A total of three judgments were delivered upon the said case, with CJI Chandrachud authoring his judgment, Justice Surya Kant authoring the second concurring judgment for himself as well as on behalf of Justices Misra and MM Sundresh. Justice Pardiwala gave a dissenting judgment to hold Section 6A as unconstitutional.

It is essential to note that Section 6A allows foreign migrants of Indian origin, who arrived in Assam between January 1, 1966, and March 25, 1971, to apply for Indian citizenship. Indigenous groups in Assam have contested this section, arguing that it effectively legalises the illegal entry of migrants, particularly from Bangladesh, into the state. 

The court reserved its judgment on December 12, 2023, after hearing submissions over four days from key legal representatives, including Attorney General R Venkataramani, Solicitor General Tushar Mehta, and senior advocates Shyam Divan and Kapil Sibal. 

Section 6A and the Assam Accord: Central to the case

Section 6A was introduced into the Citizenship Act in 1985 as a special provision arising from the Assam Accord—a tripartite agreement signed between the central government under former Prime Minister Rajiv Gandhi, the Assam government, and the All Assam Students Union (AASU). This agreement sought to address the issue of illegal immigration in Assam and preserve the cultural and linguistic identity of the Assamese people.

According to the provision, migrants from Bangladesh and other specified territories who entered Assam between January 1, 1966, and March 25, 1971, were eligible to register for Indian citizenship under Section 18. The Accord fixed March 25, 1971, as the cut-off date for citizenship, in line with the culmination of the Assam agitation, which aimed to identify and deport illegal immigrants. The Supreme Court will now decide whether this provision stands in violation of the Indian Constitution, following a challenge by multiple petitioners. Chander Uday Singh appeared for Citizens for Justice & Peace (CJP) who had also intervened in the matter.

Brief of the three judgments delivered (based on the pronouncements)

Key observations in CJI DY Chandrachud’s opinion on Section 6A: In his judgment, Chief Justice DY Chandrachud noted that the Assam Accord was a political solution to address the issue of illegal migration, while Section 6A of the Citizenship Act was its legislative counterpart. His opinion upheld the constitutionality of Section 6A, stating that Parliament had the legislative authority to enact this provision. The judgment emphasised that Section 6A was created to balance humanitarian concerns with the need to protect Assam’s local population from the effects of illegal immigration.

The Court also justified Assam being singled out from other states sharing borders with Bangladesh. It reasoned that the proportion of immigrants to the local population in Assam was significantly higher compared to other border states. For instance, while West Bengal had 57 lakh migrants, Assam had 40 lakhs, but the impact in Assam was more profound due to its smaller geographical area. Thus, the influx of migrants posed a much greater challenge to Assam’s demographic balance.

CJI Chandrachud stated during the pronouncement that “The magnitude of influx of migrants in Assam is 40 Lakhs which is higher in Assam as compared to other states considering the smaller land size.”

Furthermore, CJI Chandrachud’s judgment affirmed that the cut-off date of March 25, 1971, was reasonable, as it coincided with the end of the Bangladesh Liberation War. The objective of the provision, according to the court, must be viewed in the context of that war. The Court concluded that Section 6A was neither “over-inclusive nor under-inclusive” in its scope and application.

According to LiveLaw, CJI Chandrachud stated “The objective of the provision (S.6A) must be understood in the backdrop of the Post-Bangladesh War.”

CJI Chandrachud also addressed concerns related to Article 29(1) of the Constitution, which protects the rights of citizens to preserve their linguistic and cultural heritage. He clarified that the mere presence of diverse ethnic groups in Assam did not automatically infringe upon the rights of the indigenous population. Petitioners, he said, needed to demonstrate that the existence of another ethnic group directly hindered the ability of the local population to safeguard its language and culture.

Justice Surya Kant’s perspective on Section 6A and Fraternity: Justice Surya Kant, in his judgment on Section 6A of the Citizenship Act, provided a distinct view, particularly addressing the argument that the provision violated the principle of fraternity enshrined in the Preamble to the Constitution. The petitioners had argued that the influx of migrants allowed citizenship under Section 6A undermined the bond of fraternity among Indian citizens, especially within Assam’s indigenous communities. They contended that the demographic shifts resulting from this provision threatened the social harmony of the state. Justice Surya Kant firmly rejected this argument. 

He clarified that the concept of fraternity cannot be understood in such a narrow, exclusionary sense. According to him, fraternity does not imply that individuals or communities should have the right to determine who their neighbours or fellow citizens should be. The principle, he explained, is about promoting a sense of brotherhood and unity among citizens, irrespective of ethnic or cultural backgrounds.

During the pronouncement, Justice Kant said “We have formed the questions like if Section 6A suffers from manifest arbitrariness, is against the principle of fraternity, causes external aggression or internal disturbances etc and if so, how can the 2 legislations be read harmoniously. Our conclusion is that petitioners want to control and choose the meaning of Fraternity and who become their neighbours.”

In his judgment on Section 6A of the Citizenship Act, Justice Surya Kant upheld the provision, affirming that the Parliament had the legislative competence to lay down the conditions under Section 6A. He emphasised that this legislative measure, stemming from the Assam Accord, was a rational solution designed to address the complex issue of illegal immigration into Assam. 

As per LiveLaw, Justice Kant stated “Parliament had legislative powers to lay down the conditions under S.6A and that cannot be controlled.”

Justice Kant rejected the petitioners’ arguments against the provision, particularly their claim of manifest arbitrariness regarding the cut-off date of March 25, 1971. He stated that the cut-off date was a policy decision by the legislature, not arbitrary, and could not be judicially reviewed.

Justice Kant provided “that argument of manifest arbitrariness on the basis of the cut-off date is not accepted by us, it is upon the policy of the legislature. Section 6A does not operate perpetually, cannot suffer from manifest arbitrariness.”

Justice Kant also dismissed the argument that Section 6A contradicted Section 9 of the Citizenship Act. Notably, Section 9 of the Citizenship Act, 1955 deals with the termination of citizenship in cases where an Indian citizen acquires citizenship of another country. Through his judgment, Justice Kant clarified that both provisions could coexist and should be read harmoniously. In doing so, he also noted that Section 6A does not perpetually confer citizenship and must be enforced under specific conditions, while immigrants entering after the 25th of March, 1971, cannot be conferred citizenship.

He further addressed the term “ordinary resident,” noting that while the authorities might interpret it in legal terms, for many affected individuals, the expression might be too vague and hard to understand. This complexity, however, did not render the provision unconstitutional.

On the question of whether Section 6A violated the fraternity principle enshrined in the Preamble of the Indian Constitution, Justice Surya Kant rejected the petitioners’ contention. He observed that fraternity cannot be understood in a narrow sense, where one has the right to choose their neighbours. Fraternity, in his view, does not imply exclusion or the right to block certain groups from citizenship based on ethnic or cultural concerns.

Justice Kant also noted that despite the petitioners’ claims, they failed to demonstrate any constitutional impact on their communities due to Section 6A. Therefore, the challenges based on Articles 21 and 29 (which protect the right to life and the right to conserve language and culture) were not substantiated.

Justice Kant stated “the petitioners have not been able to show a constitutional impact on their communities. The challenge on grounds of Article 21 and 29 are thus closed.”

Finally, Justice Kant emphasised that the Foreigners Tribunals should be used to determine the status of suspected illegal immigrants in Assam and stated that the Foreigners Act and related provisions should be read in harmony with Section 6A to ensure proper detection of foreigners. 

However, he also criticised the inadequate enforcement of Section 6A, which had led to widespread injustice in Assam.

Justice Surya Kant also said that “There is inadequate enforcement of the same (Section 6A) leading to widespread injustice. The citizenship can be given between the cut off dates subject to fulfilling the conditions, the immigrants who enter after 25 March 1971 cannot be conferred citizenship.”

To understand the verdict of the four judges (CJI DY Chandrachud, Justice Surya Kant, MM Sudaresh, Manok Misra), it is crucial to look at the Conclusions and Directions at Para 387 of the Judgement authored by Justice Surya Kant:

A. Conclusions and Directions

387. Drawing upon the comprehensive analysis presented in the preceding sections, we thus hold that Section 6A falls within the bounds of the Constitution and does not contravene the foundational principles of fraternity, nor does it infringe upon Articles 6 and 7, Article 9, Article 14, Article 21, Article 29, Article 326, or Article 355 of the Constitution of India. Furthermore, Section 6A does not clash with the IEAA or established principles of international law. Hence, the constitutional validity of Section 6A, as contested before us, is resolved accordingly.
388. Nevertheless, it is imperative to acknowledge and address the valid concerns raised by the Petitioners regarding the persistent immigration in the State of Assam post 25.03.1971. Although Section 6A conferred citizenship rights exclusively to immigrants arriving before this cut-off date, there seems to still be an ongoing influx of migrants through various border States of India. Due to porous borders and incomplete fencing, this unceasing migration imposes a significant challenge.
389. On account of these concerns, we passed an order on 07.12.2023 and directed the Respondent Union of India to provide data, inter alia, the estimated inflow of illegal migrants into India after 25.03.1971, the number of cases presently pending before the Foreigner Tribunals for such immigrants and the extent to which border fencing has been carried out.
390. Regarding the inquiry into the estimated influx of illegal migrants post 25.03.1971, the Union of India was unable to provide precise figures due to the clandestine nature of such inflows. This underscores the necessity for more robust policy measures to curb illicit movements and enhance border regulation. Additionally, it was disclosed that approximately 97,714 cases are pending before the Foreigner Tribunals, and nearly 850 kilometres of border remain unfenced or inadequately monitored.
391. We hold that while the statutory scheme of Section 6A is constitutionally valid, there is inadequate enforcement of the same—leading to the possibility of widespread injustice. Further, the intention of Section 6A, i.e., to restrict illegal immigration post- 1971 has also not been given proper effect. Accordingly, we deem it fit to issue following directions:

1. In view of the conclusion drawn in paragraph 387, it is held that Section 6A of the Citizenship Act, 1955 falls within the bounds of the Constitution and is a valid piece of legislation;
2. As a necessary corollary thereto, (i) immigrants who entered the State of Assam prior to 1966 are deemed citizens; (ii) immigrants who entered between the cut off dates of 01.01.1966 and 25.03.1971 can seek citizenship subject to the eligibility conditions prescribed in Section 6A (3); and (iii) immigrants who entered the State of Assam on or after 25.03.1971 are not entitled to the protection conferred vide Section 6A and consequently, they are declared to be illegal immigrants. Accordingly, Section 6A has become redundant qua those immigrants who have entered the State of Assam on or after 25.03.1971;
3. The directions issued in Sarbananda Sonowal (supra) are required to be given effect to for the purpose of deporting the illegal immigrants falling in the category of direction (b) (iii) above;
4. The provisions of the Immigrants (Expulsion from Assam) Act, 1950 shall also be read into Section 6A and shall be effectively employed for the purpose of identification of illegal immigrants;
5. The statutory machinery and Tribunals tasked with the identification and detection of illegal immigrants or foreigners in Assam are inadequate and not proportionate to the requirement of giving time-bound effect to the legislative object of  Section  6A  read  with  the  Immigrants  (Expulsion  from Assam) Act, 1950, the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967; and
6. The implementation of immigration and citizenship legislations cannot be left to the mere wish and discretion of the authorities, necessitating constant monitoring by this Court.392. For this purpose, let this matter be placed before Hon’ble the Chief Justice of India for constituting a bench to monitor the implementation of the directions issued hereinabove.” 

Dissenting opinion of Justice Pardiwala focusing on cultural preservation in Assam: Justice Pardiwala’s dissenting opinion highlighted two primary purposes of Section 6A— to adopt a humanitarian approach for the people of Assam while simultaneously protecting the region’s culture. He emphasised the importance of considering the intentions of the parties involved when the Assam Accord was signed.

Justice Pardiwala stated that “Whether the afflux of time has bended the Section 6A, my line of reasoning is that piece of legislation may be valid at the time of enactment but by afflux of time, it has become temporarily flawed”

Furthermore, he provided that “the S.6A had two purposes – adopting a humanitarian approach for people of Assam and on the other hand protecting the culture of the Assam. I am of the view that intention of the parties must be kept in mind when they signed the Accord.”

Justice Pardiwala noted that there was no provision requiring voluntary declarations or a clear detection process. He elaborated on the workings of the Foreigners Tribunals, stating that the onus of proof lies with those suspected of being foreigners, specifically individuals identified as citizens between 1966 and 1971. He found it illogical for these individuals to wait for identification and argued that there was no valid reason preventing them from initiating the relevant provisions themselves. On the issue of temporal reasonableness, he criticised the lack of a time limit for Tribunals to complete their detection processes, suggesting that this could lead to adverse consequences for the state and leave citizens from the 1966-71 period in a state of limbo.

According to LiveLaw, Justice Pardiwala stated that “The onus is on the suspected foreigner person detected as citizen from 1966-71. It appears to me illogical that the person has to await identification, there is no plausible reason why he shouldn’t put into motion the provision. The clock only starts to tick once only detection is made by Tribunal and there is not period of time when the detection be completed by the Tribunal.”

He pointed out that Section 6A (3) was meant to serve the spirit of the Assam Accord but argued that its practical implementation countered this purpose. 

Justice Pardiwala stated “no person would voluntarily want to get detected as foreigner due to the subjectivity of the procedure. Seeing thus that working of the Section 6A (3) goes against the purpose of the provision, the provision counter-serves the object.”

Justice Pardiwala observed that the structure created by Section 6A, which established two categories of citizenship, could only be effective if a detection process was successfully conducted. However, since the detection was not feasible, he questioned the rationale for creating such categories. 

Justice Pardiwala stated that “the underline object of creating 2 categories under S.6A could only be achieved by a detection process, however, since the detection could not be achieved, I find no reason to believe the creation of 2 categories.”

He further asserted that the mechanism did not allow individuals from the 1966-71 category to voluntarily obtain citizenship, and suggested that while the provision may have been valid at the time of enactment, it had become redundant over time, thus failing the test of manifest arbitrariness.

The dissenting opinion noted that while the provision may have been valid at the time of its enactment, it has since become redundant due to the passage of time, forming a crucial part of the argument against manifest arbitrariness.

Additionally, the dissent highlights that, contrary to the view expressed by Justice Suryakant, the issue of illegal immigration cannot be overlooked in light of Section 6A. The dissent asserts that illegal immigration into Assam persists today, perpetuated by the provisions of Section 6A. It further clarifies the distinction between Sections 6 and 6A, emphasising that under Section 6, individuals from Pakistan who arrived during the Partition bore the responsibility to prove their citizenship, unlike the current situation under Section 6A.

Justice Pardiwala stated that “the ultimate view taken by my lord is that illegal immigration cannot be viewed due to Section 6A. However, the illegal immigration into Assam till today continued due to the influx under Section 6A. The difference between Section 6 and Section 6A was that under S.6 persons from Pakistan coming to India during Partition – onus was on them to prove citizenship and not the State.”

In conclusion, the dissenting opinion of Justice Pardiwala passed the following directions, holding however that there will be no retrospective application:

“Para 218

1. Immigrants who migrated before 01.01.1966 and were conferred deemed citizenship on the date of commencement of Section 6A(2), subject to fulfilment of all the conditions mentioned therein, shall remain unaffected.
2. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and have been granted citizenship after following the due procedure prescribed under Section 6A(3) shall remain unaffected.
3. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners and have registered themselves with the registering authority as per the prescribed rules, shall be deemed to be citizens of India for all purposes from the date of expiry of a period of ten years from the date on which they were detected as foreigners.
4. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners but have not registered themselves with the registering authority within the prescribed time limit as per the Citizenship Rules, 2009 will no longer be eligible for the benefit of citizenship.
5. Immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and whose applications are pending for adjudication before the Foreigners Tribunal, or who have preferred any appeal against any order of such tribunal which is pending before any court will continue to be governed by Section 6A(3) as it stood immediately prior to the pronouncement of this judgment, till their appeals are disposed of.
6. From the date of pronouncement of this judgment, all immigrants in the State of Assam shall be dealt with in accordance with the applicable laws and no benefit under Section 6A shall be available to any such immigrant. To be precise, if someone is apprehended as an illegal immigrant after the pronouncement of this judgment, Section 6A of the Citizenship Act will have no application.”

Background of the issue: Challenges to Section 6A, the NRC, and the Assam Accord

The roots of the current legal challenges to Section 6A of the Citizenship Act, 1955, trace back to the Assam Accord of 1985, an agreement reached between the Rajiv Gandhi-led central government and leaders of Assam. This agreement sought to address the long-standing issue of illegal immigration, particularly from Bangladesh, and its impact on Assam’s demographic and cultural identity.

The Assam Accord, which came after six years of protests led by the All Assam Students Union (AASU), included provisions for updating the National Register of Citizens (NRC) in Assam. A key part of the agreement, Paragraph 5, was codified in the Citizenship Act through the introduction of Section 6A. This section outlined a new procedure for granting Indian citizenship to migrants who entered Assam between January 1, 1966, and March 25, 1971. Those who migrated during this period could either become citizens immediately or after a ten-year waiting period.

However, in November 2012, the Assam Sanmilita Mahasangha challenged Section 6A in the Supreme Court, arguing that it created a separate pathway to citizenship for these migrants, thereby discriminating against other Indian citizens. This legal challenge questioned whether Section 6A violated the Constitution by granting preferential treatment to a specific group of migrants. Meanwhile, the NRC process remained inactive until 2013, when a Supreme Court Bench, comprising Justices R.F. Nariman and Ranjan Gogoi, ordered its update in Assam.

By December 2015, the Supreme Court referred the challenge to Section 6A to a five-judge Constitution Bench for further examination. On November 1, 2022, the Constitution Bench decided to hear the pleas challenging the constitutional validity of Section 6A, which was inserted through the 1985 amendment as part of the Assam Accord. The court set December 13, 2022, for directions in the case and instructed the parties to submit their written submissions, precedents, and documentary evidence.

The hearing on this matter finally began on December 5, 2023, before the Constitution Bench. Section 6A, which enables migrants from Bangladesh who arrived in Assam after January 1, 1966, but before March 25, 1971, to apply for Indian citizenship, remains at the centre of this legal battle. Several indigenous groups from Assam have opposed this provision, claiming it legitimises illegal immigration from Bangladesh, thus undermining the cultural, social, and demographic integrity of Assam.

Key contentions raised by petitioners against Section 6A of the Citizenship Act

The petitioners raised several key contentions against Section 6A of the Citizenship Act. First, they argued that the provision violates the essential fabric of the Constitution as outlined in the Preamble, particularly the principles of fraternity, citizenship, unity, and the integrity of India. They also contended that Section 6A infringes upon fundamental rights guaranteed under Articles 14 (equality), 21 (life and liberty), and 29 (protection of cultural rights) of the Constitution of India. Additionally, the petitioners claimed that the provision undermines the political rights of citizens as provided under Articles 325 and 326, which govern electoral rights.

Furthermore, they challenged the legislative competence behind Section 6A, asserting that it contradicts the constitutional cut-off date for determining citizenship and represents legislative overreach. The petitioners also argued that the provision erodes democratic values, federalism, and the rule of law, which are fundamental components of the basic structure of the Constitution.

Based on these arguments, the petitioners sought several remedies. They requested that the court declare Section 6A unconstitutional for violating Articles 14, 21, and 29. They also sought to have Rule 4A of the 2003 Rules and a 2013 notification declared ultra vires. Alternatively, they asked for a directive to the Union of India to develop a policy, in consultation with states, to proportionally resettle immigrants who arrived in Assam after January 1951 across the country. Additionally, they requested that the Union complete the fencing of the border and take steps to identify, detect, and deport illegal immigrants from Assam. Lastly, they called for the removal of encroachers from protected tribal lands under the Assam Lands and Revenue Regulations.

Brief on the hearings: Arguments for and against Section 6A of the Citizenship Act

During the hearings on the petitions challenging Section 6A of the Citizenship Act, both the union government and the Assam government argued in defence of the provision. They maintained that Section 6A was introduced to address a unique situation that arose following the Assam Accord of 1985, which aimed to quell violent protests in the state. The union government emphasised that Section 6A was part of a legislative policy arising from a political settlement based on relevant considerations of state and foreign policy. It further argued that it would be difficult for the court to establish judicially manageable standards to assess the constitutional validity of such a provision.

The union government also provided data during the hearings, stating that as of October 31, 2022, foreigner tribunals had identified 32,381 individuals as foreigners. Of these, 17,861 were granted Indian citizenship after registering with the Foreigners Regional Registration Office (FRRO). When asked by the court to provide information on the number of illegal immigrants who entered Assam after the March 25, 1971 cut-off date, the union admitted that an accurate figure was difficult to provide due to the clandestine nature of such entries. It acknowledged that the process of detecting, detaining, and deporting illegal foreign nationals remains complex and ongoing.

Solicitor General Tushar Mehta, representing the union government, highlighted the challenges posed by illegal immigration, noting that India’s porous borders allow for the secret entry of immigrants. However, this argument was countered by Jamait Ulema-i-Hind, an intervenor in the case, which contended that migration has always been a part of Assam’s history and that such migration can never be fully mapped.

On the opposing side, senior advocates Shyam Divan, KN Chaudhary, and Vijay Hansaria led the arguments against Section 6A. They argued that Parliament, by enacting this provision, had effectively amended the Constitution. They cited Article 6, which set a cut-off date of January 1950 for migrants from Pakistan who arrived after July 19, 1948, allowing them to become citizens. According to them, Section 6A shifted this cut-off to January 1966 for migrants from Bangladesh, further extending it to March 25, 1971, for residents of East Pakistan, thereby altering the original constitutional provisions.

Additionally, the petitioners submitted that the settlement of illegal immigrants in Assam had significantly altered the state’s demographic composition. As a result, these migrants had gained political dominance in 32 out of the 126 assembly constituencies in Assam.

Citizens for Justice and Peace’s intervention: Senior Advocate CU Singh’s arguments

In the ongoing case concerning Section 6A of the Citizenship Act, Citizens for Justice and Peace (CJP) also intervened, presenting their stance through Senior Advocate CU Singh on December 12. Singh argued that the petitioners were not merely advocating for their own rights but were attempting to strip away the rights that had been granted to others over several decades.

He emphasised that Section 6A, which governs the determination of foreigners under the Assam Accord, did not violate Article 14 of the Constitution, which guarantees equality before the law. Singh pointed out that granting citizenship to one specific group of people does not automatically constitute a violation of the rights of another group. Furthermore, he argued, those denied citizenship could raise claims of discrimination, but it was not for others to question why citizenship had been granted to those who qualified under Section 6A.

Singh made a compelling case, stating, “This isn’t about the petitioners asserting their own rights; they are seeking to revoke the rights that others have gained over the past 27 to 30 years—today, that’s a span of 40 years.” He further clarified, “Section 6A doesn’t breach Article 14; rather, it legalises the process of determining foreigners as per the Assam Accord. Just because you grant citizenship to one group doesn’t mean there’s an automatic violation. Only those who are denied citizenship can claim a violation, but can someone else challenge why it was given to another?”

This argument underscored CJP’s position that the petitioners’ demands would upend settled rights and protections afforded to individuals under the provisions of the Assam Accord.

The Advocate-on-Record was Senior Advocate Aparna Bhatt, and research assistance in filling the written statement and an additional note was given by Advocate Mrinmoy Dutta of the Gauhati High Court and Advocate Gautam Bhatia.

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While issuing the order after having heard the submission made by the petitioners, the bench stated that “Until the returnable date, we deem it appropriate to pass interim order prohibiting the enforcement of the impugned directives. In other words, the food sellers (including dhaba owners, restaurants, shops, fruits and vegetable sellers, hawkers, etc.) may be required to display the kind of food that they are selling to the Kanwariyas. But they must not be forced to display the names/identities of owners and also the employees, deployed in their respectively establishments. It is ordered accordingly.”

In addition to the interim stay, the Supreme Court also issued notice to states including Uttar Pradesh, Uttarakhand and Madhya Pradesh in three separate writ petitions that had been filed.

Brief about the notice of the state governments

The State governments issued the impugned directive amidst preparations for the annual Kanwar Yatra, a pilgrimage undertaken by Shiva devotees during the monsoon season known as Kanwarias or “Bhole.” In this pilgrimage, the devotees travel to key Hindu pilgrimage sites such as Haridwar, Gaumukh, and Gangotri in Uttarakhand and Ajgaibinath in Sultanganj, Bhagalpur, Bihar, to fetch holy water from the Ganges River. The yatra, traversing through cities including Muzaffarnagar and Ghaziabad, culminates in Delhi.

Initially described as ‘voluntary,’ the state governments’ directive has been widely endorsed by state officials and is now being rigorously enforced across all districts of Uttar Pradesh and Uttarakhand. Additionally, the Uttarakhand Government has issued an oral advisory aligning with this directive as of July 19/20, 2024.

In Uttar Pradesh, on July 18, 2024, the Senior Superintendent of Police, Muzaffarnagar, issued a directive requiring all eateries along the Kanwar route to display the owners’ names. This direction was extended statewide on July 19, 2024.

On July 20, in the face of the growing criticism, UP Chief Minister, Yogi Adityanath, had issues a statement sternly ordering for the enforcement of the said directive to ensure that names and identities of proprietors are displayed to avoid confusion among pilgrims during the Kanwar Yatra. an Uttar Pradesh government spokesperson had also confirmed that the chief minister had issued this directive to ensure that participants of the procession did not get disturbed during their pilgrimage. Additionally, the spokesperson had also provided that CM Yogi will be initiating action against those selling and promoting Halal-certification products. This comes after a directive was issued by the state in November 2023 wherein questions were raised against Halal certification made mandatory by certain organizations for the sale of different products, including vegetarian FMCG (fast growing consumer goods) products and cosmetics products, which don’t require any Halal certification.

On July 21, the civic body in Madhya Pradesh’s Ujjain also directed all shops in its jurisdiction to display their owners’ names and mobile numbers to ensure “customer safety”.

Details of the petitions filed in the Supreme Court can be accessed here. 

Submissions made by the parties during the Court Proceedings

No rationale behind the order: Senior Advocate Dr Abhishek Manu Singhvi made submissions before the Court on behalf of the petitioners. Questions were raised by Singhvi regarding the “rational nexus” behind the directives, by stating that no purpose was being served by the said directives. Singhvi emphasized that the directives have been issued in a clever manner so as to escape the scrutiny of Article 13 of the Indian Constitution. He argued that they fail to comply with the proportionality test, as there is no rational nexus with the aim sought to be achieved, and also briefly spoke about the violation of informational privacy through the directives.

Forced enforcement by police, creation of religious divides: He pointed out that the situation is worrisome as police authorities have taken upon themselves to create a religious divide, by forcefully enforcing these directives on the ground. Singhvi further claimed that the directives would virtually identify the owners and subject them to economic boycotts. Additionally, Singhvi highlighted that even in case the orders were to remain “voluntary”, which they had been camouflaged as, the persons who would not put out the information would be identified and then face exclusion. The counsel also mentioned the fines that have been levied by the authorities by the Madhya Pradesh government for those who will not abide by the directives. Senior Advocate CU Singh, on behalf of petitioners, apprised on the basis of news reports that the directives contemplate fines of Rs. 2000 and Rs. 5000 in case of non-compliance. Singh emphasised that added that although these directives may seem to be voluntary directives, a Chief Minister has issued a statement that the directives would apply in general to all districts. Furthermore, Senior Advocate Huzefa Ahmadi, also representing the petitioners, told the court that the directives may be considered as formal orders because they are issued as public notice under the stamp of the Muzaffarnagar police.

When the bench asked Singhvi whether the impugned directives were formal orders or part of press statement, he clarified that earlier, statements were given in the press, but later, the authorities strictly started enforcing them as even the UP Chief Minister Yogi Adityanath endorsed them.

Domino effect: Referring to other states, Singhvi added that there is possibility of a “domino effect” taking place. Singhvi elaborated how, initially, the directives were passed by Muzaffarnagar police. And now, such similar directives have been issued by Aligarh Municipal Corporation and in other districts as well, leading to domino effect in other States.

Against principles of the Constitution of India: It was further added that the directives go against Article 15(1) of the Indian Constitution, which prohibits identity-based discrimination, as the direction has the potential for the Yatris to restrict themselves from going to shops belonging to the Dalit community. Singh also assailed the fact that many people from minority communities have reportedly lost their jobs leading to the violation of Article 19(1)(g) of the Indian Constitution.

Additionally, it was submitted that the directives impinge upon the preambular promise of secularism and fraternity. Senior counsel Ahmedi also contended that the directives violate Article 17 of the Indian Constitution.

No legal backing regarding display of names, contact details: Drawing the court’s attention to the fact that Kanwar Yatra has been happening in the country for decades, Singhvi beseeched the court to note that people of all religions-Muslims, Christians and Buddhist- have been helping Kanwariyas. As for the issue of vegetarian and non-vegetarian food, he pointed out that there are existing laws which prescribe strict punishment for serving non-vegetarian food to those who prefer vegetarian. 

Pertinently, Singhvi also provided that the Food Safety Standard (Labelling and Display) Regulations, 2020 under the Food Safety and Standards Act, 2006 does not require owners of eateries to display their names, or that of their workers, outside the shops. It was contended that the legislation only requires displaying of two things with respect to food items, that is, calorie component and nature of the food (vegetarian or non-vegetarian).

Singhvi highlighted Regulation 9 of the 2020 Regulations, which states that food service establishments having central licenses or outlets at 10 or more locations shall mention the calorific value against the food items displayed on the menu cards or boards or booklets. Along with this, the logo of vegetarian or non-vegetarian food should also be mentioned. However, these Regulations are not applicable to stalls and eateries that do not have central license or outlets.Taking note of the threshold under 2020 Regulations, Singhvi urged that the court may consider these conditions as general conditions that the law prescribes.

The proceedings also involved mentioning of Section 31 of the 2006 Act, which relates to licensing and registration of food business. Clause 2 of Section 31 clarifies that the requirement of license is not applicable to “petty manufacturer who himself manufactures or sells any article of food or a petty retailer, hawker, itinerant vendor or a temporary stall holder or small scale or cottage or such other industries relating to food business or tiny food business operator”.

Order of the Court

During the hearing. based on the submissions made by the legal representatives of the petitioners, Justice Roy had emphasised that there were three dimensions to the directives, that are, safety, standard and secularism, and all of them were equally important.

In the interim order issued by the Bench, the Court observed that while undertaking the Kanwar Yatra, the devotees abstain from consuming certain food items. 

“The above would suggest that the Kanwariyas in the holy month of Shravan while undertaking the journey to collect water from the river Ganges, do abstain from certain food items in their diet. This can be understood as abstaining from consuming any nonvegetarian food or in the event of those who follow strict vegatarianism, abstaining from consuming even onion and garlic.” (Para 3)

Based on the following observation, the Court pointed to impugned directive requiring the show owners to publish their names and details, along with that of their staff members, to not serve any purpose when it comes to only providing vegetarian food to the Kanwariyas. The Court held that any order ensuring only vegetarian food being served to the devotees as well as maintenance of hygiene would have been permissible by law, but the authorities cannot usurp power under the said disguise.

“It is permissible for the authorities to ensure that the Kanwariyas are served vegetarian food conforming to the preferences and also ensure hygienic standards. In furtherance to this, the competent authority may perhaps issue orders under the Food Safety and Standards Act, 2006 and the Street Vendors Act, 2014. However, the legal powers vested on the competent authority cannot be usurped by the Police, without legal foundation.” (Para 8)

After issuing notices to the standing counsel for the state of Uttar Pradesh, Uttarakhand, S Madhya Pradesh and the government of NCT of Delhi, the bench stayed the directives issued by the state authorities. The Bench asked the food sellers to display the kind of food that is being sold to the Kanwariyas, while deeming it appropriate to restrict any display of the name/identity of the owners and also the employees.

“Until the returnable date, we deem it appropriate to pass interim order prohibiting the enforcement of the impugned directives. In other words, the food sellers (including dhaba owners, restaurants, foods and vegetable sellers, hawkers, etc) may be required to display the kind of food that they are serving to the Kanwariyas. But they must not be forced to display the name/identity of the owners and also the employees, deployed in their respective establishments. It is ordered accordingly.” (Para 13)

The complete order can be read as follows:

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New Delhi: Bilkis Bano says she smiled for the first time in a year and a half today, she said in a letter thanking the Supreme Court for its judgement undoing the remission given to those who raped her and murdered her family members during the 2002 Gujarat riots.

“Today is truly the New Year for me. I have wept tears of relief. I have smiled for the first time in over a year and half. I have hugged my children,” Bano said in a letter issued through her lawyer Shobha Gupta.

A two-judge division bench of the apex court, headed by Justice BV Nagarathna, said on Monday (January 8) that the Gujarat government did not have the power to grant premature release to the 11 convicts who gang-raped a pregnant Bano and her family members, and also murdered 14 of her relatives.

The convicts had been, in 2008, sentenced to life in prison. The conviction orders had been confirmed even enhanced by the Bombay High Court and then the Supreme Court.

“It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again. This is what justice feels like,” Bano’s letter continued to state.

” I thank the honourable Supreme Court of India for giving me, my children and women everywhere, this vindication and hope in the promise of equal justice for all.”

She also thanked her husband for children for staying by her side and her friends for “[holding] her hand at each difficult turn”.

Bilkis Bano had special word of thanks for her lawyer, Shobha Gupta, saying she “never allowed me to lose faith in the idea of justice”.

“A year and half ago, on August 15, 2022, when those who had destroyed my family and terrorised my very existence, were given an early release, I simply collapsed,” she said.

“I felt I had exhausted my reservoir of courage. Until a million solidarities came my way.”

Also, thousands of ordinary people moved the Supreme Court, wrote appeals and open letters in solidarity with her, Bano said, saying they had given every woman in India the will to “rescue the idea of justice”.

In a brazen defence of it’s actions, the Gujarat government said the decision to remit the convicts’ sentence was arrived at by a panel it had set up, comprising officials and ‘social workers’, all of whom were either members of the ruling BJP or were connected with it.

On Monday, January 8, a division bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan said the Gujarat government “acted in complicity with the convicts” and noted that if the convicts can “circumvent the consequences of their conviction, peace and tranquillity in the society will be reduced to a chimaera.”

Bano said the apex court’s decision affirmed her belief in the rule of law.

“Even as I absorb the full meaning of this verdict for my own life, and for my children’s lives, the dua that emerges from my heart today is simple – the rule of law, above all else and equality before law, for all,” she said.

Her full statement, which was also issued in Gujarat and Hindi, may be read here:

The post Today, I Can Breathe Again: Bilkis Bano on landmark Supreme Court judgement appeared first on SabrangIndia.

The committee comprises three retired women who were judges at high courts. It is headed by former Jammu and Kashmir high court Chief Justice Gita Mittal and also has Justices Shalini Phansalkar Joshi and Asha Menon. So far, this committee has submitted three reports to the Supreme Court.

LiveLaw has reported that a Supreme Court bench of CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra has directed for the reports to be circulated to the counsels and asked them to respond to the proposed suggestions.

“The first of the three reports submitted by the committee highlights the loss of essential documentation of the residents of Manipur who have been dishoused,” CJI Chandrachud said after looking at the report, according to The Hindu.

Besides, the committee has suggested that a nodal officer be appointed to head the process of reconstructing these documents.

Interestingly, among documents lost are Aadhaar cards, which are tied to welfare scheme benefits and also bank accounts, the CJI observed.

The second report has highlighted that the compensation scheme for victims in Manipur needs to be improved and updated with the NALSA scheme in mind, reports LiveLaw. The Manipur compensation scheme keeps victims who have benefitted from other schemes out of the ambit of the scheme.

The third report, according to LiveLaw, proposed the appointment of domain experts for administrative directions. The bench noted also that certain procedural directions were required in the matter to pay for expenses including infrastructure. It asked advocate Vrinda Grover to collate relevant suggestions and share them with the Advocate General of Manipur later this week.

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The Supreme Court bench comprising Chief Justice of India DY Chandrachud and Justices PS Narasimha and Manoj Misra provided that until and unless the rules of self-regulation are made more stringent, television networks will not be required to follow them. Notably, the Bench was hearing an appeal filed by News Broadcasters Association (NBA) against a Bombay High Court verdict that contained critical observations about the lack of teeth in self-regulation mechanism for TV channels.

“You say TV channels practice self-restraint. I don’t know how many in court would agree with you. Everybody went berserk whether it was a murder etc. You pre-empt the investigation. What is the fine you impose? ₹1 lakh! How much does a channel earn in one day. Unless you make the rules stringent no TV channel has no compulsion to comply. For any violation if there is a lakh penalty then what stops them?” CJI Chandrachud had stated, as reported by LiveLaw.

The bench then said that they will be working on strengthening the self-regulation framework now so that channels are required to be bound by them. The Court, therefore, sought suggestions on the present penalty of ₹1 lakh which is imposed on news channels for violation of NBA guidelines.

“We will strengthen the framework. We have seen the uplinking and downlinking guidelines. We will tweak the Bombay High Court judgment. But we will strengthen the regulations now,” the Court remarked as reported in Bar&Bench.

Need for effective rules of self-regulation:

It is essential to note that during the arguments, Datar kept vehemently pushing for self-regulation of TV channels, maintaining that there cannot and should not be any control by the state.

“We are against what Bombay High Court observed. Please see the downlinking guidelines. If we pass five adverse orders against a channel then their license will not be renewed. High Court says the self-regulatory mechanism is not controlled by the statutory body and the Nariman committee especially sought the same thing. We are aggrieved by the adverse remarks. Like we failed the hopes of citizens etc should not be held against me.”

On this, the Bench had underlined that such self-regulation should be effective and needs to have a deterrent impact on the violators.

“While we appreciate there has to be self-regulation but the self-regulation has to be effective. Having a former Supreme Court judge is not enough. They are also bound by the regulations. How do you give bite to your regulations to make it more effective? The penalty should be a dislodgement fee sorts,” Bar and Bench reported.

On the issue of fine of Rs. 1 lakh, the bench questioned when the same was devised. In response to this, Data provided that it was set in the year 2008.

To this, the CJI replied, “So from last 15 years you kept the (amount) same. The fine should be in proportion with the profiles earned by the channel from that show. The self-regulatory mechanism has to be effective. You virtually pre-empt the criminal investigation. We agree that government interference should not be there…” as reported by Bar&Bench.

Directions of the Court:

The Court proceeded to issue notice on the plea and also sought suggestions on the present penalty which is imposed on news channels for violation of NBA guidelines.

“Let counter affidavit be filed in three weeks. The suggestions to be placed before the court will be also on the aspect of penalty. The penalty of ₹1 lakh was fixed in 2008 and has not been changed since then,” the Court said in its order, as reported by LiveLaw.

In further to this, the Court also directed Senior Counsel Arvind Datar, appearing for the NBA, to seek suggestions from Justices AK Sikri and RV Raveendran on self-regulation of TV channels.

“Mr Datar will seek suggestions from Justices Sikri and Raveendran so that it can be submitted before the court. Centre to file the counter to this,” the bench directed.

As regards self-regulation, the Court said that the same needs to be strengthened and the Court will examine the same as well.

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In a huge relief to non-government organisations working in the field of human rights and social welfare, the Supreme Court has ruled that as long as they are not affiliated to any political party, these organisations are not barred from seeking funding from international sources in terms of the Foreign Contribution (Regulation) Act (FCRA) 2010 and Rules made thereunder.

According to section 3 (1) (f) of the FCRA 2010, “No foreign contribution shall be accepted by any organisation of a political nature.” Rule 3 of FCRA Rules 2011 laid down norms for declaring an organization. Their validity was challenged by the petitioner Indian Social Action Forum (INSAF) in the SC. Rules (v) and (vi) were found to be particularly problematic by NGOs as they state that: “The Central Government may specify any organisation as organisation of political nature on one or more of the following grounds:-

(v) organisation of farmers, workers, students, youth based on caste, community, religion, language or otherwise, which is not directly aligned to any political party, but whose objectives, as stated in the Memorandum of Association, or activities gathered through other material evidence, include steps towards advancement of political interests of such groups;

(vi) any organisation, by whatever name called, which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public causes.”

This was hugely problematic as NGOs often express dissent by organizing public gatherings and peaceful protests. Moreover, it gave the central government a wide range of ambiguous rights. In fact, many NGOs have alleged harassment at the hands of the government. Vindictive regimes are known to have withdrawn FCRA licenses of organisations that they perceive as a threat to their agenda.

Now, a division bench comprising Justices L Nageshwar Rao and Deepak Gupta, has read down rule 3 (v) and 3 (vi). The SC said in its judgment, “A balance has to be drawn between the object that is sought to be achieved by the legislation and the rights of the voluntary organisations to have access to foreign funds.” It added, “… those voluntary organisations which have absolutely no connection with either party politics or active politics cannot be denied access to foreign contributions.”

The judgment further said, “Support to public causes by resorting to legitimate means of dissent like bandh, hartal etc. cannot deprive an organisation of its legitimate right of receiving foreign contribution. It is clear from the provision itself that bandh, hartal, rasta roko etc., are treated as common methods of political action. Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organisation of a political nature.”

The entire judgment may be read here:

Sabrang FCRA case

As mentioned earlier, vindictive regimes are known to have penalised organisations that threaten their agenda. Sabrang Trust has been in the eye of the storm in a similar case. Co-founded by journalists and activists Teesta Setalvad and Javed Anand, Sabrang has been at the forefront of exposing divisive politics and communal agenda of the right-wing supremacist organisations as well as their members and sympathisers in the ruling regime.

While Sabrang’s previous publication Communalism Combat exposed the ugly truth behind communal riots in Mumbai, and bomb blasts in Malegaon among other instances of targeted violence, Setalvad and Anand’s work has not been limited to just the printed word.

Forged in the fires that ravaged Gujarat in the aftermath of the Godhra train burning incident in February 2002, Citizens for Justice and Peace, a humanitarian organisation, spearheaded the quest for justice for riot affected people by holding the top brass of the Gujarat state government, administration and police accountable. Teesta Setalvad is the secretary of CJP and has spent years helping survivors of the violence get justice in the courts and beyond.

A vindictive regime started hounding Setalvad and Anand, and when they failed to arrest the duo on trumped up charges, they launched a witch hunt using provisions of the FCRA 2010. In 2015, writing to the MHA, now under the same political dispensation that was in power in Gujarat during the genocidal carnage of 2002, the Gujarat Police goaded them into an investigation under the Foreign Contribution Regulation Act (FCRA) against all three organisations run by the couple, viz. Sabrang Trust, Citizens for Justice and Peace (CJP) and Sabrang Communications.

For one whole week in June 2015, all the aforementioned organisations cooperated fully with the MHA, answered all queries and submitted all documents for scrutiny. The organisations also pointed out the malicious nature of the various cases foisted upon them. They also pointed out linkages between the powerful perpetrators of the riots and the chief complainant in each case, a disgruntled former employee.

Within weeks of this MHA visit, there were rumours in the media, that despite satisfying all requirements of investigation agencies, another case could be initiated by the CBI against one of the organisations. Setalvad and Anand wrote to the CBI offering full cooperation. Despite this the CBI conducted raids on the properties of the organisations.

Both, Setalvad and Anand have been forced to run from pillar to post to seek anticipatory bail multiple times, despite fully cooperating with police investigations and making all documents available for scrutiny on each occasion.

On the subject of the landmark judgment, CJP secretary Teesta Setalvad said,

“The judgement of the Supreme Court is a welcome interpretation of a grossly misused law. Today, political parties have given themselves complete impunity from financial scrutiny and media stooges vilify both rights groups and people’s movements.” 

Related:

Countering All Allegations

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Activist Harsh Mander came in for a rude shock when the Supreme Court refused to proceed with hearing his petition to file FIRs in hate speech cases, until he clarified if he had made statements against the court.

NDTV reported Chief Justice SA Bobde as saying, “You made statements against the Supreme Court. We will not hear you now… If this is what Harsh Mander feels about the Supreme Court, then we will have to decide on that first.”

Mander had allegedly made the remarks during a protest against the Citizenship Amendment Act (CAA) in January. A video of the speech had gone viral. But his counsel Karuna Nundy denied the allegations. The court has now sought transcripts of the speech.

Appearing for the government Solicitor General Tushar Mehta dubbed the speech “derogatory and instigating”. He also reminded the court about how former Chief Justice Ranjan Gogoi had dropped Mander’s name in the petition against detention camps in Assam. Mehta also tried to railroad another petition filed by 10 people affected by the Delhi violence. He claimed that senior counsel Colin Gonsalves who had appeared for Mander in Delhi HC, is now appearing for the 10 riot-affected people, alleging that their case was filed at Mander’s behest.

Mander has been a thorn in the regime’s side for many years. He not only spearheaded a petition against the inhuman conditions in Assam’s infamous detention camps, he has also filed a petition in the Delhi High Court to seek directions to the police to file FIRs against BJP leaders Kapil Mishra, Anurag Thakur and Parvesh Verma. He is also one of the petitioners against the CAA along with Aruna Roy, Nikhil De, Irfan Habib and many others.

The move against Mander is not new, as other human rights defenders often face similar challenges. In January 2011, CJP secretary Teesta Setalvad had faced a similar ordeal when the SC had expressed displeasure over her forwarding complaints pertaining to the Gujarat riot cases to the Office of the High Commissioner for Human Rights (OHCHR). The court had said that by forwarding the complaints pertaining to Gujarat riot cases to the UN, Teesta Setalvad had shown she does not have confidence in the SC. The matter was put to rest when it was pointed out to the court that the complaints had been sent to the SIT and had merely been forwarded to the OHCHR which keeps track of human rights violations, and that it was mere reporting and there was no prayer for action.

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The Supreme Court has, for now, refused to stay the Citizenship Amendment Act (CAA) as it hears close to 140 petitions against the legislation that is seen as discriminatory and unconstitutional by secular and democratic forces across the country. Some parties also challenged the National Population Register (NPR), given how it is intertwined with CAA on account of fundamental questions about the concept of citizenship being at the heart of both, and its adverse impact on minorities not covered under CAA.

A three-judge bench comprising Chief Justice SA Bobde, Justice Abdul Nazeer and Justice Sanjiv Khanna was hearing a batch of petitions against the CAA on Wednesday. Some parties sought temporary postponement of the implementation of the legislation during the pendency of the hearings.

Senior advocate AM Singhvi proposed the formation of a Constitution Bench to hear the petitions, and idea also supported by Kapil Sibal who was also appearing for a petitioner. Sibal also prayed that the process of updating the NPR that begins in April be stayed for three months, a demand also supported by another senior advocate KV Vishwanath. But the court did not grant any such relief.

This means, that the process of updating of the National Population Register will begin as scheduled from April 1. This is what several civil society groups including Citizens for Justice and Peace (CJP) have been raising concerns about, given how the CAA and NPR are virtually inextricable. While the CAA fundamentally alters the idea of citizenship by linking it to religion, the NPR places a greater burden of proof of citizenship on unlettered and marginalized sections of society, many of whom practice faiths that are not covered by the CAA, thereby leaving them vulnerable as they do not have the CAA to fall back upon in case their citizenship is questioned.

CJP secreatry Teesta Setalvad who has been travelling across India to generate awareness about the fundamental flaws in the CAA says, “For over a month since an amendment to the Citizenship Act was hurriedly passed in Parliament, spontaneous protests have erupted across India because these fundamental changes to the law have been correctly seen to be not just plain discriminatory but at serious odds with the fundamentals of equality and non discrimination which are core to Indian nationhood and citizenship.” 

Explaining how CAA and NPR would deal twin body-blows to the ideas of secularism, democracy, citizenship and even nationhood, Setalvad says, “CAA 2019 came on the back of an executive decision to club the 2020 census procedure with an NPR that for the first time has citizenship related questions (birth place and date of parents) etc. There is a fear of disenfranchisement of hundreds of thousands of Indians if documents are held to be the test of citizenship. Much hope was vested in the SC hearings today.

Unfortunately by giving the government time, by shifting the hearings to more than a month and refusing to stay the application of the new law, the Court has disappointed millions. Indians will have to keep the movement alive in creative ways.” 

The court also decided to hear petitions from Assam and Tripura separately. On December 18, the SC had issued notice to the center on 60 anti-CAA petitions that had been filed till then. Now, 80 more petitions have been filed since then and the center sought time to respond to them.

Accordingly, the CJI directed that notice be issued on all matters and gave the center four weeks to reply. According to Live Law, the court said, “After 4 weeks we will list it for orders. Give us a list of all the categories of matters. Small matters we can hear in the chamber”.

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Image Courtesy: clipper28.com

The Supreme Court (SC) on Friday restrained the Chhattisgarh Police from ‘unduly harassing’ senior IPS officer Mukesh Gupta. He had earlier accused the police and the administration under Chief Minister (CM) Bhupesh Baghel of ‘hounding’ him and his family, The Indian Express reported.

The SC also granted him protection from arrest in the cases lodged against him.

Mukesh Gupta, along with two other IPS officers from Chhattisgarh was suspended after the Economic Offences Wing (EOW) of the police headed by S R P Kalluri accused him of criminal conspiracy and illegal phone tapping in the INR 36,000 crore Civil Supplies Corporation scam.

At the time, Gupta was booked under sections 193 (false evidence), 201 (causing disappearance of evidence of offence, or giving false information to screen offender), 466 (forgery), 471 (Using as genuine a forged), 120B (criminal conspiracy) and other relevant sections of IPC and under provisions of Indian Telegraph Act.

A bench of Justices Arun Mishra and S Ravindra Bhat told the state police to cease tapping the phones of Gupta’s two daughters, as was alleged by him. Advocate Mahesh Jethmalani, appearing for Gupta, said that the police was illegally intercepting the calls of his daughters in connection with the unnatural death of a family friend in 2001.

Jethmalani argued that Gupta was a key official in unearthing the Civil Supplies Corporation scam in which the NagrikAapurti Nigam (NAN) was involved and also made key revelations in the Alok Agrawal case.

Mukul Rohatgi appearing for the state, denied any knowledge of the phone tapping charges, but said that he was willing to give an ‘undertaking’ that there would be no tapping henceforth.

The SC ordered, “Let the phone tapping be stopped forthwith, as assured by Mr Mukul Rohatgi, learned senior counsel appearing for the respondent(s). There shall be no further phone tapping.” It added that the “interim order shall continue to operate until further orders and the petitioner is not to be harassed. He shall not be arrested also.”

In an interim order on September 2, the court had stayed three FIRs filed by the state against Gupta and issued a notice to the state and Baghel.

The next hearing in the case is on November 4.

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Breaking: SC admits all Intervention Applications defending FRA, 2006
 

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On Tuesday, the SC partly allowed a plea by the center to review the judgment with respect to dilution of provisions related to automatic arrest under the act for perpetrating crimes against people belonging to Scheduled Castes and Scheduled Tribes.

The court observed that the struggle for equality and civil rights for far from over for members of SC/ST communities. The court noted, “They are still discriminated against. Untouchability has not vanished and those involved in scavenging have still not been provided modern facilities.”

In its order the court today observed, “If they are not to be given special protection, they are not to be further put in a disadvantageous position. The implementation of the condition may discourage and desist them even to approach the Police and would cast a shadow of doubt on all members of the Scheduled Castes and Scheduled Tribes which   cannot   be   said   to   be   constitutionally envisaged.”
 
The court further observed, “It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold, approval of appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor trial can be completed as envisaged. Act of 1989 delay would be adding to the further plight of the downtrodden class.”
 
The March 20, 2018 judgement had sparked outrage as it prohibited immediate arrests under the act siting misuse of the provisions against public servants. On Tuesday, the SC recalled directions which made prior sanction mandatory for arrest of public servants and private persons. A preliminary inquiry will no longer be required for registering an FIR.

The entire judgement may be read here:

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