The Presidential Orders That Felled A State; Writ Petitions Challenging This Fraud On The Indian Constitution; Praying Justice For Kashmiris

by

Shobha Aggarwal

[This article was first published in Countercurrets.org on 2 September 2019. It is being reproduced 7 years after the State of Jammu and Kashmir was felled on 5 August 2019.]

As we wait with bated breath for real news from Jammu and Kashmir since the total clampdown of 5 August, 2019, a large number of Writ Petitions finally got filed and the Supreme Court belatedly heard these on 28.08.2019. I read those of the petitions uploaded on the web and prepared this brief piece; and added a note on what one perceives to be the kingpin proviso of the President’s Proclamation dated 19.12.2018! Hopefully it should help readers keep abreast of the legal battle ahead.

Part I

All the petitions filed in the Supreme Court were listed before a bench comprising of Chief Justice of India Ranjan Gogoi, Justices S.A. Bobde &S. Abdul Nazeer and are being detailed herein.

Petitions on Constitutional Challenge

In the first category are the cases which challenge the constitutionality, legality of one or all of the following:

5. Presidential Order O. 272 dated 05.08.2019
6. Presidential Order C.O. 273 dated 06.08.2019

• The Jammu and Kashmir (Reorganisation) Act of 2019, which will come into effect on 31st October, 2019.

These are 8 in number and the details are given below:

S.No.	Case No.	Cause Title
1.	W.P.(Civil) No. 1013/2019	Manohar Lal Sharma Versus Union of India & Another
2.	W.P.(Civil) No. 1048/2019	Shakir Shabir Versus Union of India & Others
3.	W.P.(Civil) No. 1068/2019	Soayib Qureshi Versus Union of India & Others
4.	W.P.(Civil) No. 1037/2019	Mohd. Akbar Lone & Another Versus Union of India & Others
5.	W.P.(Civil) No. 1062/2019	Inder Salim Alias Inder Ji Tickoo & Another Versus Union of India & Others
6.	W.P.(Civil) No. 1099/2019	Shah Faesal & Others Versus Union of India & Another
7.	W.P.(Civil) No. 1070/2019	Radha Kumar & Others Versus Union of India & Another
8.	W.P.(Civil) No. 1104/2019	Muzzafar Iqbal Khan Versus Union of India & Others

Key: W.P. stands for Writ Petition

AW.P.(Civil) No. 1082/2019 titled Farooq Ahmad Dar Versus Union of India & Others has also been filed and was listed with the above petitions but details of the petition are not available.

Interim Relief/Stay Prayed For

In some of the petitions, applications have been filed for interim relief/stay of the operation of the two Presidential Orders and The Jammu and Kashmir (Reorganisation) Act of 2019.

President’s Rule Challenged

In Soayib Qureshi’s petition the constitutional validity of Presidential Order and notification dated 19.12.2018 imposing President’s Rule in Jammu & Kashmir has also been challenged. Dr. Shah Faesal’s petition specifically challenges Para (c)(ii) of the said President’s Proclamation.

In all the above petitions notice has been issued to the Government and they will be heard by a five judge constitution bench in the first week of October, 2019. Many more petitions are expected to be filed once the clampdown is lifted.

Petitions on Freedom of Press

On 10.08.2019 Anuradha Bhasin, Executive Editor of Kashmir Times filed a petition for immediate restoration of all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. In this petition notice has been issued which is returnable in seven days. [W.P. (Civil) No. 1031/2019 titled Anuradha Bhasin Versus Union of India & Others]

Release of Political Leaders

In one of the first petitions Congress ideologue, Tehseen Poonawalla has asked for release of political leaders; withdrawal of curfew; restoration of all modes of communication lines. In this petition also notice has been issued. It will be listed along with Anuradha Bhasin’s petition. [W.P. (Civil) No. 1017/2019 titled Tehseen Poonawalla Versus Union of India and Another]

Habeas Corpus to meet parents

In W.P. (Criminal) No. 225/2019 titled Mohammad Aleem Syed versus Union of India the petitioner has been allowed to travel to Jammu & Kashmir; go to Anantnag; meet his parents and after ensuring their welfare, to report back on the next date fixed. He has been directed to file an affidavit of the events that transpire immediately on return from Jammu & Kashmir.

Habeas Corpus to meet friend and colleague

In W.P. (Criminal) No. 229/2019 titled Sitaram Yechury Versus Union of India and Another, the petitioner who is General Secretary of the Communist Party of India (Marxist) sought the production of Mr. Mohammad Yousuf Tarigami, a member of the Party and an erstwhile elected member of the Jammu & Kashmir Legislative Assembly. Sitaram Yechuryhad complained that in spite of best efforts, he has not been able to enquire about the welfare of his colleague and his attempt to meet him personally by going to the State of Jammu & Kashmir has also not succeeded, as he has been refused entry into the State. He has been permitted by the Supreme Court to travel to Jammu & Kashmir only for the purpose of meeting his friend and colleague party member and for no other purpose. The order specifically states that if the petitioner is found to be indulging in any other act of omission or commission it will be construed to be a violation of the Court’s order. He has also been directed to file an affidavit in the court on his return.

[Both the petitioners in habeas corpus petitions have since visited J & K as per the Supreme Court order.]

Questionable Petitions

The first petition to be filed on the issue was by Manohar Lal Sharma on 6th August itself. When this petition came up for hearing (I was present in court at that time), the Chief Justice reprimanded the petitioner and told him why he filed such a badly drafted petition in such a serious matter. He however declined to dismiss the petition even on technical grounds saying it will affect other pending petitions. The downside is that whatever judgement is passed in these writ petitions the case title will be Manohar Lal Sharma Versus Union of India & Another!

There is one more petition which is filed by Vineet Dhanda. Not much information is available on this petition except as per media reports it is a “pro-government” petition. Both Vineet Dhanda and Manohar Lal Sharma keep filing lots of PILs in the Supreme Court!!

Part II

A lot has been written on the Presidential Order C.O. 272; Presidential Order C.O. 273 and The Jammu and Kashmir (Reorganisation) Act of 2019. But the precursor of all this was the Proclamation by the President of India vide G.S.R. 1223(E) dated 19th December, 2018 imposing President’s rule in Jammu & Kashmir which was extended on 03.07.2019. Para (c)(ii) of the said Proclamation inter alia stated:

“the operation of the following provisions of the Constitution and of the State Constitution is hereby suspended, namely:–– “So much of the first proviso to Article 3 of the Constitution as relates to the reference by the President to the Legislature of the State and the second proviso to that article; …” [Emphasis provided]

First Proviso to Article 3

Article 3 of the Constitution of India relates to “Formation of new States and alteration of areas, boundaries or names of existing States.” First Proviso to Article 3 states:

“Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States [***], the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.” [Emphasis provided]

Second Proviso to Article 3

The second proviso in the President’s Proclamation of 19.12.2018 refers to The Constitution (Application to Jammu and Kashmir) Order, 1954, C.O. 48 which adds the following proviso to Article 3 of the Constitution of India:

“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.” [Emphasis provided]

The Kingpin Provision

As earlier proclamations imposing President’s rule in Jammu and Kashmir included similar provisions, suspension of these did not invite any scrutiny this time also. Para (c)(ii) of the Proclamation remained unchallenged in a court of law all these months. But it is the kingpin provision which formed the basis of The Jammu and Kashmir (Reorganisation) Act of 2019 as the requirement of both the reference by the President to the legislative assembly of the State in first Proviso and the consent ofthe Legislature of the State of Jammu and Kashmir in the second Proviso were suspended. The conspiracy to do what got done in the first week of August, 2019 was hatched at least nine months back; the government laboured hard to keep it a secret; and then dropped the bombshell. With hindsight one wonders what if the validity of Para (c)(ii) of the Proclamation had been challenged in the Supreme Court earlier? Could it have back-footed the Government? Could it have helped change the course of events in August, 2019?

Also At: https://countercurrents.org/2019/09/the-presidential-orders-that-felled-a-state-writ-petitions-challenging-this-fraud-on-the-indian-constitution-praying-justice-for-kashmiris

PIL Watch Group is on X (Twitter)

 

PIL Watch Group is on X (Twitter). Visit our twitter handle @pilwatchgroup (https://x.com/pilwatchgroup) for our views on latest political developments. We have till date 8606 posts in all.

Contacting AIDS Bhedbhav Virodhi Andolan (ABVA)

 

PIL Watch Group and AIDS Bhedbhav Virodhi Andolan (ABVA) are sister organizations. You may like to visit ABVA’s blog at:

https://aidsbhedbhavvirodhiandolan.blogspot.com/

 

Also visit ABVA’s Instagram handle (started on 29 May 2026):

@aidsbhedbhavvirodhiandolan

 

ABVA’s twitter account stands suspended ostensibly at the instance of Elon Musk.

12 QUESTIONS TO U.S. PRESIDENT, DONALD TRUMP FROM INDIANS

 

Sir,

This is with reference to the denigration of Indians in general and their duly elected leaders in particular:

1. Language used by you in your Truth Social posts shows that your family set-up, education, work place failed to inculcate civility in your spoken language. What do you say?

2. You have called us as ‘laptop gangsters’. Why then are your MNCs recruiting Indians with IT degrees in highest posts?

3. You refer to our motherland as hellhole. Have you thought what the Nativists think about you and your ancestors who took away their land by force?

4. You refer to Indians as bringing their families to US through subterfuge. Does the family system exist among the whites in US or is it all but broken?

5. If you have ever read global history the whites colonized 2/3rds of the world and raised families there including marriage with locals. The locals never took umbrage. Why should you get bothered now?

6. US has taken the benefit of getting readymade doctors, engineers, IT experts, nurses without spending a penny on their education which they received in India. You recruit them as of use to your economy and pay them pittance and make them face racial discrimination. Is the US establishment not into gangsterism?

7. About 15 months earlier you had sent plane-loads of Indians handcuffed, half starved, allegedly on grounds that they were illegal immigrants. Don’t you dare to repeat what you did at that time? This action of yours violated national, international laws.

8. You badly need the services of a psychiatrist to assess your mental health. Are you prepared for that? Else under US state laws restraint can be used to get you to a psychiatric institution for a check-up and for which no court order is needed.

9. You have denigrated progress of Indian economy by calling it ‘dead-economy’ but which is one of the fastest growing economies in the world. Do you understand you are making a laughing stock of US presidency?

10. Do you understand that your present action at Hormuz has destabilized global economy?

11. Would you kindly forget about using nuclear bomb which could threaten countries in the middle east right up to the shores of India?

12. While you should feel free to deal with both Pope and Christ as you like, please show restraint in referring to leaders of India and Indians. Could you honestly inform the world why you are dodging appearance in Epstein files enquiry by Senate House Committee?

India like Iran and China are ancient civilizations about which you need to read up so that you show respect that is due to ancient civilizations.

Thanks.

PIL Watch Group

 

T

Open letter to President Donald Trump

Sir,

Media reports in India indicate certain comments attributable to you and which project India, Indians in bad light. Your choice of words leaves much to desire. Is this really the assessment you have about us Indians?

Thanks,

P.S. Sahni & Shobha Aggarwal

PRESS RELEASE: Supreme Court Seeks Union Government’s Response on Plea Challenging Non-Enforcement of Delhi Rent Act, 1995 for three decades

 

A Bench of the Supreme Court of India comprising Hon’ble Mr. Justice Rajesh Bindal and Hon’ble Mr. Justice Vijay Bishnoi on Monday, 9 March 2026 directed the Union of India to file its counter affidavit in a writ petition challenging the continued non-enforcement of the Delhi Rent Act, 1995 (“1995 Act”) for nearly three decades.

The Court granted the Union Government four weeks to file its counter affidavit. The petitioner has been permitted to file a rejoinder affidavit within two weeks thereafter. Earlier, on 7 January 2026, the Supreme Court had issued notice to the Union Government in the matter.

During the hearing, the Bench questioned the Government on why the Act has not been notified. The Government counsel sought time to file counter, stating that the matter had come up for hearing for the first time.

The Government also raised a preliminary objection that the petitioner had approached the Supreme Court directly instead of first moving the High Court.

Responding to the objection, the petitioner, Ms. Shobha Aggarwal, who is appearing in person, pointed out that in Common Cause v. Union of India (Judgement dated 8 October 2003), the Supreme Court had declined to issue a writ of mandamus directing the Government to notify the Delhi Rent Act, 1995. In light of that decision, she argued, the High Court would likely have dismissed the petition at the threshold.

The matter will be taken up after the completion of pleadings.

The petition raises an important constitutional question: whether a law duly enacted by Parliament can be kept in abeyance indefinitely – in the instant case for over thirty years – without being brought into force?

Case details:

Writ Petition Civil No. 1177/2025 titled Shobha Aggarwal Vs. Union of India

SC plea questions 30-year old delay in executing Delhi Rent Act of 1995

 

(HT, 14.1.26)

Supreme Court issues Notice to Central Government to explain 30-yr delay by the Executive in Notifying Delhi Rent Act, 1995 despite Presidential approval.

NDH 9.3.26.

Case title: Shobha Aggarwal vs. UOI.

This is not a PIL but a writ petition

Owners welcome SC order

The Public Interest Litigation Hoax in India: its Adverse Impact on the Poor

 by

Shobha Aggarwal

This article is based on a research study conducted by the writer towards the end of the last century and later published in 2005 by the PIL Watch Group as a citizen’s 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.” The report was widely circulated among lawyers, judges, NGOs, and social activists regularly engaged in filing PILs. We still await a critique of our document.

 

We drew encouragement from Manu Kothari and Lopa Mehta’s campaign critiquing the mainstream management of cancer globally. These professors later wrote that no one in the establishment could challenge their viewpoint. Similarly, when Ivan Illich wrote Medical Nemesis, he was called iconoclastic; today, the medical establishment acknowledges the value of his critique on the limits of medicine.

 

While campaigning with the Report, some organizations privately conceded that they filed PILs even though Supreme Court orders rarely reached victims to provide relief. A number of international publications have cited the Report, less often by the homebred academic journals. [A list of these publications will follow soon.] A section of the national press covered it when it was released at the Press Club of India. Freelance journalists carried half-page features on it. Late Mastram Kapoor, veteran socialist ideologue, drew a parallel between Ram Manohar Lohia’s efforts to file cases for the poor and the original purpose of the earliest PILs. Ram Avtar Shastri, a syndicated journalist, covered it on the front page of Punjab Kesari, and the article was widely reproduced in the vernacular press.

 

We even dared to present our Report to those who had made a business out of PILs. Copies were kept at the Central News Agency, and we were surprised when an individual from Goa ordered 100 copies. Copies from a left-leaning bookshop at the Constitution Club even reached the United States! The Report was covered in Mainstream Weekly, Manushi, Free Press Journal, The Tribune, Jansatta, Punjab Kesari, The Statesman, SACW, Frontier Weekly, Countercurrents.org and The Telegraph. One of the first commendations we received was from APDR, West Bengal. The study remains as relevant today – and stays as uncontested till date – as when it was first published.

 

The idea of Public Interest Litigation was propagated by a handful of Delhi-based Supreme Court lawyers and judges in the late 1970s and early 1980s. In the half-century since its inception in India, PIL has assumed pandemic proportions, spreading even to countries where Indian judicial precedents carry weight. Though originally intended to provide judicial redress to the poor, PIL has been hijacked to advance ideologically driven agendas. Today, very few PILs are filed on behalf of the poor and needy.

 

Much judicial time in the Supreme Court and High Courts is wasted on sprawling, inconclusive proceedings—for example, M.C. Mehta’s mammoth petition on environmental pollution, pending in the Supreme Court since 1985. Forty years on, Delhi’s air and water are more polluted today than they were in 1985. As a result, adjudication of important constitutional issues has taken a back seat.

 

In effect PILs have managed to depoliticize society through subversion of people’s campaigns and movements. It has now become an industry, often sustained by massive foreign funding. PILs flout basic principles of natural justice and lack any sound legal foundation. Far from being a tool of justice, PIL has become a genie that must be put back into the bottle.

 

Abstract - In Public Interest Litigation (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. Why have things come to such a pass? The most important reason appears to be that in PILs the principles of natural justice are not followed. For example in the case of Delhi industries the Supreme Court (SC) 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. Where 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. This study critically examines the PIL judgements of the Supreme Court of India through the eighties and nineties in the light of principles of natural justice and how they adversely affect the poor.

 

See the full article at: https://drive.google.com/file/d/1QlLSNu84dL_uK1blxIaQ3MYyuEdg0lME/view?usp=sharing

 

Open letter to Priyanka Gandhi:

Respected Madam,

We had sent a letter to Rahul Gandhi (Countercurrents.org 11.6.2017) urging him to go on a Padyatra from Kashmir to Kanyakumari.

Today we appeal to you to ensure that you get projected by INC as its PM choice.

Need of the Nation.

Thanks,

Yours sincerely,

Shobha Aggarwal & P.S. Sahni

Members, PIL Watch Group

VICTIMS' VERSION

"VICTIMS’ VERSION" - A CITIZENS’ REPORT ON THE VIOLENCE COMMITTED PRIMARILY AGAINST THE MUSLIMS IN SEELAMPUR DELHI ON 11 DEC. 1992 BY AIDS BHEDBHAV VIRODHI ANDOLAN (ABVA), NEW DELHI. See:

https://s3.documentcloud.org/documents/4321699/Victims-Version-1993-ABVA-Report.pdf

 

COVID-19 Pandemic: A Joint Nobel Prize For Trump, Bolsonaro, Modi – Truly Deserved!

by

P.S.Sahni

An emergency meeting of the 50-member Nobel Assembly at Karolinska Institutet, Stockholm – responsible for the selection of Nobel laureates in physiology or medicine – is having grave deliberations.

Chairperson: An unprecedented situation has arisen after we received an email from the aforesaid aspirants for the Nobel Prize; the rules do not allow nomination by the potential laureates. I beseech the wisdom of this assembly to tide over the crises bigger than the COVID-19 pandemic itself!

Member 1 (M1): Sir, the situation being delicate – what with the background of these three characters – it is best if we go about the proceedings in a dispassionate manner.

M2: Sir, the credentials of the aspirant from India states that he was instrumental in dispatching the drug Hydroxychloroquine (HCQ) to about 100 odd countries to save the lives of hundreds of thousands of people. Secondly, he submits that he has allowed the production and stockpiling of Oxford vaccine (backed by British government) at Pune, India at the very centre where Phase II, III, IV clinical trials of this vaccine are still in progress! Additionally he has dispatched paracetamol medicine to many countries for control of fever in COVID-19 infection! Besides he is said to be the original proponent of social distancing; sir, he has socially distanced himself from his better half for decades. Speaks volumes for his sacrifice. He faces a crucial provincial (Bihar) election in October 2020; would love to conquer Bihar close on the heels of the announcement of the prize.

M1: Sorry for the interruption but it needs to be pointed out that even the World Health Organization has concluded that HCQ is useless and dangerous when given to patients with serious pneumonia. On this ground alone the prize cannot be awarded. Secondly sir, while it is courageous for this aspirant to allow production and stockpiling of the vaccine even before the trials are successfully completed, what if the results of these trials are anything but? Thirdly, around 80,000 doctors, nurses, voluntary workers in India alone have got infected with the virus even though health care service providers are given HCQ as a government policy. Clearly HCQ does not have even a preventive role.

M3: I am aware, sir, of the way things get done in India. You can be sure that results of the trial would be as required by the Oxford University and Astra-Zeneca. The British PM has himself put in a word to his Indian counterpart. Moreover the institute undertaking the trial has had a call from Bhai log (mafia) in Mumbai that the trials have to be shown to be successful. So there should be no doubt on this score. For the uninitiated Bhai log are more feared than the Italian godfathers and resourceful too! A negative point though, is that the aspirant from India was accused of genocide of Muslims in Gujarat in 2002 though the judiciary gave him a clean chit later! After being denied visa for visit to USA for over a decade Trump personally invited Modi and embraced him in pre-COVID times!

M4: Sir, the aspirant from USA asserts that he should be lauded for projecting the COVID-19 infection – right in the beginning of the pandemic – as a simple flu. This ensured that mass depression and suicides got avoided in USA – a no mean achievement during the nation’s hour of greatest crises. Like the aspirant from India he too, had been a strong votary of HCQ. Rumours have it that he himself had consumed this medicine for prevention of infection. In fact his concern for the people of his country can be gauzed from the fact that he had threatened to bomb India to Stone Age at a time when Modi had dared to put an embargo on the export of this drug for a few days. Sir, we have to appreciate the spirit of this character and the passion with which he steered the country through this pandemic. Remember, too, he could pressurize Modi – who never tires of reminding all and sundry that his chest circumference measures 56 inches – to lift the embargo on HCQ. The aspirant has tagged a few recommendatory letters from dozens of women who cheerfully testify to his virility in all honesty. Moreover, sir, he faces a re-election in the first week of November; his name being declared in October as per our protocol would steer him through the tumultuous electoral process! Keep in mind sir, that this time Russia may not be able to manipulate the elections in USA through social media. Our little bit of help would get him past the goal post. If we don’t, he may resort to the usual tactics – imposing sanctions, tariffs; what is more he may bomb the Nobel assembly at Karolinska Institutet, Stockholm out of existence!

M5: Sir, let me brief this august gathering on the third aspirant: you have to admire the bravado of the Brazilian president; Bolsonaro has been moving around publicly throughout the length and breadth of the country often without as much as a mask and occasionally hugging the populace at public places. Never mind that all this has resulted in Brazil having the second highest number of COVID-19 cases in the world but the risk he took personally cannot be ignored. Besides he is the original propagator of HCQ which he prefers to call by the Hindu mythological connotation of being Hanuman ji’s sanjeevni buti. Such creative and innovative mind would be hard to locate in CDC, Atlanta, USA. I wish to bring to your notice that Father Damien worked amongst leprosy patients and contracted leprosy; likewise sir, Bolsonaro contacted COVID-19 infection in July 2020 purely because he dared to mingle with the Brazilian people when they were in need of emotional support. This selfless act of Bolsonaro qualifies him to be an aspirant.

M6: What if in spite of the best efforts of Bhai log in India the results of Phase II to IV point towards the vaccine being useless.

M7: Sir, once we have given the award to these three aspirants we need not worry if the Oxford vaccine discovery is found to be bogus. Remember sir, that in the year 1926 we had awarded a Nobel Prize in medicine to Johannes Fibiger which was later found to be a discovery of dubious nature. So we have a precedence to fall back upon. We shouldn’t worry about such niceties.

M8: Sir, in any case in Putin’s Russia the vaccine has not only not completed the full mandatory trials but has also been produced and stockpiled. In fact people have even been vaccinated with this new vaccine. One of Putin’s close relative has received a shot and Putin insists that all is fine. Luckily for us at the Nobel Prize committee Putin has not projected himself as an aspirant to the Nobel Prize. You know sir, how these wretched communists – present and erstwhile – look at the Nobel Prize, to wit, an instrument of decadent western capitalist world order. Same goes for China where the vaccine trials are in an advanced stage. Before I end my statement I wish to chip in – and we must collectively confess in this august gathering – that at the behest of USA and western Europe we have used the Nobel Prize to create dissenters within the iron curtain countries in the past. This was in line with the long term objective of the west to have a communist-mukt world order.

Chairperson: I have given a patient hearing to the worthy opinion of the members of this assembly; yet I must express myself clearly that I feel strongly that the soul of Alfred Nobel would never rest in peace if the likes of Trump were to be bestowed with the Nobel Prize in medicine. The very thought is discomforting to me.

Dissenting member: Since this is a closed door meeting and our corporate press will never get wind of the ongoing proceedings here – which as per protocol are kept secret for 50 years in any case – let the truth be out. I have no hesitation in reminding you that Alfred Nobel made his money out of the invention of dynamite and an explosive device called a blasting cap which inaugurated the modern use of high explosives. Sir, dynamite has created more death and destruction in this world than all the havoc caused by the USA in the two dozen odd countries which it had invaded since World War II for a variety of reasons viz oil; regime change; locating non-existent weapons of mass destruction; defeating communism and at times even to win presidential elections within USA not to speak of enlarging the business of the MNCs manufacturing war weaponry. So if Trump shares this prize, Alfred Nobel’s soul is more likely to rest in peace permanently. I think your fears are totally unfounded. We will be able to kill two birds with one stone if the name of the Indian aspirant stays included; do you recall that the name of the company started by Alfred Nobel for manufacture and sale of weapons including canons and other armaments. Yes, I am referring to Bofors – which put the grand old Indian National Congress (INC) in disrepute for decades. Poetic justice would be done to the Indian aspirant. Besides, letting him share the award would provide ammunition to the INC to regain its lost political hold. You may announce the award jointly to the three aspirants at the scheduled ceremony in October – the month earmarked as per the protocol of the Nobel Committee.

Namaste!

Dr. P. S. Sahni is a member of PIL Watch Group & ABVA.

First published: https://countercurrents.org/2020/09/covid-19-pandemic-a-joint-nobel-prize-for-trump-bolsonaro-modi-truly-deserved/

Revisiting Krishna Iyer’s Treatise on Bail – Part II: In the Context of the Cases of Umar Khalid & Others

 

Revisiting Krishna Iyer’s Treatise on Bail – Part II

In the Context of the Cases of Umar Khalid & Others

 

Benjamin Cardozo and Lord Camdon have brought to the fore as to what constitutes judicial discretion used by judges in the context of bail:

“The judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight – errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.” —Benjamin Cardozo[1]

and

“..the discretion of a judge is the law of tyrants: it is always unknown. It is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is often times caprice; in the worst, it is every vice, folly and passion to which human nature is liable …”—Lord Camdon[2]

Js. V.R. Krishna Iyer and Js. D.A. Desai through their judgement dated 31.01.1978 in Babu Singh and Others V. The State of U.P.[3] gave a scientific orientation to the crucial issue of bail. These judges accepted that hitherto the ferocity of the crime had eclipsed the real purposes of bail or jail; that other sensitive and sensible circumstances were ignored, and that the fate of applicants for bail in the higher judiciary had largely hinged on the hunch of the bench as on expression of judicial discretion.

The personal liberty of an accused or convict is fundamental as enunciated in Article 21 of the Constitution of India: No person shall be deprived of his life or personal liberty except according to procedure established by law, it can be denied only by procedure “established by law”. The last four words of Article 21 are the life-force of that vital human right.

The fundamental and constitutional right of bail is available to those accused, charged or convicted. The object to keep a person in judicial custody pending trial or disposal of an appeal is primarily to ensure the attendance of the person at trial. That’s the crux. Lord Russel, C.J. ruled:

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."[4]

This theme was developed by Lord Russel of Killowen C. J., when he charged the grand jury at Salisbury Assizes, 1899:

"....it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial.”[5]

In Archbold it is stated that:

"The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial ..”

Umar Khalid & Others are hardly the sort of people who if given bail would not make themselves available for trial. They are unlikely to take the first flight to Timbuktu upon release on bail and disappear. It is in their interest to get over with the trial fast. But they are the victim of the slow motion of the justice system – precisely the right candidate for bail.

Js. Krishna Iyer simplifies the guiding principle for those emotionally charged and are won’t to say goodbye to logic and common sense when bail is being prayed:

“The principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgement and serve sentence in the event of the court punishing him with imprisonment.”

Umar Khalid & Others don’t have a bad record – particularly a record which suggests that they are likely to commit serious offences while on bail. They are not habitual offender. They qualify for bail on this count too.

Js. Krishna Iyer makes an impassioned plea for public justice:

“It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted.”

Umar Khalid & Others have prayed for bail so that they can prepare a better defence of himself. It is a fair enough ground for his bail.

Justices Krishna Iyer and Desai elaborate:

“The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.”

“Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’., whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in … the innocent being absolved from the inordinate ordeal of criminal proceedings.”

The trial would take a very long time as the Prosecution intends to examine 800-900 witnesses. So there is no likelihood of the conclusion of the trial in the foreseeable future. During this period Umar Khalid & Others will continue to languish in jail!

Why should Umar Khalid & Others be denied bail when the trial will take years to conclude. If the legal system cannot assure that the trial would be completed fast why deny bail and liberty to the accused.

Forget Umar Khalid & Others for a moment. They are just accused. Juxtapose it with what even those already convicted by a court stand to avail if they go in appeal. This weighty issue has been dealt at length by Js. Bhagwati in his judgement dated 02.09.1977 in Kashmira Singh V. The State of Punjab[6]. The rationale of this practice – not to release on bail a person who has been sentenced to life imprisonment – could have no application where the Court is not in a position to dispose of the appeal for five or six years.

Js. Bhagwati makes it crystal clear that:

“It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him.”

Js. Bhagwati then proceeds on to raise five important questions:

1. Can the Court ever compensate him for his incarceration which is found to be unjustified?

2. What confidence would such administration of justice, inspire in the mind of the public?

3. Would a judge not be overwhelmed with a feeling of contribution while acquitting such a person after hearing the appeal?

4. Would it not be an affront to his (judge’s) sense of justice?

5. Of what avail would the acquittal be to a person who has already served out his term of imprisonment or at any rate a major part of it?

Remember that Js. Bhagwati was dealing with the bail plea of a person convicted of murder and sentenced to life imprisonment by the High Court who had come in appeal to the Supreme Court. Yet he was granted bail till the disposal of the appeal which could have taken a few years. Remember again that the cases Umar Khalid & Others are under trial. Far from being convicted even the trial is getting inordinately delayed. Their bail applications should justifiably be allowed.

[Shobha Aggarwal is an advocate and Jt. Secretary, Public Interest Litigation Watch Group. Part I of this article appeared in SACW on 13.05.2014 See: India: Revisiting Krishna Iyer's Treatise on Bail In the Context of Tejpal’s Case - South Asia Citizens Web]

[1] The Nature of Judicial Process – Yale University Press (1921)

[2] (I Bovu. Law Dict., ‘Rawles’ III Revision p. 685- quoted in Judicial Discretion – National College of the State Judiciary, Reno, Nevada p.14).

[3] All citations in this article are from this Supreme Court’s judgement reported at 1978 AIR 527; 1978 SCR (2) 777; 1978 SCC (1) 579

[4] R.v. Rose 1898-18Cox CC. 717: 67 LJOB 289- quoted in ’The granting of Bail’, Mod. Law Rev. Vol. 81, Jan 1968 p. 40, 48

[5] (1899) 63 J. P. 193, Mod. Law Rev. p. 49

[6] 1977 AIR 2147

 

ABVA's twitter account suspended

Activists in India are alarmed at ABVA's twitter account being suspended. Here is the message received:

OPEN LETTER TO ELON MUSK

 

When your friend Donald Trump makes a false statement that Indian economy is dead you don’t suspend his twitter account.

If ABVA makes a factual statement that Indian economy is one of the fastest growing economies in the world you suspend ABVA’s twitter account

NO THANKS

(Attached is the email sent by twitter indicating ABVA account being suspended).

OPEN LETTER TO PHILOSOPHER STATESMEN OF THE WORLD

Martha Nussbaum, Cornel West, Jürgen Habermas, Amartya Sen, Slavoj Žižek, Noam Chomsky

 

Respected Madam/Sir,

 

Two powerful nations viz U.S. and Russia have brought humanity on the verge of WW-III with declared preference for nuclear war. We appeal to you to offer sagacious advice internationally to both to desist from global nuclear annihilation.

 

Thanks,

Appeal issued by Public Interest Litigation Watch Group, New Delhi, India