Rest Assured, HM’s Recovery Is Assured

by Shobha Aggarwal 

HM has been reportedly readmitted to the hospital for post-COVID care (and continues to work from there).  Even as the whole country is praying for his speedy recovery, Sarkari facts and statements issued ad infinitum should give him a reason to cheer viz:

• The recovery rate for COVID-19 has improved and reached 73.64 % because of ‘active intervention treatment strategies’.

• The mortality rate has decreased to 1.91%. This is apparently the lowest in the whole world.

• India has one of the lowest rate of death of elected representatives due to COVID-19. (Cf. Iran where about 2 dozen legislators had died.)

• India has the plasma therapy in place which can increase life span albeit for a few days.

• Indian Government has played a pioneering role by advocating HCQ and dispatching it to half the world as a curative cum preventive therapy.

• Anti-AIDS drugs have been given a green signal by the Drug Controller of India. Indian health authorities have stocked a huge amount.

• Over 50,000 ventilators are available in India right now; PM Cares Fund has contributed Rs. 2000 crore for this life saving gadget. Even as the wag says: ventilators not needed in mild, moderate cases; are useless in severe cases.

• India reached the figure of 50,000 deaths in the longest period of time i.e. in 156 days. (Cf. USA reached the figure in 23 days.)

• More and more people are testing positive but that is because testing has been ramped up due to the sustained campaign for improvement of health infrastructure.

• The number of laboratories testing for COVID-19 – both private and government – have reached a record 1400 plus. Courtesy: Union Government, State Governments & UT administrators.

• India has recorded the highest number of tests ever conducted in a day viz 9 lakhs in 24 hours.

• India has recorded the highest number of patients being discharged from the hospital viz 57381 in one single day.

• While India has third highest number of cases in the world it needs to be emphasized that this is only on account of its huge population.

• Even as the concerned governments are doing their best, the PM said in his ‘mann ki baat’, that some people are seen to be off their guards risking infection. Credit to governments; blame to ‘we the people’.

• The policy of WFH (work from home) includes WFH (work from hospital).

• COVID-19 Vaccine is around the corner; just as AIDS vaccine has been around the corner – for the last four decades!

Inanity of Sarkari statistics notwithstanding, rest assured, given India’s stellar role as a global leader in the fight against COVID-19 pandemic HM’s recovery is assured.

Shobha Aggarwal is a member of PIL Watch Group.

Email: pilwatchgroup@gmail.com

First published: https://countercurrents.org/2020/08/rest-assured-hms-recovery-is-assured/

In Defence Of Committees For Defence of Political Prisoners

 by Dr P S Sahni 

After Prof. G. N. Saibaba’s arrest a 17-person Committee for the Defence and Release of Saibaba was constituted to expedite his bail and also that all his legal and constitutional rights stay protected. With the arrest of Prof. Hany Babu, member of this Committee on 28 July, 2020 and the subsequent raid on 2 August, 2020 at his house by 12 officials of National Investigative Agency (NIA) along with Delhi Police, a search was conducted for documents pertaining to this Committee. The message was loud and clear that witch hunting of all those associated with the Committee and those who funded the Committee would ensue. Apparently the regime is not comfortable with the idea of legal aid being provided to the political prisoners.

Healthy political tradition for over a century

In the last one hundred years a healthy political tradition has been set up whereby such committees have been formed and have been allowed to function unhindered both by the colonial rulers as well as by Indira Gandhi during the Emergency era.

• During the Emergency era (1975-77), George Fernandes and 24 others were arrested in the Baroda Dynamite Case. A defence committee was formed which included lawyer V.M. Tarkunde and Acharya Kripalani. The regime in power would recollect that George – a onetime socialist – worked in Vajpayee government as a Union Defence Minister!

• “On 15 August 1975 The Times of London carried a full page advertisement taken out by the ‘Free JP Campaign’. The ad had been paid for by individuals: the first person to contribute being Bishop Trevor Huddles-ton, the last Dame Peggy Ashcroft. The other signatories to the appeal included such long-standing friends of India as the socialist Fenner Brockway, the economist E. F. Schumacher and the political scientist W. H. Morris-Jones, as well as celebrities with no specific connection to India, such as the actress Glenda Jackson, the historian A. J. P. Taylor and the critic Kenneth Tynan.”

• Formed in 1929 the Bhagat Singh Defence Committee to provide legal and financial aid to the revolutionaries had the Indian National Congress at the forefront. The Committee asked the public to donate funds. While Jawaharlal Nehru was not a member of this committee, he did go and meet Bhagat Singh and his comrades in the prison.

• The Kakori Conspiracy Case (or Kakori train robbery) that took place on  9 August, 1925 was conceived by Ram Prasad Bismil and Ashfaqullah Khan.  Govind Ballabh Pant provided the legal defence for the arrested revolutionaries. Those who came out in support included Motilal Nehru, Madan Mohan Malviya, Muhammad Ali Jinnah, Lala Lajpat Rai, Jawaharlal Nehru, Ganesh Shankar Vidyarthi, Shiv Prasad Gupta, Shri Prakash and Acharya Narendra Dev.

Jawaharlal Nehru with the members of INA Defence Committee, 1945 Photo by Kulwant Roy

• In 1945, the Indian National Congress established the INA Defence Committee – which included famous lawyers of the time Bhulabhai Desai, Asaf Ali, Jawaharlal Nehru – to defend Indian National Army mutineers who were to be charged during the trials.

May a thousand committees for the defence/release of political prisoners bloom. Better if the regimes become pro-people and there is no need for such committees. However, the most relevant question has been raised by Prof. Chaman Lal, formerly of JNU, who is known for his work on Bhagat Singh: “PM Modi should throw some light, what the Sangh leaders were doing when the young revolutionaries were hanged.”

Dr. P. S. Sahni is a member of PIL Watch Group. Email: pilwatchgroup@gmail.com

First published: https://countercurrents.org/2020/08/in-defence-of-committees-for-defence-of-political-prisoners/

Why Justice S. K. Kaul Must Recuse from Hearing Kashmir Petitions

by Shobha Aggarwalk

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One year has passed since the right wing Hindutva forces in power at the centre – which thrives on ruling by shock and awe – betrayed the people of Kashmir. In the aftermath of the events on 5 August, 2019 and with the entire valley locked up and all the leaders arrested (many are still under detention) the only hope left at that time was from the judiciary. Soon many petitions were filed in the Supreme Court (SC) which inter alia included several habeas corpus petitions, challenge to curbs on media freedom as well as challenge to the constitutionality of the  Presidential Orders  C.O. 272 & C.O. 273 (POs) and The Jammu and Kashmir (Reorganisation) Act of 2019 (the 2019 Act).

Justice so far has eluded the people of Kashmir with the courts and other statutory bodies working in tandem with the Central Govt. The judiciary is openly and without pretence deferring to the wisdom of the executive. Supreme Court has delved in detail on diverse issues relating to fundamental rights, media curbs etc in its orders without giving any tangible relief to the people of Kashmir. The near total alienation of the people of Kashmir has been lost sight of.

Beyond Kafkaesque-ism

In the cases relating to the freedom of the press three judges of the SC passed a 130-paged judgement on 10 January, 2020. The judgement was passed after the publication of newspapers had resumed and only lays down future guidelines. The SC could not even get the government to produce all the orders passed curbing the freedom of the press. Even though it held that the government’s stated “difficulty in producing all the orders before this Court … is not a valid ground to refuse production of orders before the Court”. It did not castigate the government on non-production of orders thus allowing it to erode the authority of the SC. The presumption when the documents are not produced before a court is the non-existence of such documents. But the SC does not presume it because if it did then the inevitable conclusion would follow that verbal orders were being given by those in authority to put curbs on the fundamental rights of the people of J & K in violation of all laws. The government was saved this embarrassment. The SC held:

“As all the orders have not been placed before this Court and there is no clarity as to which orders are in operation and which have already been withdrawn, as well as the apprehension raised in relation to the possibility of public order situations, we have accordingly moulded the relief in the operative portion.”

In Kafka’s ‘The Trial’ Josef K., protagonist never gets to see the charges framed against him even up to the point of being executed! In the Kashmir petition – forget the petitioners – even the judges never got to see all the orders of the government about which the judgement was passed!! In good old days (2014 to 2019) Union of India used to hand over ‘relevant’ information to judges in sealed cover; that era is now passé!!!

The continuation of 4G mobile internet ban in Jammu and Kashmir (J & K) illustrates the academic nature of the 10 January, 2020 judgement. Even now the SC is not willing to adjudicate the issue and as per the submissions made by the government in SC a special committee comprising of the chief secretary of the J & K administration, Union home secretary and secretary, Department of Telecommunications, Government of India has decided against restoration of 4G mobile internet in J & K. Can the SC delegate its judicial powers to a committee of bureaucrats? It is complete abdication of its Constitutional duty.

PIL furthering the Hindutva agenda

Between 2014 and 2018 about nine petitions were filed in the SC challenging variously Articles 370 and 35-A and special status accorded to J & K then. All these petitions filed as public interest litigation were listed in SC about thirty times between August 2014 and February 2019. Needless to say that these petitions furthered the Central Government’s agenda on J & K. One such petition was initially filed in the High Court of Delhi by a then recent law graduate with her lawyer-father arguing the petition. Mercifully the Delhi High Court dismissed the petition on 11 April, 2017. But lo and behold SC admitted the appeal against the Delhi High Court order. I attended one of the hearings in the said case in the Delhi High Court. Looking at the young women petitioner I had wondered if she has any idea whatsoever about the aspirations of the people of Kashmir? What right does she have to file such a petition? How can the constitutionality of Article 370 be challenged in a PIL? But unfortunately SC did not raise any of these fundamental questions and all these petitions filed before the events of 5 August, 2019 have now been clubbed together with the petitions challenging the constitutionality of the POs & the 2019 Act.

[For details of the petitioners/orders visit SC’s website and see case status in Writ Petition (Civil) No. 1099 of 2019 titled Dr. Shah Faesal & Others Versus Union of India & Another]

Law on habeas corpus turned upside down

The law in habeas corpus requires the person under detention to be produced before the court or a judge. But the SC attuned the relief to suit the government. Instead of ordering the government to produce the detenue in court, petitioners in some cases were directed to visit the detenue in Kashmir with the proviso that they will not indulge in any other (political) activity.  The J & K High Court became de facto nonfunctional. In June 2020, J & K High Court Bar Association, Srinagar wrote to the Chief Justice of India that since August 6, 2019 more than 600 habeas corpus petitions have been filed before the High Court of J & K at Srinagar; however till date, not even 1% of such cases have been decided.

Turn the clock back …

On 02 March, 2020 a five judge Constitution bench of the SC decided that it need not refer to a larger bench the petitions challenging the constitutionality of the POs & the 2019 Act. Earlier on 1 October, 2019 the SC declined to stop the Centre from carving out two centrally-administered union territories out of Jammu and Kashmir orally saying that it could always “turn the clock back”. A reasoned written order declining stay on the 2019 Act which came into effect on 31 October, 2019 was never passed – effectively preempting its challenge! There is no clarity on when the petitions will now be listed for arguments!!

(but) … within the domain of our country

On 29 July, 2020 a three judge bench of the Supreme Court presided over by Justice Sanjay Kishan Kaul allowed conditional release of Mian Abdul Qayoom, President of J & K  High Court Bar Association, who had been in jail since August 2019. The release order does not examine the “legality and validity of the impugned judgments” of the High Court of J & K denying him bail! The order was passed after the government agreed to release him on certain conditions.  Be that as it may, more alarming is the obiter dicta in the order which states:

“Before we part with the matter, we must say that Kashmir has been a troubled area. Nature has been very kind to the place. It is the human race which has been unkind. It is time for all wounds to be healed and look to the future within the domain of our country. We are sure that the petitioner will also adopt a more constructive approach to the future and the Government will consider how to bring complete normalcy at the earliest.”

The use of the phrase “within the domain of our country” in the above order has several very troubling connotations viz:

1. Complete identification of the Supreme Court judges with the Central Government;
2. “Our” could also be used like ‘us and them’, ‘ours and theirs’, ‘Indians and Kashmiris’;
3. It shows pre-existing bias in the mind of the SC judges who passed the said order.

There was no reason for this obiter dicta to form part of the order for release of Mian Abdul Qayoom. However now that it has been done Justice Sanjay Kishan Kaul –  who is also part of the five judge bench hearing the challenge to the  POs & the 2019 Act – must recuse himself from hearing the said petitions as the fact that his mind is made up on the issue is no longer a secret. It is possible that other four judges on the bench also feel the same way but at least let there be a seemingly just hearing. After all justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Epilogue

On 5 August, 2020 PM Modi will lay the foundation stone of Ram temple in Ayodhya. Adherents of the Hindutva ideology are working overtime to brand 5 August as a Hindutva day.

[This article is part of a series on litigation post developments of 5 August, 2019; the first article was published on 02.09.2019 in CC titled: The Presidential Orders That Felled A State; Writ Petitions Challenging This Fraud On The Indian Constitution; Praying Justice For Kashmiris]

Shobha Aggarwal is a Delhi based rights activist and lawyer.    

Email: pilwatchgroup@gmail.com

First published: https://countercurrents.org/2020/08/why-justice-s-k-kaul-must-recuse-from-hearing-kashmir-petitions/

Why Is The Hindustan Times Pimping For An Investigating Agency?

 

The PIL Watch Group views with serious concern the reporting in the print edition of Hindustan Times (HT) dated 25 July, 2020 (later uploaded on its website) regarding Gautam Navlakha’s interrogation by the National Investigation Agency (NIA) about Bhima Koregaon case. Questions arise:

1. Was it a planted story in the HT as no other newspaper or news agency carried it on that day?
2. Under which law of the country was the NIA briefing a newspaper about a pending investigation which has the potential to irreparably damage the reputation of Gautam Navlakha and his right to a fair trial?
3. Since when has attending a seminar on Kashmir become a criminal offence? Certain constitutional changes regarding Kashmir have taken place a year back but they are under challenge in the Supreme Court. In any case the alleged attendance of seminar by Gautam Navlakha took place much before August 2019.
4. Since when has visits to jungles become a cognizable offence? Both Jayaprakash Narayan and Acharya Vinoba Bhave had visited the dense jungles of Chambal valley to get the dacoits into the mainstream life. Gautam, too, in a different context was attempting to deepen democracy.
5. Journalistic ethics demand that the reporting should not have been done without Gautam Navlakha’s point of view being carried. Why was this basic principle violated? Why should the Press Council of India not take suo motu action against the paper?
6. Why should the National Human Rights Commission not take cognizance of this development because at stake are the human rights of Gautam Navlakha which are being violated while he is in custody? Additionally NHRC should summon the NIA official who leaked the information to HT during an ongoing investigation.
7. Is the editor of HT aware of the various judicial orders/government guidelines safeguarding the rights of people in custody in similar situations?

Dr. P. S. Sahni & Shobha Aggarwal

Members, PIL Watch Group

Email: pilwatchgroup@gmail.com

Home Minister Et Al Made Provocative, Threatening Speeches: Statutory Body’s Report On Delhi Violence

Co-Written by Dr. P. S. Sahni & Shobha Aggarwal

“If crime itself assumes authority and power

And hunts down people, holding them criminals,

Everyone endowed with a mouth who keeps silent,

Becomes (a) criminal himself.”

                                                    - Varavara Rao

Incarcerated Telugu poet Varavara Rao must feel satisfied that several brave men and women coming from different faiths have refused to be silent accomplices. They were members of the fact finding committee constituted by Delhi Minorities Commission (DMC) to enquire into the February 2020 violence in Delhi. In the Report they have named the man who heads the Union Home Ministry – the very same Ministry courtesy which Varavara Rao nay thousands of others are imprisoned. The 130 odd paged Report is available in various formats at: https://archive.org/details/dmc-delhi-riot-fact-report-2020.  It needs to be translated into all Indian languages included in the Eight Schedule of the Constitution of India. The Report has compiled the testimony of journalists – all from the non-Muslim community – who had filed their on-the-spot reports as any journalists should as per the criteria laid down by George Orwell:

“Journalism is printing what someone else does not want printed: everything else is public relations.”

But for the factual reports of these journalists the world would not have known the truth about the violence.

The DMC Report indicts the Delhi Police for being either complicit (against the Muslims) or being mute spectators to the violence unleashed on the minority community. The Report journeys us through the peaceful, continuous protest launched by women at Shaheen Bagh, Delhi against the Citizenship (Amendment) Act, 2019 (CAA) and National Register of Citizens (NRC); how violence was unleashed through a conspiracy to damn the peaceful protest which had received worldwide attention. The Report records how efforts to lodge FIRs by Muslims got thwarted; how the victimized members of the minority community were made out to be accused by the Police! Even the promised compensation has largely evaded the victims.

Similarities with 1992 violence

Ironically the 1992 anti-Muslim violence in Delhi resulted after the Muslims were silently protesting/mourning the martyrdom/demolition of Babri Masjid, Ayodhya. The role of police; obstruction to filing of FIRs by Muslims; victims being made the accused; compensation being denied to most victims – the whole chain of events was no different from that of 2020 Delhi violence. We can testify to this as we at ABVA had worked amongst the victims and brought out a Citizens’ report titled “Victims’ Version”. The report was authored by Arun Bhandari; Jagdish Bhardwaje; Manoj Pande; Dr. Puneet Bedi; Dr. P. S. Sahni.

We recall how the Supreme Court then reacted to a petition filed by civil liberties champion V.M. Tarkunde, formerly judge, Bombay High Court and now since deceased on behalf of the victims. The petition had appended all the reports documented by activists on the issue. Shoving away the file the judges disagreed that the Delhi Police is communal. And with that the petition was dismissed!

Sham enquiry into 1984 anti-Sikh violence

Significantly after the anti-Sikh violence in November 1984 the Rajiv Gandhi government appointed Js. Ranganath Misra, then Judge Supreme Court as a one-man commission to enquire into the violence. Js. Misra exonerated the higher echelons of the ruling Congress (I) party and put the blame on the lower level functionaries. The moral courage and conviction of the ten member fact finding team of DMC contrasts sharply with that shown by Js. Misra. The DMC Report becomes a template for all future efforts everywhere in similar situations.

Yet these are troubled times:

“How topsy-turvy is this world

Those who ought to be in the dock

Have in their hand

Key to the prison.”

A peoples’ movement could upset apple cart.

Dr. P. Sahni & Shobha Aggarwal are members of PIL Watch Group & ABVA. Email: pilwatchgroup@gmail.com

Revolutionaries, Fasts & Prisons – Cue For Jailed Activists!

by Dr P S Sahni 

A grim scenario is unfolding itself in India over the last 6 years and 2 months. Social activists are being arrested on fabricated charges under Draconian laws – where in bail is denied – and incarcerated with no end in sight to their trial. The period of imprisonment itself becomes a long punishment. Many of the detenue are from the minority communities like Muslims, tribals, dalits, Christians, poets, intellectuals, writers, academicians, students, journalists and those working for civil liberties and democratic rights issues. Hundreds of habeas corpus petitions were lying pending in the Jammu and Kashmir High Court last year for months after the great betrayal of the Kashmiris!!! The legal process of trying for bail from lower court to the apex court brings no relief.

Democratic protests in support of these activists have been curtailed – section 144 IPC has been imposed eternally in many popular protests sites; police permission is not granted for protests; number of protesters has been limited; protests spaces are being shrunk; strict watch is kept through CCTV cameras, drones, AI, facial recognition techniques – all these are used by the state to ensure a chilling experience of participating in a protest. The judiciary turns a blind eye when the right to peacefully protest is abrogated. The corporate press censors out the news or distorts the coverage. Parliament itself has no time to admit a call attention debate notice on such issues of public importance. To this must be added that a long term concerted effort for mass protests against curtailment of democratic rights has not got built ever since the Internal Emergency era, 1975-77. Discussion of the future of such concerted effort might usefully begin with the recognition of this fact. Sumanta Banerjee, author and veteran democratic rights activists commented in Countercurrents.org on 16 January, 2019 in relation to Anand Teltumbde’s urgent plea for support:

“While of course understanding the need for approaching courts for justice for civil rights activists like you, there’s a need for supplementing such judicial moves by organizing mass movements – even against judicial orders which violate democratic rights.”

Ranjit Sur, a central secretariat member of the Association for the Protection of Democratic Rights (APDR) in an interview to Sanhati on 24 January, 2019 sounded an optimistic note:

“There is repression on so-called “urban Naxals” across the country. All of this may lead to a certain rejuvenation of the rights movement, some traces of which we have started to see.”

So what options are available in situations where activists are languishing in jails for years all over the country with their number reaching tens of thousands? A cue emerges from the revolutionaries who fasted in prisons for illegal detentions, improvement of jail condition and rights of under-trials and convicted prisoners.

Satyagraha as a weapon of political resistance

In 1929, during the anti-colonial struggle both Batukeshwar Dutt and Bhagat Singh had decided upon a hunger strike in the Central Jail Mianwali, Punjab (now in Pakistan) in order to bring about a change in the rigorous jail life. It was demanded “that all persons who are convicted of offences that are actuated by political motives, and not for any personal gain or object, should be regarded as political prisoners who should be allowed facilities for study, newspaper, better diet, and association of all political prisoners with each other.” The undertrials threw in their weight by declaring a sympathetic hunger strike on 13 July, 1929. On 28 July the condition of Jatin Das – member, Hindustan Socialist Republican Association – became serious while lodged in the Borstal Jail, Lahore; he finally embraced death after fasting for 63 days on 13 September, 1929, aged 24 years. The Punjab Jail Enquiry Committee was forced to promise amelioration of the jail conditions. Again the Kakori Conspiracy was a train robbery that took place between Kakori and near Lucknow on 9 August, 1925; the robbery was organized by Hindustan Republican Association. The robbery was conceived by Ram Prasad Bismil & Ashfaqullah Khan. After the court verdict in the case the accused were sent to different jails of United Province. In the jail the revolutionaries argued that since they had been charged with crimes against the British rule they should be treated as political prisoners. These prisoners went on a hunger strike for periods ranging from 4 days to 45 days in different jails in United Province. Most significant was the hunger strike at Andaman Islands in 1933. This lasted for 45 days, three lives were lost but the hunger strike kept the spirit of anti-colonial struggle alive in the lull after the failure of Gandhi’s Civil Disobedience Movement of 1930.

Hope lies in the younger prisoners – particularly the students – presently lodged in various jails launching a Satyagraha on similar lines.  It could set in motion mass campaigns and movements in civil society and put pressure on the authorities.

Dr. P. S. Sahni is a member of PIL Watch Group and ABVA. Email: pilwatchgroup@gmail.com

First published: https://countercurrents.org/2020/07/revolutionaries-fasts-prisons-cue-for-jailed-activists/

Has The Last Bastion – Judiciary – Finally Fallen?

— by Shobha Aggarwal

The mainstream print media never tires of speaking up in favour of Public Interest Litigation (PIL). However in a recent article ‘The Rise and Fall of The PIL’ by Mr. Harish Salve (The Times of India, 05.06.2020) the author has been critical of PILs but in a selective way. As certain points raised by him cannot be left uncontested and the ToI is unlikely to print my viewpoint in full, I am taking the liberty of raising the same in CC.

While taking a dig at the UPA 2 government Mr. Salve states “2009-14 saw a dramatic rise in such PILs – as governance shrank … for nature abhors a vacuum”. However the 2018-19 Annual Report on Indian Judiciary published by the Supreme Court of India gives number of Letters/Petitions and Writ Petitions (Civil and Criminal) received/filed under PIL in the Supreme Court of India from 1985 to 31.10.2019. The data shows that maximum number of letter/petitions, Writ Petitions (Civil) and Writ Petitions (Criminal) filed under PIL till date were received by the Supreme Court in 2018 i.e. 61061, 350 and 49 respectively. Analysis of the data shows that there was an increase of 65% in letter/petitions, 59 % in Writ Petitions (Civil) and 38% in Writ Petitions (Criminal) received/filed as PIL in the Supreme Court during 65 months of NDA I & II (June 2014 to October, 2019) as compared to 65 months of UPA I & II (January 2009 to May 2014). If the number of PILs filed is an indicator of governance during 2009-2014 then by that same logic it implies total failure of governance from June 2014 onwards.

While Mr. Salve is scathing in his criticism of the protagonists of left-leaning economy he ignores that an increasing number of PILs are being filed to implement the right wing agenda. On 22 July, 2019 a day on which the Hon’ble Supreme Court dismissed ‘in limine’ my Special Leave Petition challenging the Delhi High Court judgement on the constitutional validity of Delhi Rent Control Act, 1958; the same bench issued notice in a petition (civil appeal) which inter alia prayed for immediate steps to save the “critically endangered species of indigenous cow progeny with immediate effect and stop their slaughter in any part of the country”. The court even condoned the delay in filing the said petition. In my petition it did not give me even few seconds to argue the petition. It refused to listen to the fact that a similar petition regarding U.P. rent act was already being heard by another bench in the Supreme Court. It did this even though testing the constitutionality of a law on the touchstone of the fundamental rights is the duty of the Supreme Court under the Constitution of India and not saving species of indigenous cow. That is the job of the executive.

When such orders are passed the inescapable feeling one gets is that the fate of a petition in the Supreme Court depends on external factors like the concerned bench, face value of the lawyer appearing etc. Many orders are apparently arbitrary and have little to do with the merits of the case. My impression is that in the last six years of NDA being in power more and more PILs are being filed and heard to further the right-wing agenda. The courts are also seen to be tilting towards it.

For instance even before the Central Government bifurcated the state of Jammu and Kashmir into two Union Territories in August 2019 and abrogated Article 370, there were PILs pending in the Supreme Court challenging the constitutionality of Article 370 of the Constitution of India. The right-wing tilt is further evident by the fact that bail has been denied to many human rights activists – arrested under draconian laws on flimsy grounds – even during the ongoing pandemic of COVID-19. The courts are in process of overturning the settled jurisprudence on bail. Judges are forgetting that ‘bail not jail’ is the norm. In such a situation a critical analysis of PIL – who files, who benefits – is the need of the hour.

I firmly believe that there should be a complete ban on PIL. But my reasons are entirely different from Mr. Salve’s. In 2005, PIL Watch Group – a non-funded, non-party organization published my research on PILs as a Citizen’s Report titled “The Public Interest Litigation Hoax – Truth Before The Nation”. In this report I had concluded that in PIL cases hundreds of thousands of poor people in India have been adversely affected to the extent of losing their livelihood, homes and even Constitutional guaranties all in the name of ‘public interest’; even though PIL in India derives its legitimacy as an instrument to provide justice to the underprivileged and the downtrodden. The most important reason for this is that in PIL the principles of natural justice are not followed. For example in the case of Delhi industries the Supreme Court thought nothing of taking away the livelihood of around one million workers (and their families) without giving them a hearing and displacing them from Delhi where they were rooted for two generations. When lower adjudicating authorities violate principles of natural justice the affected can appeal to higher judicial bodies. But if the highest court in the land violates principles of natural justice people have nowhere to turn to.

Even in cases where the Supreme Court adjudicated in favour of the oppressed like in PUDR v. Union of India (the case of construction workers of Asiad 1982), in which the Court directed the government to enforce labour laws the judgement never got implemented. It is the same story with most such judgements. Though now very few PILs, if any, are espousing the cause of the poor.

The disdain with which the Supreme Court has treated the poor in PIL belies its initial purpose. This contempt for the poor was again evident in the Supreme Court’s initial handling of the migrant workers issue recently when after 16 migrants were run over by a goods train on 8 May it reportedly said: “How can anybody stop this when they sleep on railway tracks?” It dismissed the application. Later when it came under heavy criticism it took up the issue suo motu!

That the judiciary would protect the rights of the poor in PIL was always a mirage. When my report on PIL was published I received positive inputs only from the people who were left of the centre. Veteran socialist thinker late Mastram Kapoor ji wrote a half-page article for ‘Jansatta’, a Hindi newspaper based on the report. In a touching gesture he made the effort to come to the Indian Coffee House to meet our group. He gave us his Hindi novel on caste in India titled ‘Kaun Jaat Ho?’ and a book on Madhu Limaye. He was about 80 years old then. In an email dated 27 May, 2005 Mr. Amitadyuti Kumar from Association For Protection of Democratic Rights (APDR), West Bengal commenting on the report observed “It is needless to say that such a study was long overdue. Not only because it was fairly long overdue to expose the ‘hoax’ but also because the ‘hoax’ was able to build up a myth about judicial activism and a sort of expectation that finally justice is available through judicial process.”

In 2005 my colleague, Dr. P. S. Sahni and I went to discuss the report with Gautam Navlakha, then Editorial Consultant with Economic and Political Weekly (and presently incarcerated in jail simply because the rulers don’t want a dissenter around). Gautam was excited about the report and encouraged us – as he would any fellow-activist. He telephoned the Editor, EPW there and then and gave a brief background of the report. In spite of Gautam’s sincere and best efforts the EPW Editor was reluctant to carry the report and I received a rejection slip 6 months later. Gautam asked me to try ‘Mainstream’ magazine, which duly carried a long piece.

But all attempts by the members of PIL Watch Group to get the funded NGOs or PIL lawyers to critically comment on the report failed. This is not surprising as PIL itself has become an industry. (See my article ‘PIL as industry’ in The Tribune). They continued to maintain a deathly silence on the issue. It was as if by ignoring the PIL Hoax Report elephant in the room will disappear.

P.S. I am not a member of any political party and I do not support either NDA or UPA.

Shobha Aggarwal is a non-funded, non-party rights activist and lawyer based in New Delhi. Email: pilwatchgroup@gmail.com

First published: https://countercurrents.org/2020/06/has-the-last-bastion-judiciary-finally-fallen/

Adieu, My Adenium

Last Bloom, April 2017

Early 1998, I visited Bhopal for some work. Bhopal has a lot of plant nurseries and supplies them to many places in India. I also decided to buy some plants. I knew little about exotic plants then. A friend of mine helped me select some nice plants and one of them was a small sapling of adenium (native to Africa) bought for a meagre Rs. 20/-. I carried the plants back to Delhi in a train with great care. After reaching Delhi I transplanted them and generally forgot about them. I would barely manage to water the plants once a week.

During periods of long depression I went through till 2005, sometimes plants will not get watered for weeks. At times I would go out of Delhi for months at a stretch. My sister living nearby would get my house plants watered occasionally in my absence. I added organic fertilizers to the plants once or twice in a decade. Many of my plants died in this general atmosphere of neglect. However, the adenium thrived. By default it was placed at the most sunny spot in the balcony which suited the alluring desert rose perfectly. It bloomed regularly every year with lovely pink & white flowers. Its caudex became big and intriguing. Occasionally I would admire the twists and turns of its caudex. It was tall and graceful. Very different from the hybrid/grafted variety sold in the nurseries these days. Every year in the month of June I would notice thin, hairy things flying around in my balcony and wonder where these have come from. In my colossal ignorance I did not realize that these were adenium seeds. The seedpods had opened and precious seeds dispersed all over.

In April 2017 as a diversion from life’s travails my interest in gardening got revived after decades. Soon my small balcony was full of new plants. At that time the adenium was in full bloom and pride of my balcony garden. Its flowers exquisite! I had finally begun to fully appreciate the mystique of the desert rose. That year for the first time I enthusiastically waited for the seedpods to emerge. By then I had educated myself on the subject. The adenium plant gave three seedpods that year. I planted 50 odd adeniums seeds. Gave one seedpod to my sister. Soon I had several seedlings.  I distributed them to my friends and relatives. Unfortunately most of them died over a period of time except two at my sister’s place. Apparently in my impatience I had harvested the two seedpods before they matured fully.

In May 2018 the adenium started to die. My over caring for a year and lack of Sun (as my adjoining neighbour constructed a wall that year which blocked the morning Sun and light in my balcony) smothered it. I noticed the soft caudex but failed to act in time. Too late I made efforts to save it but to no avail. I desperately planted its stems, roots in separate pots hoping for some new growth but to my utter despair nothing happened. After 20 years I lost it. Deserted it had bloomed, cared for it perished!

Unable to bear the loss I bought several new adenium plants to replace my old adenium. They all adorn my small balcony. But it just does not feel the same. How I wish that the old neglected adenium, I had taken for granted for so many years, had aged with me!

Shobha Aggarwal can be contacted at pilwatchgroup@gmail.com

First Published: https://countercurrents.org/2020/05/adieu-my-adenium/

‘When Kings/Rulers Become (Man-eating) Lions Then Judges/Officials Behave Like Dogs!’: Nanak

 by Dr P S Sahni 

Ever since the present regime in India betrayed the people of Kashmir through Presidential proclamation of August 5-6, 2019 – and whose constitutionality is being reluctantly and belatedly tested by the Supreme Court of India – Nanak’s quote is being rendered more and more apt day by day. In one fell blow the assurance of plebiscite to Kashmiris was shelved. No talks were held even with a single Kashmiri prior to this act of betrayal.

Right at the beginning when a batch of petitions pertaining to Kashmir got filed in the Supreme Court, the judges showed no inclination to hear these urgently; delay of weeks and months was engineered by the powers that be. Primacy was granted to the Ayodhya case; the court could have easily constituted another bench to hear the Kashmir petitions right away. It did not. It could have heard the Kashmir petitions on a priority basis and kept the Ayodhya matter in abeyance – albeit for a while. It chose not to. It treated habeas corpus petitions emanating from Kashmir almost in a contemptuous manner. And all this while the whole of Kashmir and its seven million people were put under virtual house arrest with total denial of telecommunication services, public transport, access to hospitals; there was closure of educational institutions, shops and business establishments. Shortage of essential items of daily use ensued. Popular protests were ruthlessly suppressed. Indians learnt about this from foreign media. Political leaders were detained, arrested and jailed. No one from outside Kashmir was allowed to visit the state. The police, para-military and the army called the shots. The roads were deserted; even reaching a mosque for Namaz was out of question. Ordinary people struggled to get news about their neighbours, friends and relatives. Editors found it difficult to bring out morning newspapers. Kashmiris stranded in different parts of India were not able to get in touch with their near and dear ones in Kashmir. It was a harrowing experience. And it was indeed a never ending ordeal.

True there were peaceful, democratic protests all over India in support of the betrayed people of Kashmir. Civil society groups, mainstream political parties and Kashmiris in different parts of India protested against the worst mass torture of seven million brave Kashmiris. Demands were made for bringing status quo ante in Kashmir as on 4th August, 2019.

Any judge of the Supreme Court of India with even a modicum of sensitivity, concern, justice and equity should have entertained the habeas corpus petitions and asked all the detainees to be produced before the Supreme Court within 48 hours. The judges in India fared no better than those in Hitler’s regime. The Supreme Court ruthlessly abandoned and deserted the people of Kashmir when they were most in need of judicial protection and relief.

And all this while the five judges of the Constitution bench of the Supreme Court of India were expending their energies to lay primacy of faith over evidence adduced in the (in)famous Ayodhya case. These five judges acted as pall-bearers and buried secularism six fathoms deep. It may be reminded that the then Chief Justice of India – presiding over the bench – earlier had a sexual harassment charge levelled against him by an employee of the Supreme Court itself.

Even the petition filed by the executive editor of Kashmir Times did not elicit any immediate relief – only futuristic homilies were offered. Kashmir Times fought the onslaught on the media in Kashmir the way Indian Express and Statesman fought during the Emergency era. Again the Supreme Court could have stayed the operation of Jammu and Kashmir Reorganisation Act, 2019; it did not. In fact some of the petitions were dismissed/shelved and did not even merit being sent to the duly constituted Constitution Bench!

Continuing their onslaught the judges of the Supreme Court preferred to give priority to the Sabarimala case rather than constitutional validity of the Citizenship (Amendment) Act [CAA]. No stay was granted on CAA. No immediate hearing was fixed for CAA. The delaying tactics followed for the Kashmir petitions were repeated for the CAA case.

The higher judiciary refused to provide justice to JNU students who were bashed up by outsiders; no relief to Jamia students when the police had barged into the Jamia campus, ransacked the library and beat up students and teachers. The judges did not even ensure that FIRs got filed in these cases; forget any suo motu action by judges.

The Shaheen Bagh protesters have faced the wrath of the Chief Justice of India (CJI), who appeared to be solely concerned about the death of an infant reportedly due to pneumonia because of cold weather. It is another issue that pneumonia is caused by bacteria, virus, fungi etc; cold weather causes common cold not pneumonia. Anyway the CJI relied on media reports alone and never saw or asked for the infant’s death certificate before pontificating on the alleged irresponsibility of the mother of the infant! The CJI ought to know that one million children die due to pneumonia every year in India. If only the CJI walks along the boundary wall of the Supreme Court of India, he would see women labourers with infants/children working on an ongoing construction project – which would ensure a tunnel road for the safe passage of judges of the Supreme Court during morning/evening hours so that they are not caught in a traffic nightmare!

In a similar display of total disregard for the Indian Evidence Act, the National Commission for Protection of Child Rights – based on a video gone viral – has concluded that children protesting at Shaheen Bagh need to be saved from mental health issues! Psychological counselling was recommended. This body did not get the authenticity of the viral video checked; did not talk to the children or their parents; but straight away asked the police and district magistrate to ensure implementation of its orders!! Has even the law of natural justice been given a burial, otherwise why were the protesters not given a hearing?

The Muslims bore the brunt of the recent engineered violence in north-east Delhi. It is reminiscent of the 1984 anti-Sikh pogrom. The Chief Justice, Delhi High Court gave a long rope to the powers that be – no immediate FIRs against BJP netas giving hate speeches! No early hearing; next hearing after six weeks!! No judicial intervention!!! The judicial masterly inactivity continues; worse activists and opposition politicians were framed through public interest litigations before the same court the very next day.

It may well be that peaceful protests in India may get banned; and there would be shoot at sight orders for any peaceful protesters. Just a glimpse at what is happening around would give an idea. Reports from all over India mention sedition cases being filed by those protesting against CAA; protesters have been injured or killed in police firing. No permission is granted for peaceful demonstrations; collective fines are imposed on those protesting where public property gets damaged; cultural activities attract charge of sedition; arrests are made in protests where preamble of the Constitution of India is being read. Even permission for forming a human chain at Rajghat, Delhi is denied; Section 144 gets imposed where ever protests are planned.

[The title of the article is a quote from Sri Guru Granth Sahib Ji. The verse in Gurmukhi script was composed by Guru Nanak, Sufi-saint and founder of Sikhism. Nanak had witnessed and chronicled the oppressive rulers of his times about five centuries back in India.]

Dr. P.S. Sahni is a member of PIL Watch Group. Email: pilwatchgroup@gmail.com

Also at: https://countercurrents.org/2020/03/when-kings-rulers-become-man-eating-lions-then-judges-officials-behave-like-dogs-nanak

Supreme Follies By The Supreme Court Of India – Judiciary In A Morass

by Shobha Aggarwal 

Death of an infant at the Shaheen Bagh protest site, Delhi has been taken ‘note’ of by the Supreme Court of India. The Court has taken up the matter with the cause title of the case (initiated suo motu) being: “In re To Stop Involvement Of Children And Infants In Demonstrations And Agitations In View Of Death Of An Infant On 30.01.2020 At Shaheen Bagh New Delhi”. The title itself betrays the bias inherent in the judges’ minds.  The outcome of the proceedings is a foregone conclusion given the way the rational voices of some advocates were suppressed with sentimental outburst by judges. The case was initiated after a twelve year old wrote a letter on the issue – which was widely reported in the mainstream media on 05.02.2020 – to the Supreme Court! This raises many questions.  A knee jerk reaction by a 12 year old to an issue is condonable but not that of the Supreme Court. But this has now become the norm. The Supreme Court receives thousands of letter petitions every month. Why pick this one for urgent hearing? In fact the Court restrained itself from hearing the matter for a few days only in view of the assembly elections in Delhi on 08.02.2020. Next day being Sunday the Supreme Court lost no time and on 10.02.2020 it issued notice to the Union of India and the Government of NCT of Delhi. Such amazing speed is rarely witnessed in the hallowed corridors of justice in India. In a country where on an average 1,975 infants died every day in 2018 why is the SC showing such concern over one child’s death? Needless to say that the tragic death of the child itself had nothing to do with the visits made to Shaheen Bagh with his mother. The child was probably better off there than in the plastic shanty in which his family lived. Should children be stopped from getting admitted in a hospital when sick because over hundred infants have died recently in a hospital in Kota, Rajasthan!

Recall that the principles of natural justice are essentially meant to ensure a fair hearing in all judicial and quasi-judicial proceedings and these should not be bypassed. The concept encompasses two rules:

(i) nemo judex in re sua, i.e. the authority deciding the matter should be free from bias; and

(ii) audi alteram partem, i.e. a person affected by a decision has a right to be heard.

Again the legal position is well laid down that the courts do not decide academic questions. Yet the Supreme Court has proceeded to do just that in the review petitions filed against the Sabarimala judgement. The order dated 10.02.2020 states that for “reasons to follow, we hold that this Court can refer questions of law to a larger bench in a Review Petition.”

The Court has framed the following issues for consideration:

1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

These questions are not urgent in nature. The Court has pre-decided the issues which again betrays its bias. It is indefensible not to give reasons while passing this order. The outcome of a reasoned judgement could have been different. Why was it in such a hurry?  And why should the 9 judges of the Apex Court spend time in hearing these petitions when important and urgent issues like the Citizenship (Amendment) Act, 2019 and the Jammu and Kashmir Reorganisation Act, 2019 and related notifications are pending adjudication. There are many other important constitutional matters lying in cold storage in the Supreme Court for decades.

It seems that the Supreme Court of India is bending over backwards to help further the majoritarian agenda of the Hindu right wing central government. Judiciary historically has colluded with fascist regimes. What we are witnessing now in India is therefore not a new phenomenon. In such times we have to be very, very wary of the judiciary. It cannot be depended upon to fulfil its constitutional mandate of protecting the fundamental rights of the citizens of India.

Secondly, the case pertaining to the death of an infant at Shaheen Bagh and review of Sabarimala judgement (and numerous other cases) fall under the category of Public Interest Litigations. PIL has become a very powerful tool to further the right wing Hindutva agenda. Even before the legislative abrogation of Article 370 in August, 2019 the Supreme Court was entertaining many petitions to strike down the same. In 2000, I did a detailed study which critically examined the PIL judgements of the Supreme Court of India through the last two decades of the twentieth century in the light of the principles of natural justice and came to the conclusion that the poor and the working class have been adversely affected by them. PIL by its very nature is unconstitutional and undemocratic. The crucial issues for which social, political & legislative solutions are required get argued and decided in court rooms by a few lawyers and judges. PILs also subverts people’s movement as battles are fought in the court rooms instead of public domain. So far there has been no honest introspection by rights activists and lawyers on the adverse impacts of PILs. Just one PIL by M.C. Mehta resulted in one million workers losing their jobs in industries in Delhi! However, it seems that it is already too late to put the genie back in the bottle!

[References: 1. Visit http://www.sacw.net/article11105.html for an abridged version of my report titled “The Public Interest Litigation Hoax – Truth Before the Nation; A Citizen’s Report on how PIL fails to provide justice to those who need it most” published in April, 2005 by PIL Watch Group.

2. Visit https://theprint.in/opinion/how-judiciary-helped-hitler-and-stalin-in-destroying-political-opposition/285057/ to read more on judiciary during fascist regimes]

 Shobha Aggarwal is a Delhi based lawyer and rights activists.

Email: pilwatchgroup@gmail.com

Also at: 1. https://countercurrents.org/2020/02/supreme-follies-by-the-supreme-court-of-india-judiciary-in-a-morass

2. http://www.kashmirtimes.com/newsdet.aspx?q=99408