the earlier part of the First World War as a full-blooded nationalist, but changed his views after much reflection and new political experiences. He founded the Communist Party of Mexico in 1919, the first Communist Party outside Russia. During the second World Congress of Communist International, Roy helped formulate the famous Thesis on the National and Colonial Question by Lenin, although he disagreed with Lenin on the class composition of the leadership of the nationalist movement in colonies. Subsequently, on account of disagreements with Stalin, Roy returned to India in December 1930….

His return, however, was short lived. In July 1931, he was arrested on charges of sedition for the Bolshevik Conspiracy Case and tried in Kanpur Jail, without any open trial. He was sentenced to jail for 12 years, and was eventually released within six years at the age of 36. Thereafter, Roy joined the Congress, although he ultimately fell out with them on account of their reluctance to support the British to oppose fascism (which he considered to be a greater evil) in the Second World War.

After India became independent, Roy became a chief proponent of the idea of “radical humanism”, which he described as “a new humanism”. He continued writing on nationalism and on its economic and political aspects. In 1944, he drafted a “Constitution of Free India”, where he included a chapter on “Declaration of Fundamental Rights” which clearly stated that a “right to revolt against tyranny and oppression is sacred”.

The Situation Today
 
Roy’s ideas thus covered a broad range of topics, including speech and dissent. In fact, that is exactly why I have chosen to speak on Nationalism, Free Speech and Sedition for this memorial lecture.

Today, we are living in a world where we are forced to stand for the national anthem at a movie theatre, we are told what we can and cannot eat, what we can and cannot see, and what we can and cannot speak about. Dissent, especially in the university space, is being curbed, and sloganeering and flag raising have become tests for nationalism. We have a 21-year old University student who is subject to severe online hate, abuse, and threats, only because she dared express her views.

In any society, at any given point of time, there will always be people holding divergent views. Such views are integral and inevitable in a healthy, functioning democracy. Nowhere has this been better expressed than by the judgment of the Bombay High Court in F.A. Picture International v CBFC, where the Court said:

“History tells us that dissent in all walks of life contributes to the evolution of society. Those who question unquestioned assumptions contribute to the alteration of social norms. Democracy is founded upon respect for their courage. Any attempt by the State to clamp down on the free expression of opinion must hence be frowned upon”

Unfortunately, however, our institutions of learning are under attack today and there is a concerted attempt to destroy any independent thought. Today, sadly, in this country I love, if anyone holds a view that is different from the government’s “acceptable” view, they are immediately dubbed as “anti-national” or “desh-drohi”. This marker of “anti-national” is used to intimidate and browbeat voices of dissent and criticism, and more worryingly, can be used to slap criminal charges of sedition against them.

All these factors have led me to choose the present topic to generate further discussion and debate. I think it is all the more important to discuss and talk about nationalism.

 
What is Nationalism?
 
At the very outset, I would like to caution against, what the celebrated Nigerian author Chimamanda Adichie terms, the “danger of a single story” – the danger of understanding an idea only from a single perspective and ignoring the diversity of views present. Mridula Mukherjee points out the nuances in the word “nationalism” and how it encompasses the ideas of progressive nationalism, a revolutionary pro-people nationalism, and a regressive and jingoistic nationalism. Hitler’s nationalism, after all, was very different from Gandhi and Nehru’s nationalism. The European conception of nationalism, developed from the days of the Treaty of Westphalia and in the age of imperialist expansion, focused on the enemy within, whether the Jew or the Protestant. In contrast, the Indian conception of nationalism, developed as an opposition to an external imperialist British state, was more inclusive in uniting the people against them. This was then, an “anti-colonial nationalism, where the primary identity of an Indian was not their religion, caste, or language, but their unity as equals in their demand for freedom. It is thus important to remember that there is no single overarching “right” conception of nationalism.

How then did M.N. Roy understand nationalism? In Roy’s view, nationalism was representative of the desires and ambitions of a group of people within a certain geographical area, as opposed to people uniting on the basis of class. Nationalism thus emphasised the placing of one’s country’s interest over the interest of the rest of the world. There was a time in the 19th century, when countries were still isolated from each other, when nationalism was a historic necessity, under whose banner people came together and humanity progressed. However, he believed, it had now become a selfish, narrow-minded “antiquated cult”, and the world should progress towards internationalism and international cooperation. The ambitions of different nations began to conflict with each other, contributing to an exaggerated and irrational form of nationalism, which manifest itself in the rise of Fascism and Nazism, eventually leading to the Second World War. Nationalism, in Roy’s eyes, had thus become a synonym for revivalism, whose advocates were consigned to glorify the past and advocate for a return to the bliss of the middle ages and a simpler life.

Rabindranath Tagore, the composer of the Indian national anthem, had even more radical views on nationalism. He believed that a fervent love for the nation represented a conviction of national superiority and a glorification of cultural heritage, which in turn was used to justify narrow-minded national interest. Writing in 1917, Tagore said, “when this organisation of politics and commerce, whose other name is the Nation, becomes all powerful at the cost of the harmony of higher social life, then it is an evil day for humanity.” He thus cautioned against such an exclusionary and self-aggrandizing form of nationalism that was based on a hate culture against an imagined or actual Other, who was viewed as the enemy.

On the other hand, the revivalists focus on the glory of ancient India, going back to the Aryan race as the building block of the Indian civilisation. This takes the form of cultural nationalism, where anyone celebrating “Western” festivals such as Valentine’s Day or even couples merely holding hands are to be ostracised and attacked. As religious nationalism, it endorses the two-nation theory, which envisages a nation under Hindu rule, a Hindu rashtra in Akhand Bharat (a United India). This is premised on the belief that only a Hindu can claim the territory of British India as a land of their ancestry, i.e. pitribhumi, and the land of their religion, i.e. the punyabhumi. As Vinayak Damodhar Sarvakar propounded, “Hindu Rashtra (state), Hindu Jati (race) and Hindu Sanskriti (culture).” Muslims and Christians are viewed as foreigners, who are not indigenous to the territory of India, and whose religion originated in a separate holy land.
At this point, I would like to share my personal background. My maternal grandfather was the President of the Hindu Mahasabha in the 1940s, and the first literature that I ever encountered in my school days was Sarvarkar’s writings. Writing in 1938, when Hitler was on the rise, Sarvarkar justified Hitler’s policies towards the Jews and driving them away from the motherland. He said, “A nation is formed by a majority living therein. What did the Jews do in Germany? They being in minority were driven out from Germany.” I am not sure whether his views changed after World War 2, and when the extent of the holocaust came to be known. Sarvarkar further believed that minority groups must lose their separate existence and separate identity if they want to live in India.

Roy, unsurprisingly, was critical of such views. While discussing the declaration made by the President of the Hindu Maha Sabha that “the majority is the nation”, Roy said that it sounds quite in “tune with formal democracy”, but in reality “particularly in the prevailing atmosphere of Indian politics, it means that in a nationally free India the Muslims, constituting nearly 1/3rd of the population, will have no freedom”. He was thus against removing an imperialist regime and replacing it with a nationalist regime, which would continue to deny real freedom to most of the Indian people.

It is important to remember that both Tagore and Roy wrote in the context of the First and Second World War respectively. They had thus, witnessed first hand, how the pursuit of the glory of the nation had resulted in the great wars, and betrayed the ideas of liberty, equality, and fraternity of the French Revolution. Today, in independent India unfortunately, having such views is almost blasphemous and perhaps seditious.

India is a diverse country and people hold different views about nationalism, the idea of India, and our place in the world. We must respect these differences, not silence those who hold a different view on nationalism and patriotism for the country. Elevating only a single view – one that idolises the nation and staunchly rejects any internal or external criticism – will only polarize citizens against each other.

At the end of the day, it is important to question, what is the defining characteristic of a nation – is it the territorial boundary or the collection of people that is a country’s defining feature. Our Constitution starts with a solemn declaration of “We, the people of India…” In this context, is being anti-national equivalent to being anti-Government or is the hallmark of an anti-national that they are against the interest of the people, especially the minorities and the depressed classes? Can an entire University and its student body be branded “anti-national”?

Our current state of affairs is especially sad when we consider that the freedom struggle gave us a country and a Constitution that was committed to the ideals of democracy, free speech, civil liberties, and secularism. Unlike Pakistan, religion is not the founding basis of our nation. Our right to free speech and expression is not a gift or a privilege that the Government bestows on us; it is our right, guaranteed by the Constitution of India, and won after decades of struggle and sacrifice by the people of India.

 
1. Free Speech…
 
Free speech and the Constitution
 
Writing in Young India in 1922, Gandhi said, “We must first make good the right of free speech and free association before we make any further progress towards our goal. We must defend these elementary rights with our lives.”
 
Gandhi’s views were based on his belief that liberty of speech is unassailed even when the speech hurts and that “freedom of association is truly respected when assemblies of people can discuss even revolutionary projects.”
 
Gandhi was not alone in his ideas. Our early nationalist leaders too, from Raja Ram Mohan Roy to Bal Gangadhar Tilak, made the grant of civil liberties to ordinary Indians an integral part of the national movement.
 
These very ideas were incorporated into the Constitution by the Constitution drafters. They understood that while the freedom of worship is part of democracy and is a fundamental right, the edifice of modern democracy has to be the freedom of thought and expression. Our Constitution is drafted as a positive, forward-looking, inclusive document that binds the aspirations of all Indians. The Preamble expresses the resolve of the people to constitute India into a sovereign, socialist, secular, democratic republic securing justice, liberty, equality, and fraternity of its citizens. This achievement is all the more noteworthy if we consider, as Fali Nariman recently pointed out, that in a Constituent Assembly of 299, 255 members (85%) were Hindus. Despite being in a massive majority, the Constitution drafters took pains to protect the interests of the minority, the oppressed, and the dissenters.

Having been given a magnificent and inclusive Constitution, it then fell on the Supreme Court to protect the rights guaranteed therein, especially the right to free speech and expression.

 
Free speech and the Court
 
The Supreme Court has repeatedly emphasised the value of free speech, noting that the freedom of speech and expression lies at the foundation of all democratic organisations, inasmuch as free political discussion facilitates public education and enables the proper functioning of the processes of government. The Court has emphasised the function of free speech as promoting autonomy and self-fulfilment, maintaining truth, and performing the function of a watchdog. It has also given express recognition to the value of free speech in a “market place of ideas”, by quoting the famous dissent of 1919 of Justice Holmes in Abrams vs. United States:

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” (Emphasis supplied)

The value of free speech is thus, both intrinsic and instrumental, and has consistently been linked to democratic ideals. For example, the censorship of the play “Mee Nathuram Godse Boltoy”, which was extremely critical of Mahatma Gandhi was not permitted by the Bombay High Court. In an insightful judgment in Anand Chintamani Dighe vs State Of Maharashtra, the Court highlighted the importance of respect for, and tolerance of, a “diversity of viewpoints”, as being essential to sustain a democratic society and Government. The Court further went on to state, “Popular perceptions, however strong cannot override values which the constitution embodies as guarantees of freedom in what was always intended to be a free society.” In the same vein, the Supreme Court in Director General, Doordarshan vs Anand Patwardhan held in 2006 that the State cannot prevent open discussion, regardless of how hateful such discussion was to the State’s policies.

The importance of dissent is best understood by the Supreme Court’s view in S. Rangarajan v P. Jagjeevan Ram that “In a democracy it is not necessary that everyone should sing the same song..”.
 
It has thus long been understood that free speech has to be countered by more speech; that the response to criticism is not to shut it down, but to engage with, and respond to, the speaker. Moral vigilantism, as Upendra Baxi rightly recognises, has no place in our Constitutional polity and democracy.

Free speech, though, is under attack. The joy over the striking down of Section 66A of the IT Act in Shreya Singal was soon replaced by despair over the Supreme Court’s decision to uphold the constitutionality of criminal defamation in Subramaniam Swamy v UOI and its “order” directing all cinema halls across India to play the national anthem before the start of a film, and requiring the audience to stand up as a “show of respect”. I shall discuss the National Anthem order in further detail later on in my speech.

Just last month, in relation to the comments made by Azam Khan regarding the Bulandsher gang rape, the Supreme Court raised the question of whether the right to free speech under Article 19(1)(a) is to be controlled singularly by the language under Article 19(1)(a) is to be controlled singularly by the language under Article 19(2) or is it also impacted by the expansive right to life and personal liberty under Article 21 of the Constitution. The answer to this question will have a profound impact in restricting the scope of Article 19(1)(a) and undermine our Constitutionally guaranteed right.

Even the Bombay High Court, whose decisions I have referred to above, has on occasion failed to protect the right to free speech. Recently, it constituted a three member committee (comprising of two lawyers) to give a report on the scenes in the Jolly LLB-2 it found “objectionable”, because it was prima facie of the view that certain scenes – those involving a cowering judge and some dialogue between the lawyers – were in contempt of the judiciary and the legal profession. Mind you, this was a movie where the CBFC, i.e. the Censor Board, has given the requisite certification for its release. It was also a case where the High Court entertained the writ petition (later converted to a PIL) based only on two trailers and some photographs! As Justice Lodha had said, while dismissing a similar petition when Jolly LLB-1 released, if the Petitioners don’t want to watch the movie, no one is forcing them. The Bombay High Court’s order, the report of the three member “committee”, and the proximity of the release date, essentially forced the producers and director of the movie to “compromise” and undertake to make the requisite modifications and deletions to the objectionable scenes.

I only hope that these judgments are aberrations in an otherwise glorious history of the Indian Judiciary in protecting and promoting the Constitutionally guaranteed right to free speech and expression.
 
However, free speech has to be protected institutionally – not only by the Courts, but also by statutory institutions and the media. Unfortunately, we read about reports where the CBFC, our “censor board” has refused to certify a movie such as Lipstick under my Burkha, because it was “lady oriented”, contained “sexual scenes, abusive words, audio pornography”; deleted the line “mann ki baat” from the upcoming movie Sameer because that is the name of the Prime Minister’s radio show; and demanded that the Hanuman Chalisa be muted from a scene in Phillauri, because it failed to ward off the ghost. How can you forget that in Udta Punjab, a Adult-only certified movie, the Censor Board demanded 94 cuts (based on 13 suggestions), including deleting the name “Punjab”, deleting certain abuses and deleting the words “Election”, “MP”, and party worker”. If this is not an assault on the freedom of speech and expression, then I don’t know what is.

The freedom of the press is part of the freedom of speech guaranteed under Article 19(1)(a). This is because a free press is essential to disseminate different views, and promote democratic ideals. More importantly, today, when mass-communication and digital media have become prevalent, the media assumes an even greater importance in playing the role of the opposition and checking facts. In fact, no other institution wields as much power and influence on public opinion as the media. However, in recent times, a section of the media, through its biased and one-sided reporting, has unfortunately aided in the restriction on free speech. A news channel airs false and doctored footage, while others openly flame the fans of this patriotism and anti-national debate. It is ironic that the media, which played a critical role in asserting its right to free speech during and after the emergency, and in the process helped develop our Article 19(1) jurisprudence, is now the institution that is compromising and challenging the same freedom of speech of the dissenters today.

We also have social media, where online trolls and threats of rape and murder are regularly made against people supposedly making anti-national statements. I am left to ask myself, which part of Indian culture permits or promotes the making of such statements threatening a girl with rape or murder. Who are these people on Twitter and other social media, who take comfort in their anonymity to make such aggressive threats against individuals?

Having discussed the meaning of nationalism and the importance of free speech in some detail, it is appropriate for me to now turn to examine issues that are raised by nationalistic fervour, whether sedition, the national anthem, the attack on universities, and cow slaughter. A common theme linking these topics is the idea of “cultural nationalism”, where cultural conformism is being foisted upon the entire nation, without consideration of people’s personal choices, values and regional differences.

Nationalism and Sedition
 
Sedition is a word, almost everyone in India has heard of today, because of the events at JNU last year. Historically, our conversation around sedition centred around British injustice in convicting and sentencing Tilak and Gandhi to prison for their publication of allegedly seditious material. Tilak, before his arrest in 1908, reportedly told a police officer, “The government has converted the entire nation into a prison and we are all prisoners. Going to prison only means that from a big cell, one is confined to a smaller one.” Gandhi, in 1922, pleaded guilty to the charge of sedition, stating that he was proud to oppose a Satanic government.

These stories are shared with bristling outrage about the British misuse of this law and pride with which our freedom fighters opposed them. More than 90 years later, however, we are still grappling with the fact that the crime of sedition was invoked against a group of 20-something University students for doing what students in a campus should feel entitled to do – raise slogans, debate, disagree, and challenge each other on complex, political issues that face the nation today.

Sedition laws were enacted around the 17th Century in England in a bid to protect the Crown and the State from any potential uprising. The premise was that people could only have a good opinion of the government, and a bad opinion was detrimental to the functioning of the government and the monarchy. It was subsequently introduced in the Indian Penal Code in 1870.

The first major case was when Bal Gangadhar Tilak was brought to trial for sedition in 1897 for his lectures and songs at the Shivaji Coronation Ceremony. Given that these speeches and songs made no mention of overthrowing or disobeying the government, the Court widened the interpretation of sedition by equating “disaffection” to “disloyalty,” and including within it hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government. This interpretation became a part of the legal text, when Section 124A was amended to add the words “hatred” and “contempt” alongside “disaffection”, which was defined to include disloyalty and feelings of enmity. Thereafter, in 1908, Tilak was again charged with sedition for the publication of a critical article in his magazine Kesari. He was held guilty and sentenced to six years imprisonment by the Bombay High Court, which ruled that no one was permitted to “attribute dishonest or immoral motives to the Government.”

The next landmark sedition case pre-independence was Gandhi’s trial for the offence of sedition for his articles in the Young India magazine. The trial itself was remarkable for his decision to plead guilty to the charge of sedition and Justice Broomfield’s reluctance to sentence him, because he did not believe that Gandhi deserved to be charged with sedition in the first place.

Interestingly, during the Constitution Assembly debates, there were two attempts made to include sedition as a ground for restricting free speech. Eventually, however, due to trenchant opposition by members of the Constituent Assembly and their fear that sedition would be used to crush political dissent, it was dropped from Article 19(2) and the Constitution. These actions of the framers were expressly noted by the Supreme Court in 1950 itself, in its decisions in Brij Bhushan and Romesh Thappar.

The decisions of the Supreme Court prompted the First Amendment to the Indian Constitution, wherein Article 19(2) was amended and “undermining the security of the State” was replaced with “in the interest of public order”. However, while speaking in Parliament, Nehru clarified:

“Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” [Emphasis supplied]

Finally, in 1962, a Constitution Bench of the Supreme Court had the chance to authoritatively decide on the constitutionality of Section 124A of the IPC in Kedarnath Singh v State of Bihar in light of the “public order” restriction in Article 19(2). It had to grapple with conflicting decisions of the Punjab and Patna High Courts on the constitutionality of sedition. The Court upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.” It distinguished these acts from “very strong speech” or the use of “vigorous words” which were strongly critical of the Government.

The final case that I would like to discuss is the 1995 decision of the Supreme Court in Balwant Singh v State of Punjab, where it acquitted the persons who had shouted slogans such as “Khalistan zindabaad, Raj Karega Khalsa” outside a movie hall a few hours after Indira Gandhi’s assassination on charges of sedition. Instead of simply looking at the “tendency” of the words to cause public disorder, the Court held that “raising of some lonesome slogans, a couple of times… which neither evoked any response nor reaction from anyone in the public” did not amount to sedition, for which a more overt act was required. The Court took cognizance of the fact that the accused had not intended to “incite people to create disorder” and that no “law and order problem” actually occurred.

It is through this lens that one should view the JNU incident. The law, as we saw above, is quite clear on the distinction between strong criticism of the government and the incitement of violence, with only the latter being related to sedition. Thus, regardless of whether the JNU students’ slogans were anti-national, hateful, or an expression of contempt and disdain against the government, as long as they did not incite violence, it does not get covered under sedition. As Upendra Baxi reminds us, we should remember the distinction between “constitutional patriotism” (and fidelity to the Constitutional purpose) and “statist patriotism” (what Gandhi called “manufacturing affection for the state”). Keeping this in mind, I would like to express my anguish on the language of the Delhi High Court’s bail order and the unnecessary invocation of patriotism and nationalism.

Gandhi said, “Affection cannot be manufactured or regulated by the law. One should be free to give full expression to their disaffection unless it incites violence.” This, as we have seen above, is in fact the standard of Kedar Nath. Unfortunately, the broad scope of Section 124-A allows it to be used by the State to go after those who challenge its power, whether it is the JNU students, activists such as Hardik Patel and Binyak Sen, authors such as Arundhati Roy, cartoonists such as Aseem Trivedi, or the villagers of Idinthakarai in Tamil Nadu protesting against the Kudankulam Nuclear Power Plant. These examples are demonstrative of the misuse of the provision. The law is clear that mere sloganeering is not enough, and has to be accompanied by a call for violence. However, at the stage of registering the FIR and initiating criminal proceedings, the question of the interpretation of the section in line with the Supreme Court’s jurisprudence, does not arise. Thus, sedition charges are easily slapped, but seldom stick, but cause immense harassment in the process. Even if one is eventually acquitted of sedition, the process of having to undergo the trial itself is the punishment – and more importantly, the deterrent against any voice of descent or criticism.

The enforcement or the threat of invocation of sedition constitutes an insidious form of unauthorised self-censorship by producing a chilling effect on the exercise of one’s fundamental right to free speech and expression. That is why the law needs to be repealed. However, it is unlikely that any government will give up this power, and it is therefore left to the courts to re-examine the constitutionality of sedition. It is not enough to expect an acquittal by the courts after 4-5 years; we need to stop the misuse of the law to silence dissent by removing the source of the power itself.

Interestingly, England, from whom we have inherited the offence of sedition, recently repealed the offences of sedition and seditious libel, along with defamatory libel, and obscene libel. In doing so, the Justice Minister, Ms. Claire Ward observed in 2009,
“Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today…. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom…Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”

Nationalism and the University Space

It seems that February is the season for targeting dissent. If it was JNU and azaadi in 2016, this February saw the Ramjas-DU protests. University spaces are traditionally meant to be spaces for dissent, where students engage and challenge each other and the dominant narrative, in an attempt to develop their own principles and beliefs. In fact, the best Universities in the world are those that champion free thinking and disagreement amongst their students, faculty, and administration. However, this space is under challenge in India.

Just think about the events that have transpired over the last couple of years that have sought to undermine academic institutions and academic freedoms – from the backlash against University of Hyderabad’s Rohit Vemula’s mother, declaring that she was not a “dalit”; to the charges of sedition levelled against JNU students; to protests at Ramjas/DU about the organisation of a seminar; and the outcry against an undergraduate student’s tweet.

As part of the #FightbackDU campaign that was launched in response to the Ramjas protests, a 21 year old LSR student, Gurmehar Kaur, tweeted a photo “I am not afraid of ABVP”. A video, where she held a placard saying “Pakistan did not kill my father, war did” went viral and became the subject of intense national discussion and debate, with cricketers, actors, and politicians all joining in to criticise the girl. In fact, she was subject to such hostility, threats, and violence, especially online that she had to get security and leave Delhi. Have we really reached such a stage of insecurity that a 21 year old’s views have to be met with such backlash? That the Union Home Minister for the State has to tweet, “Who is polluting this young girl’s mind?” The guarantee of freedom of speech rings hollow, if the State cannot guarantee freedom after speech.

The inaction of State institutions like the police in light of the violence and bullying by certain groups leads to a fear psychosis amongst students. Unless some remedial action is taken, we will produce an entire generation of students who will never have been encouraged to question the dominant ideas and encouraged to think differently. This will influence not just the nature of democratic citizenship, but will have a direct impact on the innovation and creative thinking that are necessary for economic progress of a nation.

Nationalism and patriotism
 
Before concluding, I would like to talk about two more issues connected to free speech and nationalism. The first relates to the Supreme Court’s national anthem order requiring all movie-goers to “stand up in respect” for the national anthem before before the start of a movie in order to “instill a feeling within one a sense of committed patriotism and nationalism”. The order of the Court, which seems a little short on reasoning to help understand how such an interim order was passed befuddles, and seems contrary to the spirit of the Constitution and past precedent, Bijoe Emanuel, which made it clear that we cannot be forced to sing the anthem. It is important to remember that the right to free speech and expression also includes the right not to speak or express ourselves. However, under the guise of “law”, the Court has now stepped in and restricted our fundamental rights.

As Pratap Bhanu Mehta points out, the order fails to understand a distinction fundamental to liberal democracy ­– everything that is desirable or makes for a better citizen does not, and should not, be made compulsory. In fact, making something compulsory undermines the very meaning of that action and the respect that is normally accorded to it. It is a form of, what I would call, “conscripted nationalism”. Just as joining the Army is a noble career path, our lawmakers have rightly decided that India will not follow conscription, presumably because they believe in the liberty of the individual and the right to choice. Unfortunately, the Judiciary thought otherwise.

I know of many people who considered themselves patriotic and would always stand when the national anthem was played. But the Supreme Court’s order has fundamentally changed their relationship with the anthem and has resulted in undermining its import. The order may have ensured that cinema audiences throughout are now standing before the national anthem plays, but what the Court fails to have realised is that such an action is a performance, motivated by fear of being beaten up, rather than genuine respect and love for the anthem. In the end, it has actually undermined patriotism amongst fellow Indians.

Similarly, preventing people from eating the food they want and effectively forcing a life choice on them undermines any feelings of nationalism and unity, and is another insidious form of cultural nationalism. Recently, Mohan Bhagwat called for a national law against cow slaughter. But we must be wary of forcing a single ideology or way of living on the entire country, especially a country as diverse as India, where States such as Kerala, or the various states in the North East consider beef a staple part of their diet. One reads multiple reports about slaughterhouse crackdowns in UP, crackdowns that are primarily targeted at Muslim butchers, leaving lakhs of people with fear, but without stable employment. We also recently had the horrific incident in Una where seven Dalits were beaten by cow-vigilantes for alleged cow slaughter. And how can we forget the lynching of Akhlaq, who was suspected for allegedly storing and consuming beef, but where the first thing that was sent for forensic examination was not his body, but the food that is in the fridge. Is this what the value of human life comes to?

Nationalism, when it devolves into such a form of cultural nationalism, is disturbing. I am personally very proud of being an Indian and of the Indian culture. My wife and I practice Yoga. But I am not comfortable with the drive to make Yoga compulsory, to be foisted upon everyone, as if that were a badge of nationalism and Hindu pride.

Enforced nationalism cannot promote true culture. When a culture is arbitrarily prescribed and foisted, freedom of the creative spirit of man disappears or is suppressed. Only free souls can create abiding cultural values; they may physically belong to one particular class or geographically to a particular country; spiritually, they transcend all social and territorial limitations.

Conclusion
It has long been known that suppressing and censoring people’s speech will not remove the underlying simmering sentiment. In fact, it will only serve to alienate that section of the population further. If we have to give true meaning to the Prime Minister’s promise of “sabka saath, sabka vikaas”, then we must celebrate not only those who profess affection for the State, but also those, who believe that change is necessary or injustice is being committed. We cannot have an Orwellian situation, where the government speaks in one language, but then fails to walk the talk. After all, as Desmond Tutu said, “if you are neutral in situations of injustice, you have chosen the side of the oppressor.”

The strength of a nation is not gauged by the uniformity of opinion of its citizens or a public profession of patriotism. The true strength of a nation is revealed when it does not feel threatened by its citizens expressing revolutionary views; when there is a free and open press that can criticise the government; and when citizens do not resort to violence against their fellow citizens, merely for expressing a contrary view. That is when we will have achieved liberty of speech. And that is when we will be truly free.

I would like to end this speech with a short poem “Speak” from one of my favourite poets, Faiz Ahmed Faiz:
 
Speak, for your lips are free;
Speak, your tongue is still yours
Your upright body is yours
Speak, your life is still yours
 
Speak, this little time is plenty
Before the death of body and tongue
Speak, for truth is still alive
Speak, say whatever is to be said
 

The post There is a Concerted Attempt Today To Destroy Independent Thought: A.P. Shah (Justice, retired) appeared first on SabrangIndia.

 
जस्टिस शाह ने कहा है कि जो दस्तावेज मौजूद हैं उनसे देश के कुछ राज्यों के मुख्यमंत्रियों समेत राजनेताओं और नौकरशाहों को कारोबारी घरानों ( सहारा, बिड़ला) की ओर से व्यवस्थित तरीके से रिश्वत दिए जाने के सबूत मिले हैं। सीडब्ल्यूएफ की ओर से लिखी चिट्ठी में दावा किया  गया है उसके पास वह अप्रैजल रिपोर्ट हैं, जिसमें रिश्वत देने के दस्तावेजी सबूत हैं।
 
जस्टिस शाह की इस चिट्ठी को यहां पढ़ा जा सकता है may be read here.
 
पत्र में कहा गया है- सीडब्ल्यूएफ को पता चला है कि सीबीआई (बिड़ला के मामले में) और आयकर विभाग (सहारा के मामले में) को जांच के दौरान दस्तावेज, नोट्स, लैपटॉप और बड़ी तादाद में नकदी मिली है।

पांच जनवरी को सबरंग इंडिया ने (Sabrangindia had reported ) ने यह रिपोर्ट छापी थी कि राजनेताओं को जिस तरह से व्यवस्थित तरीके से घूस दी गई उस मामले में आयकर विभाग की आकलन रिपोर्ट को किस कदर पूरी तरह नजरअंदाज कर दिया  गया। उसी दिन सुप्रीम कोर्ट की सुनवाई के बाद अखबारों ने खबर छापी थी कि किस कदर इनकम टैक्स सेटलमेंट कमीशन ने तुरत-फुरत  (आईटीएससी) सहारा को टैक्स विवाद में माफी दे दी थी। जबकि इससे पहले इसी टैक्स सेटलमेंट कमशन ने माफी के लिए सहारा के आवेदन को खारिज कर दिया था। 5 सितंबर, 2016 को अचानक कंपनियों की उस दलील को मान लिया गया कि इनकम टैक्स डिपार्टमेंट की ओर से जब्त कागजी सबूत असली दस्तावेज नहीं हैं।
 
आईटीएससी का आदेश और इस तरह की घूसखोरी के सबूत दिखाने वाले दस्तावेज सुप्रीम कोर्ट में इस मामले को ( सहारा और बिड़ला के खिलाफ रिश्वत देने का कोई मामला नहीं बनता) चुनौती देने वाली याचिका का हिस्सा हैं। आईटीएससी ने लूज शीट्स और कंप्यूटर प्रिंट आउट समेत उन दस्तावेजों को आसनी से खारिज कर दिया है, जिनमें सहारा की ओर से 14  राजनीतिक दलों के 100 नेताओं को रिश्वत देने का ब्योरा दर्ज है। पिछले साल नवंबर में सामने आए इस मामले ने खलबली मचा दी थी। हालांकि कुछ अखबारों में इसकी खबरें आईं लेकिन इलेक्ट्रॉनिक मीडिया ने इसे नजरअंदाज करना ही बेहतर समझा।
 
बहरहाल शाह की चिट्ठी में कहा गया है कि आयकर विभाग ने अपने अप्रैजल रिपोर्ट में सहारा और बिड़ला की इन दलीलों बकवास करार दिया है कि जब्त दस्तावेज सही नहीं हैं। विभाग का कहना है कि ये दस्तावेज पूरी तरह से सही और वास्तविक हैं।
 
सहारा समूह के यहां से जब्त तीन एक्सेल शीट में दस महीने के अंदर 115 करोड़ रुपये की नकदी हासिल होने और 113 करोड़ की नकदी के पेमेंट का ब्योरा है। पहली शीट 4 मार्च, 2014 तक की है और दूसरी सीट क्रमशः 22 फरवरी, 2014 और 12 नवंबर 2013 की है। तीन शीट्स की एंट्री मिलती हैं। इससे साफ पता चलता है कि देश के कुछ अहम नेताओं को नकदी दी गई। एक्सेल शीट में इस बात पूरा ब्योरा दर्ज है कि किसे, कितना और किसके जरिये भुगतान किया गया है। इसलिए अगर इन ब्योरों को गलत या अवास्तविक बताया जा रहा है तो इसकी जांच जरूरी है।   
 
बिड़ला के मामले में इनकम टैक्स विभाग ने समूह के समूह के डीजीएम (अकाउंट्स) आनंद सक्सेना समेत कई वरिष्ठ अधिकारियों से पूछताछ की है।

आयकर विभाग के अप्रैजल रिपोर्ट के मुताबिक सक्सेना ने कथित तौर पर पांच साल से अनकाउंटेंड ट्रांजेक्शन का ब्योरा मेंटेन किया हुआ था। इस अकाउंट में कुछ आंगड़ियों से पैसा आता रहा था। वह जेके तुलस्यान, आरके कासलीवाल और एएन अग्रवाल से ऐसी रकम हासिल करने के लिए संपर्क में थे। (ये आदित्य बिड़ला समूह की अलग-अलग कंपनियों के कर्मचारी हैं)।
 
रिश्वत की जो रकम रिकार्ड में दर्ज है वो बिड़ला की कई परियोजनाओं को मंजूरी देने के एवज में दी गई है। इनमें 750 मेगावाट के पावर प्लांट के लिए महान कोल ब्लॉक से कोयला निकालने की मंजूरी शामिल है। इस चिट्ठी में यह भी लिखा गया है कि 8 नवंबर 2011 से 17 जून 2013 के बीच तत्कालीन पर्यावरण और वन मंत्री के कार्यकाल में आदित्य बिड़ला समूह के 13 प्रोजेक्ट पास किए  गए।

इन सारे दस्तावेजों में सबसे विवादास्पद वह एंट्री है, जिसमें गुजरात के मुख्यमंत्री रहते नरेंद्र मोदी को 55 करोड़ रुपये देने का जिक्र है।
 
जस्टिस ए पी शाह सिटीजन्स व्हिसलब्लोअर फोरम (सीडब्ल्यूएफ) के अध्यक्ष हैं। अन्य संस्थापक सदस्य हैं जस्टिस संतोष हेगड़े ( पूर्व सुप्रीम कोर्ट जज), एडमिरल  रामदास ( पूर्व नेवी चीफ) वजाहत हब्बीबुल्लाह ( पूर्व मुख्य सूचना आयुक्त) डॉ. ईएएस सरमा ( पूर्व सचिव, भारत सरकार), अरुणा राय ( सामाजिक कार्यकर्ता), जगदीप छोकड़ (प्रमुख, एसोसिएशन ऑफ डेमोक्रेटिक रिफॉर्म्स और पूर्व प्रोफेसर आईआईएम, अहमदाबाद) और प्रशांत भूषण (वरिष्ठ वकील, सुप्रीम कोर्ट)।

The post सहारा-बिड़ला की ओर से मुख्यमंत्रियों नौकरशाहों को रिश्वत देने के पक्के सबूत – जस्टिस एपी शाह appeared first on SabrangIndia.

 
Calling the seized documents “clear evidence of systematic bribery of politicians including several Chief Ministers and public servants by these business groups, ” the letter states that the CWF is in possession of the Apprisal report that document these bribes. The letter by Justice AP Shah may be read here.
 
The letter also states that the CWF has learnt that the CBI (in case of Birla) and the Income Tax Department (in case of Sahara) had recovered and seized documents, notes, laptops and huge amounts of cash.
 
On January 5, Sabrangindia had reported how completely ignored the Income Tax Department’s Appraisal report commenting on the systematic bribes given to politicians.  The same day, following Supreme Court proceedings in the matter, newspapers had reported how, in after the surprise and hastily passed order by the IT Settlement Commission (ITSC) the Sahara group got sudden immunity when the tax panel, the ITSC that had earlier rejected the application of the company suddenly on September 5, 2016 re-admitted it and accepted the companies claim that the seized papers are not real evidence!

The ITSC order and other incriminating documents are part of the ongoing legal effort in the Supreme Court. The evidence so easily dismissed by the ITSC (that it discusses at length in the order) includes the loose sheets and computer print-outs which form the ‘Sahara diaries’ that have alleged payoffs to over 100 politicians from more than 14 parties. This had created a political storm in mid-November when the allegations became public though much of the electronic media chose to ignore them.
 
The IT department’s Appraisal Report had “disbelieved the bogus explanations given by Sahara and Birla officers ad had held that the seized documents were correct and non-fictititious” that depicted the real state of affairs, says Shah’s letter.
 
Justice Shah’s letter reiterates that in the Sahara case, some of the relevant seized documents are the printouts of three Excel sheets showing cash receipt of over Rs 115 crore and cash outflow of over Rs 113 crores during a short period of 10 months. While the first sheer goes up to
While the first sheet goes up to March 4, .2014, the others relate to February 22, 2014 and even November 12, 2013, respectively. The entries in all the three sheets tally with each other. The logs suggest that cash was apparently transferred to several important public figures. The excel sheets show the date of payment, to whom money was paid, the amount paid, through whom it was paid and the place of payment. Therefore, it has been argued, that they contain enough information to initiate a thorough investigation.
 
In the Birla case, the IT Department interrogated in detail senior officers of the Birla group including DGM(Accounts) Anand Saxena.  Through this interrogation and as recorded by the IT department’s appraisal report, Saxena reportedlu maintained records of unaccounted transactions for the last about 5 years continuously and used to receive unaccounted cash through certain angadias on a regular basis for that purpose: he was in touch with persons like GK Tulsian, RK Kasliwal and AN Agarwal to receive such cash (employees of different companies of the Aditya Birla Group. The entries on the alleged bribes given relate to specific project clearances of the group including the 750 MW powerplant supposed to draw coal from the Mahan Coal Block. The letter also notes that during the tenure of the ‘then Minister, Environment& Forest, as many as 13 projects of the Aditya Birla Group companies were cleared between November 8, 2011 and June 17, 2013.
 
One of the most controversial entries was payment to ‘Gujarat CM’ interpreted widely as a total payment of not less than Rs 55 crores to then chief minister, Gujarat,Narendra Modi.
 
Justice Shah is the Chairperson of CWF. Other founder members of CWF are Justice Santosh Hegde (former SC judge), Admiral Ramdas (former Chief of Naval Staff), Mr. Wajahat Habibullah (first CIC), Dr. EAS Sarma (former GoI secretary), Aruna Roy (social activist), Jagdeep Chhokar (Association for Democratic Reforms and former Prof IIM Ahmedabad), and Prashant Bhushan (advocate, SC).

The post Clear Evidence of Bribes of CMS, Bureaucrats in Sahara-Birla Payoffs: Justice AP Shah appeared first on SabrangIndia.