Justice Lokur was speaking at a webinar on ‘The Wrestlers’ Struggle: Accountability of Institutions’ organised by ANHAD and the National Alliance of People’s Movement (NAPM). Other than him, Supreme Court advocates Vrinda Grover and Shahrukh Alam, and senior journalist Bhasha Singh were also a part of the panel. The programme was moderated by Anjali Bhardwaj, a transparency activist and founder of the Delhi-based Satark Nagrik Sangathan (SNS).

Justice Lokur questioned Delhi Police’s handling of the sexual harassment complaint 

Questioning the modus operandi of the Delhi Police while investigating the allegations, and their demand for “concrete evidence” in the form of audios or visuals, Justice Lokur said, “There was a peaceful candle march at Jantar Mantar in May. Later, the police came up with the idea to talk to 100 witnesses. Why was this necessary? It is not as if there was a whole crowd watching the sexual harassment of these girls. Now, the police say that they need audio and video evidence. What is going on? This is not done on the streets but behind closed doors. The investigation is for finding evidence. Otherwise, why have an investigation? The police could be handed all the material to prosecute the fellow and send him to jail.”

Justice Lokur also expressed his surprise over the criminal charges of disturbing the law and order and rioting that were levelled against the protesting wrestlers after they had been detained by the Delhi Police on the day that the new parliament building was inaugurated. He said that the wrestlers who were been protesting against the alleged inaction of the State machinery were ill-treated by the Police. He said that “The complaint of rioting has not been withdrawn. Theoretically, therefore, now these wrestlers who came there as victims of crime have now become the accused. Look at the turn of events. The police also said that they could not come back to the Jantar Mantar to protest,” the retired judge said. 

He also accused the Delhi Police of being complicit, saying, “It is quite obvious that the police is mixed up. They do not want allegations to be proved and they don’t want the investigation to proceed.” 

He further questioned the fairness of the investigation being conducted in the said case. He provided that it has been reiterated and emphasized by the Supreme Court that the investigation of the police needs to be conducted independently, and yet the sports minister know when the report was going to be submitted. Justice Lokur said said, “When the wrestlers threatened to immerse their medals in Ganga as an act of protest, the sports minister assured that the probe would be completed by June 15. But, the question is, how did the minister know? This is something which only the investigating officer, or his superior, could say. Therefore, something is going on behind the scenes. This is very serious because the Supreme Court has said, in a number of judgments, that no one can interfere with an investigation. Not even the Supreme Court. Whether there has been any interference needs to be investigated, not that anyone will. But this is disconcerting to say the least.”

Justice Lokur expressed dissatisfaction over the decision to close the case by the SC

As stated by Justice Lokur, the Supreme Court of India ought to have monitored the investigation carried out by the Delhi Police into the allegations of sexual assault and criminal intimidation Singh. Notably, the women wrestlers had moved the top court seeking registration of an FIR against Singh. On April 28, the Delhi Police had informed a Bench led by CJI DY Chandrachud that an FIR had been registered in the matter. On May 4, the Court closed the wrestlers’ petition taking note of the fact that the Delhi Police has already registered an FIR. The Supreme Court had then turned down women wrestlers’ demand for a court-monitored probe into their allegations of sexual harassment against Singh and closed the proceedings on their petition “for now”, saying an FIR had already been lodged against him. However, it had given liberty to the petitioners to move the jurisdictional magistrate court or the high court for further relief.

Criticising the Court’s approach, the former Supreme Court judge said that the court should have asked the Delhi Police as to why the wrestlers “had” to move the Supreme Court to get an FIR filed in the first place, and should have monitored whether the police is performing their other duties or not. In addition to this, Justice Lokur also expressed his concerns about the fairness of the police investigation, highlighting, in particular, the ‘threat perception’ that  which the Supreme Court had itself acknowledged when it directed one of the complainants, a minor girl, to be provided with security:

“The petition before the Supreme Court questioned why an FIR had not been registered despite it being a cognisable offence. The court issued notice to the police in April and then they come out very magnanimously and agreed to register an FIR. This suggests that there was some substance in the complaint. The first thing the Supreme Court ought to have done is ask why an FIR had not been lodged before the matter was listed, which it did not do. In an affidavit, the court was also informed that there was a threat to the life of the wrestlers. On the next date of hearing, the bench directed police protection to be given which suggests that the life threat indicated to SC was perhaps real. Before the hearing, there was a scuffle that took place in Jantar Mantar where some drunk police officials manhandled the wrestlers, which the court must have been aware of since news about the incident was published in the newspaper. However, during the hearing, the bench said that the petitioners could approach the jurisdictional magistrate or the Delhi High Court in case of anything further. This should not have been said by the Supreme Court.”

Justice Lokur proceeded to substantiate his stance by saying:

“The whole thing suggests that the Delhi Police was slow and the wrestlers were under a threat, which the Supreme Court accepted. Keeping in mind the delay in lodging an FIR, even though it was a case of aggravated sexual assault, and the threat perception, the Supreme Court ought to have monitored the investigation so that nothing goes wrong. The Supreme Court has in the past monitored investigations, not with the view to see that the persons against whom the cases are filed are convicted, but to see that things don’t go wrong, especially in cases involving politically well-connected persons such as the Jain Hawala case in the 90s…In some other cases also because of the nature of the case or persons involved, the court monitors the investigation to see that it does not get derailed. In my view, the court did not fully appreciate the position when they decided to not monitor the investigation. I think they should have.”

Justice Lokur on the Oversight Committee:

Besides this, the former judge also questioned the government’s refusal to make the report of the oversight committee publicly available. According to him, the main driving point behind the wrestlers approaching the Supreme Court was the failure of the government to ‘make public’ the report of an oversight committee established to look into the allegations against Singh as well as the Delhi Police’s refusal to file a first information report (FIR). 

 “The contents of the report were a big secret to everyone, but why? An adverse presumption could be drawn here, as lawyers put it. The first thing that would have been done if the report was in favour of the accused person was that it would have been made public. Therefore, the first presumption is that the report is against the person against whom allegations have been made. The refusal to make the report public, and register and FIR were what drove the wrestlers to protest on the streets.”

Justice Lokur said that the complainants were re-victimised in this case

Earlier this month, in a shocking yet no so surprising turn of events, the father of the underage wrestler, on the strength of whose complaint a case under the Protection of Children from Sexual Offences (POCSO) Act was registered against Singh gave another statement alleging that no sexual harassment had been suffered by the minor wrestlers at the hands of Singh. He said that he and his daughter had made ‘false allegations’ against the WFI president, while also openly talking about the threats and fear their family was facing. With respect to this, Justice Lokur said:

“The minor was interrogated in the presence of four constables for about five hours – till 9:30 PM. What was the need to interrogate for this long when she has already given a written statement? This is nothing but re-victimisation. You have said this. Now, prove what you have said. This is what re-victimisation is all about and all courts have come down heavily against it. Why could they not have proceeded on the basis of the statement made by the minor to a magistrate under Section 164 of CrPC? Another girl was taken to the office, which they said was the scene of the crime. The scene of the crime is the person! It is the complainants’ bodily integrity that has been tampered with. What else is re-victimisation?”

With respect to the police’s intention to secure testimonies of witnesses from foreign countries where the crime was allegedly committed by Brij Bhushan, Justice Lokur said, “Can this be secured by June 15? The sports minister’s assurance has no meaning. Secondly, what kind of information are they hoping to get? These incidents – the sexual assault, stalking – did not take place in public.”

Justice Lokur further said that “Rather than investigating the offence that has allegedly taken place, it seems directed to showing that the accused is innocent and that the wrestlers – including the minor – are saying something false. This appears to be the purpose. Investigations must be fair and unbiased. They cannot take place when persons are under threat. Assuming the matter goes to court, any defence lawyer worth their salt will be able to shred the case to pieces with this background. They will either say that the accused is not guilty or is entitled to the benefit of the doubt. That is the end of the story.”

Justice Lokur on arresting POSCO and sexual harassment accused Singh

“It appears to me,” the retired judge said, “That what is going to happen is a foregone conclusion.” He added, “Brij Bhushan is a powerful, well-connected person, who has not been arrested despite the allegation being one of aggravated sexual assault. He is out there making speeches. Evidence shows that witnesses have been threatened – maybe not by Brij Bhushan directly. Evidence is being tampered with, with the minor and her father going back on their initial statement being an indication of this. In this country, even a person who does not have a passport is arrested, despite not being a flight risk. All the events must be looked at as a whole, and not in isolation.”

During the said webinar, Justice Lokur also pointed out that the WFI did not have a committee to deal with complaints of sexual harassment, as has been mandated by law.

(This copy is based on reports published by LiveLaw and other media)

Related:

Protesting wrestlers will resume stir, say govt not ready to arrest WFI chief by June 15

“I changed my statement because I was scared, my family is living under constant threat”: father of the minor wrestlers’ complainant

From deathly silence to violence: The journey of wrestlers struggling for justice

Protests erupt at Delhi police violent crackdown on Women Wrestlers, FIR, and nationwide outrage

Attempt to Drown out Wrestlers’ Protest with Song and Dance About ‘Temple of Democracy’

When Will Society Hold Men Accountable for Patriarchy

WFI leadership accused of sexual harassment by Indian women wrestlers, absence of redressal mechanisms the focus

Battling the Indian sports industry: the cries for justice by women

The post Clear case of re-victimisation: Former SC judge Madan B Lokur on Delhi Police’s handling of women wrestlers case appeared first on SabrangIndia.

Retired Supreme Court judge, Justice Madan B. Lokur, has described as “unprecedented” and “abnormal” the apex court’s recent order suspending Bombay High Court’s discharge of the paraplegic academic G.N. Saibaba in a Maoist links case.

Justice Lokur has also asserted that according to his knowledge, the apex court’s October 16 order has no judicial precedent.

In recent times, matters of custody have undergone a massive transformation. Those who should not be in custody are denied release and some even die in jail. Those who should remain in custody are released on the flimsiest of reasons and sometimes without any reason,” he has written in an article published in The Wire news portal.

The Nagpur Bench of Bombay High Court had on October 14 “discharged” Saibaba and four others.

The high court took the decision on the ground that the sanction to prosecute the former professor under the anti-terror law UAPA was “bad in law and invalid”, and this had rendered the entire trial null and void. In the reasoned HC order,  division bench has laid down the grounds of the acquittal.

However, the apex court ruled the very next day that the charges against Saibaba and the others were “very serious”, and the convictions could therefore not be set aside on a mere technicality. This is after a previous “urgent” hearing on the evening of the high court order, October 15, when another bench of the Supreme Court had expressed the view that not only was there no call for the kind of urgency displayed by the Maharashtra government, but how could a reasoned acquittal that too by the High Court be suspended just like that ? Tushar Mehta, Solicitor General appeared for the Maharashtra government in the matter.

“Issues of personal liberty are not technicalities” but a matter of fundamental right, Justice Lokur has written.

Justice Lokur writes: “There are several reasons for these thoughts, one of them being that the suspension order in a case of discharge by the SC is unprecedented and, to the best of my knowledge, not supported by any previous order of the top court. Is this the beginning of another new abnormal?”

The former judge says it’s a matter of the fundamental principles of jurisprudence that special criminal laws like Tada, Pota, Mcoca and the UAPA mandate prior sanction from the competent authority before proceedings start against an accused.

Yet, he says, the trial court proceeded with the trial (without a valid sanction against Saibaba), and convicted and sentenced Saibaba and others to life imprisonment.

Justice Lokur writes that the conviction was rightly set aside and the accused discharged as the entire trial had become “null and void”.

He notes that Saibaba was arrested on May 9, 2014, after about eight months of the investigating agency conducting searches at his home. The competent authority had on February 15, 2014, granted sanction for prosecution against five accused. Saibaba was not one of them — he had not even been arrested at the time.

“This is important because it suggests that either there was no case against him or the evidence against him was thin. The next day, on February 16, a final report on the investigations against six persons was filed by the police before a magistrate. Saibaba was one of them, even though sanction for his prosecution had not been granted. The final report made allegations against the accused of having committed terrorist offences under the Unlawful Activities (Prevention) Act (UAPA),” Justice Lokur writes.

He also notes that on April 6, 2015, an order was passed by the competent authority according sanction to prosecute Saibaba under the UAPA. But before the sanction order, charges had been framed against Saibaba and he had pleaded not guilty.

“The question is: Can a sessions judge take cognisance of an offence, frame charges against an accused person, record his plea and examine a witness without a sanction order permitting prosecution of an accused? You don’t need a law degree or too much imagination to answer that question,” Justice Lokur writes.

He then refers to Section 20A(2) of the Terrorist and Disruptive Activities Act (Tada) which says: “No court shall take cognisance of any offence under this Act without the previous sanction of the inspector-general of police, or as the case may be, the commissioner of police.”

Justice Lokur writes: “Plain and simple English. This does not need any paraphrasing and can be understood by anybody.”

He also refers to Section 50 of the Prevention of Terrorism Act (Pota); Section 23(2) of the Maharashtra Control of Organised Crime Act (Mcoca) and Section 45 of the UAPA, which mandates prior sanction from the government before cognisance is taken against the accused by the trial court.

 “In other words, in the case of Saibaba, the court could not have taken cognisance of the offence alleged, charges could not have been framed against him, his plea of not guilty could not have been recorded and the testimony of PW-1 (prosecution witness) could not have been recorded. Quite clearly, the entire proceedings against Saibaba are null and void without the previous sanction to prosecute him,” Justice Lokur writes.

He says: “A case of discharge places an accused person on a stronger footing than an acquittal. But that is only temporary — since a fresh trial can take place in the case of discharge, but a fresh trial cannot take place in the case of an acquittal.”

Justice Lokur has also referred to the way the Maharashtra government’s appeal against the high court verdict was listed before the Supreme Court for hearing the very next day.

The former judge underscored that the state government’s appeal was filed and mentioned at about 4pm on October 14 before a bench of two judges headed by Justice D.Y. Chandrachud. The bench indicated that the matter would be taken up for consideration on October 17.

“An article or two suggest that the petition was then taken up for consideration before the registry and disregarding what was said by the bench, the registry listed the case for consideration on Saturday (October 15)…,” Justice Lokur writes.

“Even though Saibaba was convicted of terrorist offences by the sessions judge, Bombay High Court found the trial to be null and void. As such, he is today not guilty of any offence…. Why then should he continue in jail, even without taking all the health conditions into consideration? Due to his disabilities, he obviously cannot be a flight risk, he cannot influence witnesses because the ‘trial’ is over and there are no more witnesses to be influenced by him or by anybody else,” he adds.

“Why then should he continue to remain in jail? …Issues of personal liberty are not technicalities. Personal liberty is a substantive fundamental right guaranteed by Article 21 of the constitution. Thank God for that.”
 

Related:

Supreme Court suspends Bombay High Court order acquitting GN Saibaba and five others in Maoist links case, all to remain in jail

Bombay HC acquits Professor GN Saibaba & five others in Maolist link case, says ‘national security’ not above due process

Defence Committee for GN Saibaba Urges SC to Reconsider Case, Wife Says ‘Will Wait for Justice’

The post Unprecedented, Abnormal, SC order of ‘suspension’ of sentence in GN Saibaba case appeared first on SabrangIndia.

Former Supreme Court judge Justice Madan B Lokur opined that the Central Government is not entitled to selectively pick and choose names by segregating resolutions made by the Supreme Court collegium. He also stated that that it is unfair on the part of the Centre to keep certain collegium proposals pending.

The retired Supreme Court judge was speaking in an  interview with Manu Sebastian, the Managing Editor of LiveLaw, on the topic of judicial appointments. Responding to a query regarding the recent trend of Centre selectively keeping certain proposals pending, Justice Lokur said :

“There are rumours of speculations as to why the government is taking so much of time, why are they taking up some and not the others. Is there some kind of favouritism, nepotism? Why is all this such a big secret? You have heard cases right here in Delhi where names have been sent, two people were picked up and other six were not picked up and two of them were appointed. Then after that, another four were appointed and two were not appointed. And then after that, another two were appointed. Why? Chief Justice Lodha had said at one point of time that don’t segregate the names. What is actually being sent is one recommendation which consists of five names or 10 names. There is a reason for the order in which they are sent, the order could be seniority or probably the date of registration as a member of the bar Council. Now you disturb that because you segregate. That is like telling the collegium that ‘listen, we don’t care what you think, we will do what we think and there is nobody to question’. The Supreme Court collegium is to then keep quiet and says that ‘okay, you are entitled to segregate’. No, but you’re not entitled to segregate! It is one recommendation. You either accept it in the full, defer it in the full or reject it in the full . It affects the overall seniority of the person, don’t piecemeal to pick up one person from here or there, it gives rise to rumours and speculations. Why should that happen?”

On Centre sitting over collegium resolutions

Justice Lokur also sharply criticised the practice of the Centre sitting over collegium resolutions. He noted that certain names which have been reiterated by the collegium more than once have been ignored by the Centre, although as per the judicial precedent, the collegium reiterations are binding on the executive. Even when the names are returned, there is no way to know the reasons.

“If the government tells the Supreme Court collegium that we are returning these names for reconsideration or whatever, why are they sent back? Do we know? Except speculation, not even speculation, there is no way to understand why they are returning the names. You can’t even speculate on that. The Supreme Court then sends it back, reiterates the name. The government sits on it for months all together, in some cases, for years together. Why are we not entitled to know these things? Is this the way the government wants to treat the Supreme Court of India- that ‘we don’t care what you recommend, we will do what we want’? Should we tolerate this, should we accept this? Can they say that ‘Supreme Court, you can say whatever you want, but we will do what we want, we don’t care’? I don’t think that is fair to the judiciary, I don’t think that is fair to the justice delivery system, to the institution, to the country that you treat our Supreme Court in this manner. You can’t treat the Supreme Court in this manner, let’s be clear about this”.

The rest of the interview on LiveLaw may be read here

Before this most recent controversy over the government deliberately sitting on the recommendation of the collegium on Justice Muralidhar, another judge with impeccable credentials had received similarly cavalier treatment by this government.

Justice Kureshi was also in line to become the Chief Justice of the Madhya Pradesh High in 2019, on the recommendation of the Supreme Court collegium, but the Centre returned his file. On May 10, 2019 the Supreme Court in its resolution had said, “Mr. Justice A.A. Kureshi is the senior-most Judge from Gujarat High Court and at present is functioning, on transfer, in Bombay High Court. Having regard to all relevant factors, the Collegium is of the considered view that Mr. Justice A.A Kureshi is suitable in all respects for being appointed as Chief Justice of the Madhya Pradesh High Court. The Collegium resolves to recommend accordingly.” Again, then as now, the Centre, flexing its muscles over the judiciary, refused to yield to the Collegium’s recommendation.

Related:

Who is Justice Akil Kureshi?

The post Centre must not segregate collegium resolutions, Supreme Court should be firm against the executive for sitting over proposals: Justice MB Lokur appeared first on SabrangIndia.

Justice Madan Lokur, who retired from the Supreme Court of India, spoke on the constitutional limits and judicial interpretations of hate speech at an online discussion on ‘Defeating Hate, Defending the Constitution’ organised by ANHAD and the Satark Nagrik Sangathan on October 2, 2022. In his speech,

Justice Lokur looked at how the Supreme Court has interpreted hate speech and the laws around it over the years, and why it is important to think about this question urgently and find solutions within the constitution.

Read the full text of Justice Lokur’s comments below.

I would like to speak a little bit about hate and hate speech and the constitutional limits of hate speech and how the Supreme Court has interpreted hate speech and the laws.

We all know that under our Fundamental Rights chapter of the Constitution, Article 19 gives all of us, everybody, the Fundamental Right to Free Speech and Expression, and this has been expanded by the Supreme Court many years ago, in the 1950s, to freedom of the press.  So it is not only that individuals have the freedom of speech and expression, but also newspapers, magazines, they also have the freedom of speech and expression. This is Article 19 (1A) of the constitution.

Now Article 19(2) provides a limit to free speech. It is not that because we have the fundamental right to free speech, anybody can say whatever he or she wants. There are certain limits and we are really concerned with 2 or 3 aspects of this. One is about public order, because that is something which is being used a lot to curb free speech. Not so much as sovereignty and integrity of India or the security of the state, but really public order is being mentioned as one of the reasons for curbing free speech.

Also, another reason is to prevent incitement to an offence. So you can’t kill somebody, although I think we have found in the recent past that to say “goli maaro” seems to be quite all right, but that’s one of the unfortunate aspects of all this.

How do we define public order? The Supreme Court has again dealt with the issue of public order or the definition of public order a long time back. In the 1960s they had dealt with the issue of public order.

So what the Supreme Court says is that you imagine three concentric circles. The largest circle is that of law and order which is something that we all know – if there’s a theft or if there’s a murder or if there’s some other crime, that’s an issue of law and order. So that would be the larger circle.

Within that you have a smaller circle, which is public order. So just because something is a law and order issue it does not mean it’s a public order issue. So there are a few things which could fall within the category of public order but not everything, although it may fall within the category of law and order.

Then the third concentric circle is an even smaller circle, and that is security of state or sovereignty and integrity of India. so it is under these, this third category, that you have something like the National Security Act or during the Emergency, you had the Maintenance of Internal Security Act (MISA). So that is a very narrow sort of a thing where the sovereignty, integrity of India or the security of the state is involved.

So public order really is not a law and order issue, but it is something much more than a law and order issue. Something like a riot for example would be a public order issue.

Now how has the Supreme Court actually deal with the issue of hate speech, which we have found in the last couple of years taking centre stage, so to speak. Can I say something, you know, which will offend somebody else? What are the limits for my speech? What can the state do if I transgress that limit? What is that limit? You know, these are issues that have been arising in the recent past.

The first such case that was taken up by the Supreme Court was in 2004. In one sense it was an important decision.

What had happened in that case was that Praveen Togadia, who was known at that time for giving speeches which would incite or inflame communal passions, he had wanted to go to Karnataka to give some speeches, he was invited to Karnataka to give some speeches, and the district authorities prohibited his entry – they said, ‘No we cannot permit you to give speeches over here because of the background that you have been giving these communally inflammatory speeches and there could be a, you know, public order issue in the sense that communal passions will be inflamed and then there could be riots and so on.’

So they said that there would be a public order issue if you are allowed to speak, given the background of your speeches in the past. This was challenged by Praveen Togadia. It was set aside by the Karnataka high court, then the state went up to the Supreme Court and the Supreme Court said that the restriction is reasonable, because of the background. It is known that he has been giving these communally inflammatory speeches and that there is a possibility, a real possibility, of a public order issue and therefore, the state was or the district authorities were well within their rights to prohibit his entry so that he does not make these speeches, which creates a public order issue.

The next case of some importance came in 2014. That was a case filed by an organisation called the Pravasi Bhalai Sangathan. Now this was with regard to politicians making inflammatory speeches. And to me it seems that this is a very important case because it lays down certain principles, certain guidelines within the judgment, not formal guidelines. The Supreme Court said we are not going to frame formal guidelines, but they did say that there are enough laws to tackle hate speech and we don’t need any further laws of this.

The problem is not that there is a shortage of laws. The problem is that these laws are not being effectively executed or effectively implemented. Some of the laws are the IPC, for example, Section 153a. You have the Protection of Civil Rights Act, you have the Representation of the People Act, you also have the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. So you have these laws which are in place, but they are not being effectively implemented, or they are not being properly implemented, that is one aspect.

So because we have these laws we don’t think, that’s what the Supreme Court said, we don’t think it is necessary for us to lay down any guidelines. You just have to proceed in accordance with the law. And, nevertheless, the Supreme Court did provide some kind of a working definition.

This was really the first time when a sort of a definition was provided by the Supreme Court as a working definition, not that this is hate speech and this is not hate speech – that’s not what the Supreme Court said. They said that we are providing you a working definition and you have to build on that. The legislature of parliament has to build on that.

But what is important about this judgment is that they recognised psychological harm that may be caused to people, by the use of hate speech. It’s not that somebody says something hateful or somebody is abusive or makes some communally inflammatory statement or something, and that’s it, it’s said and forgotten. It leaves behind a psychological impact and that is something which is very important which the Supreme Court recognised.

It doesn’t have to be violence, you know, just because somebody says something, it should not necessarily lead to a riot or lead to somebody beating up somebody else, but that psychological impact can be there and that would include, would fall within the definition of hate speech or the result of hate speech.

The Supreme Court also said, again very important, that hate speech can lead to discrimination, it can lead to ostracism, it can lead to segregation, it can lead to deportation, it can lead to violence. And then the Supreme Court went on to say that in extreme cases, it can lead to genocide. Now we have seen that during the Second World War, where this kind of hate speech led to the execution of 6 million Jews. So you know all this is is a part of hate speech, and all this is a result of hate speech or what could possibly be the result of hate speech – in extreme cases, the Supreme Court said it could lead to the genocide.

The Supreme Court also looked at the definition of sedition.

Now sedition also talks about hate, about hateful speech, and they said that well sedition talks about hateful speech and they tried to equate it in a sense with hate speech, but I think sedition should fall in a separate category altogether.

But at the end of it the Supreme Court said that given the status that we have, given the developments that have taken place, we would request the Law Commission of India to prepare a report and tell us how to define hate speech, how to proceed in matters of hate speech.

Now the result of the order of the Supreme Court was, I think, very liberal in the sense that violence is not necessarily a result of hate speech.

But the other important consequence was that the Law Commission of India came out with a report. It was the 267th report of the Law Commission. They looked into various aspects of hate speech and the development of the law, not only in India but also through the United Nations and some other countries, and they gave a very detailed report. Importantly, they also prepared a draft bill which could actually be placed before Parliament, debated, discussed, and enacted into a law if necessary. So they gave a draft bill but unfortunately no further steps have been taken, no action has been taken on the report of the Law Commission. In fact, the Law Commission has more or less ceased to exist, no chairperson has been appointed to the Law Commission for the last so many years, and in a sense it has become a defunct body. I don’t know whether it is because of the report that they gave or for some other reasons but today there is no effective Law Commission.

Anyway, the next important case or the next important development is the decision of the Supreme Court in the case of Amish Devgan. He’s a TV personality and he had said something which was offensive and the Supreme Court looked into the allegations that were made against him, looked into the case law all over again.

And the way I read the judgment of the Supreme Court in the case of Amish Devgan is that it has taken a step backward, in the sense it has tried to include violence as one of the consequences of hate speech, which you will remember when I had mentioned about the Pravasi Bhalai Sangathan. Violence was not considered as an impact.

But what the Supreme Court said was very important. They said that look at the content of the speech. Look at the intent of the speech or look at the intent of the speaker. Look at the harm or the impact that it has caused or is likely to cause. Now you could have content which could be good faith, you know somebody writes an article or somebody writes a you know research paper. It’s a legitimate purpose, so the content may be offensive, but there is no intent to cause any harm. It’s a part of the expression of a view that has been canvassed by somebody, which forms a part of the paper or forms a part of the research.

What is the intent, that is the other important thing that well it could be a neutral sort of a statement but is there an intent behind it which is hate? If it is so, well then you have to be very careful about it.

What is the impact that the speech has? It may not lead to violence, although in Amish Devgan’s case the Supreme Court hinted at violence, but it would certainly lead to psychological impact and psychological problems; ostracism, discrimination, segregation, violence.

All these would come in. So really, if you go by this content, intent, and harm, or impact, I think that that’s a good first step to take towards eradicating late speech, or curbing hate speech, or punishing hate speech under the Constitution and under the laws that we have.

Now, you know, when you talk about effective implementation and so on there is obviously misuse of the laws. I would just like to mention one case, two cases actually.

One is that of Patricia Mukhim. She’s a very seasoned and highly respected journalist in the Northeast, based in Meghalaya, in Shillong. She came out with a tweet or a Facebook post to say that the Government of Meghalaya is showing apathy towards the treatment of non-tribals, and action was taken against her. On the ground that it’s a public order issue and public order is constitutionally prohibited. And they filed a case against her.

She came to the Supreme Court and the Supreme Court said, ‘Listen she is trying to tell you, that is the government, she’s trying to tell you that please protect non-tribals. She’s not trying to inflame passions, it’s just absolutely the opposite. You know she wants to bring in peace, but you are interpreting it in such a manner that “oh you know she wants to create a problem”.’ So the Supreme Court struck down the the action that was taken against her, but this is how the law can be misused.

The second incident that I would like to mention is something which has happened yesterday. I read about it in the newspapers today. You’re all aware that there is a Bharat Jodo Yatra that is going on, and it’s in Karnataka it’s going on in Karnataka at the moment. And there was a person who was wearing a particular t-shirt, which carried a particular slogan, and the police found it offensive and they beat him up.

Why? Because it is offensive, right. It may not be hate but it is offensive and according to newspaper reports charges have been brought against him not formally in a court, of criminal intimidation. Now under Section 507 of the IPC I don’t see how that is possible, you know.

So the whole purpose of this is to somehow or the other avoid dissent, avoid disagreement. Either you are with us or you are against us, if you’re against us well it’s a problem, you know, we have enough laws to deal with what we think is hate speech. It may not be, but we think it is hate speech and we will take action against you and then you go to the court of law do whatever you want but the action has been taken. So this is, I think, where we have to be very careful when we talk about hate, when we talk about hate speech.

How are we going to regulate that under the constitution of India? I think it is time for us to think about it and time for us to do something positive to ensure that we wipe this out, and this divisiveness that is going on is completely wiped out.

Thank you very much.

The post How the Supreme Court has interpreted hate speech over decades appeared first on SabrangIndia.

Former Supreme Court judge Justice Madan B Lokur has called for a deeper examination of how a committee of the Gujarat government recently granted remission to eleven men convicted of mass murder and gang rapes in the Bilkis Bano case. Speaking to NewsClick, Justice Lokur said he found the remission in this case “rather astonishing”. The former judge said, “I think we need a White Paper on the entire episode.” 

The remission granted to men convicted of brutal criminal assaults during the communal conflagration in Gujarat in 2002 has become a litmus test for women’s rights in India. It has also made people wonder if the judiciary can protect these rights against State overreach. What makes matters worse is remission for the brutal mass murderers and rapists came on Independence Day. 

It is important to note that Justice Lokur is not the only former judge who has spoken out against the remission. It prompted former Bombay High Court Justice UD Salvi, who led the CBI court that convicted the eleven men, to describe the remission as a “rebellion against the judicial apparatus”. Retired justice Deepak Gupta of the Supreme Court of India has also termed this remission immoral, unfair and unjust. Justice Lokur, who retired from the Supreme Court in 2018, earlier said that news of the remission came as an “unpleasant surprise”. 

NewsClick asked Justice Lokur if the Supreme Court could undo the injustice done to Bilkis Bano. He responded that the law is “very much in favour of overturning the remission”. He also said, “I am quite hopeful that justice will be done.” However, since the remission order is not in the public domain, he could not comment on the grounds relied upon by the committee to allow the remission. In this context, he said, “Prima facie, granting remission to all eleven convicts will require strong justification. The remission order will certainly be worth seeing.” 

A key question, in this case, is what signal it has sent to women. Justice Lokur said, “The remission order sends out a message that conviction does not mean that justice has been done. Gender justice has a long way to go.” 

This remission also has socio-political ramifications. For example, there is a demand of the Shiromani Gurudwara Parbandhak Committee (SGPC), which oversees Sikh religious matters, to release Sikh prisoners who are known to have completed their life terms. Members of the SGPC staged a protest at Harmandir Sahib after the remission in the Bilkis Bano case, reiterating this demand. Some prisoners whose release the SGPC seeks were arrested during the phase of militancy in Punjab. 

Justice Lokur says, “Of course, this [remission in Bilkis Bano case] could be a precedent for granting remission even in case of heinous crimes. The fallout of the remission order is quite obvious. I’m not surprised by the [SGPC] protest.”

Remission of crimes seen as rarest of rare, or extreme in their cruelty and danger posed to society, could encourage other criminals and convicts, not to mention state governments seeking to benefit from polarising society or lowering the status of women. 

Convicts may also feel entitled to release on specious grounds, considering a member of the committee that granted remission in the Bilkis Bano case defended the convicts as well-behaved for they belonged to the elite Brahmin caste. 

Another key concern in the remission in the Bilkis Bano case is why none of the eleven convicts ever appealed to the Supreme Court against the Bombay High Court order sentencing them. It is generally understood that convicts seek remission whenever the option becomes available to them under the law. Justice Lokur expresses surprise in this aspect of the case. “Frankly, I find this rather astonishing. In most such cases [of convictions for heinous crimes], where a life sentence is given, the convict will file an appeal in the highest court, but this did not happen with even one of the eleven who had been convicted,” he said. He then said a white paper is required on the entire episode. 

The question arises, can the Supreme Court step in once the committee in Gujarat has granted remission? Reportedly, the consent of the CBI court judge who convicted these eleven men is necessitated by the law but was not taken. However, there are not enough details in the public domain to arrive at a conclusion.

“The law is intended to protect people and enable them to live an orderly life,” Justice Lokur said. He added, “Unfortunately, the law is now being weaponised to prosecute and persecute people. Tragically, we are passing through this phase.” He rued that things have come to this pass because “some are more equal than others” in our country. 

Justice Lokur agrees “absolutely” that the remission in the Bilkis Bano case is a symptom of majoritarian rule with the tacit support of the government. This is also because some convicts in the Bilkis Bano case were found guilty of committing numerous heinous crimes. He said, “Some (if not all) of the eleven have been given more than one life sentence—two definitely, and perhaps more. If such people are entitled to remission, we need to introspect and seriously consider where we are heading.”

Most importantly, Justice Lokur said, “As it is, women have a tough time dealing with offences such as domestic violence, dowry demands, sexual harassment and so on. Dealing with sexual offences has always been a problem.” 

It is no wonder that on hearing of the release of the eleven convicts, Bilkis Bano said, “Is this the end of justice?” The question before Indian women is, where must they turn if justice is no longer dispensed with an even hand.

The author is a freelance journalist. The views are personal.

Courtesy: https://www.newsclick.in

The post ‘Astonishing’, Need White Paper on Remission in Bilkis Bano: Justice Madan Lokur appeared first on SabrangIndia.

On October 13, former Supreme Court Judge Madan B. Lokur warned against the growing culture of crushing dissent in India. Justice Lokur, who is an eminent jurist and constitutional authority, was delivering the 2020 B.G. Verghese Memorial Lecture where he addressed the “gradual erosion of one of our most precious fundamental rights – the inalienable right to freedom of speech and expression, an erosion that is leading to the gradual destruction of our human right to dissent and protest.”

He said, “This lethal cocktail is adversely impacting the liberty of all those who dare to speak up. Article 21 of our Constitution, the right to life and personal liberty is under a silent threat and we all know the consequence of losing our liberty – simply put, we will cease to be a democratic republic.”

Justice Lokur minced no words as he addressed the present political climate saying, “Our freedom of speech is being eroded and mauled through twisting and turning the law if not abusing it altogether. The law needs to be objectively interpreted but subjective satisfaction has taken over and the consequences are unpalatable:  dissent or expression of a different point of view has become an issue to the extent that bona fide speech sometimes becomes a security threat.”

He added, “Some cynics glibly suggest that if the speaker is not guilty, he or she will be acquitted of the charges framed, but the fact of the matter is that detention as an under-trial is a gut-wrenching experience for anyone and particularly for a person whose cries of innocence fall on deaf ears. Such a person looks to the judiciary for protecting his or her freedom of speech and liberty but gets overwhelmed by the painfully slow justice delivery system.”

Strongly arguing that “one of the worst forms of curtailment of the freedom of speech is charging a person with sedition,” Justice Lokur stressed that the Supreme Court had laid down the sedition law clearly and cogently as early as 1962 in the Kedar Nath Singh vs. State of Bihar, yet the authorities have found various ways of ‘weaponising’ the sedition laws.”

Justice Lokur also “catalogued new methods of silencing speech”. These methods include attributing to a speaker something he or she never said and then to institute punitive proceedings against the person on the basis of this cooked up “speech.” Referring to the case of the preventive detention of Dr. Kafeel Khan, Justice Lokur regretted that “almost every procedure known to law was violated” by the detaining authorities.

Again, referring to the arrest of Ms Devangana Kalia on May 25, 2020 and the subsequent relief granted to her by the Delhi High Court, Justice Lokur was constrained to draw “a frightening inference” that any citizen “can be arrested on the basis of a fairy-tale and will have to go through a long- drawn process for being set free.”

Justice Lokur noted the use, perhaps for the first time, of Section 144 of the Cr. P.C. to keep the media out of the Hathras gang-rape area and concluded that “this is nothing but an egregious violation of the freedom of the Press through a bizarre abuse of law.”

Similarly, according to Justice Lokur, the frequent internet shutdowns through “blanket orders under the guise of preventing breach of peace” were highly disproportionate responses. 

The entire text of Justice Lokur’s speech may be read here: 

Besides the B.G.Verghese Memorial Lecture, the Media Foundation also presented the 2019 Chameli Devi Jain Award for an Outstanding Woman Journalist. This year, the award was shared by Ms Arfa Khanum Sherwani of The Wire and Ms Rohini Mohan, a Bengaluru-based independent journalist. Ms. Rukmini S., an independent data-journalist from Chennai received an Honorable Mention.                                     

Related:

The era of the SC’s glorious jurisprudence has vanished: Justice AP Shah

The post Erosion of Right to Free Speech leading to destruction of Right to Dissent: Justice Madan Lokur appeared first on SabrangIndia.