Open Letter To Rahul Gandhi

 Respected Sir,

 

Karnataka State Assembly election results have shown that BJP can be given a devastating defeat. We had written two open letters addressed to you dated 11.06.2017 and 23.03.2023.  We repeat what we had written two months back.

 

Presently the political environment in India needs an extraordinary sacrifice from you for a much higher calling i.e. to publicly announce:

 

·        that you would not be the Indian National Congress candidate for Prime Ministership,

·        that you would spend all your energies till 2024 General Elections to try getting opposition parties to fight elections unitedly; that this united opposition will pitch only one candidate against the ruling party’s official aspirant in all constituencies of the country,

·        that a broad based committee having representatives from each of the political parties – howsoever small – would oversee that this process is set in motion and reaches its mandated conclusion, and

·        that the Indian National Congress party will exhibit an attitude which makes it clear that it is not bigger than any of the constituents of this united opposition.

 

This would ensure that any political leader with experience could aspire to become the Prime Minister of India – both from within the Indian National Congress Party or any opposition party were the united coalition to win in the 2024 General Elections.

 

This strategy would ensure that all non-BJP parties would unite to defeat the fascist forces in power.

 

Thanks.

Yours Sincerely,

Shobha Aggarwal & P.S. Sahni

PIL Watch Group

Why Can’t the Constitution Bench Hearing Same-sex Marriage Pleas Concurrently Also Hear Kashmir Petitions?

 

by

Shobha Aggarwal

 

Tension between Executive and Judiciary is healthy for democracy.   According to Lord Woolf “the tension is acceptable because it demonstrates that the courts are performing their role of ensuring that the actions of the Government of the day are being taken in accordance with the law. The tension is a necessary consequence of maintaining the balance of power between the legislature, the executive and the judiciary.”

 

In India at present the ostensible tension between the Executive and the Judiciary is by and large superficial. What is apparent in fact is that Supreme Court of India (SC) is indulging in masterly inactivity in cases the judgement whereof may embarrass the government of the day. Such a scenario is dangerous for the democracy. It is also dangerous for the democracy when the top court of the country picks and chooses constitutional cases it would finally adjudicate without regard to the fundamental principle of first come first served. In not too distant past during the Internal Emergency (1975-77), the Supreme Court of India abdicated its constitutional mandate to protect the fundamental rights of the citizens of India and the same spectre is visible again to perceptive observers.

 

A constitution bench of the SC on Tuesday, 18 April 2023 started hearing arguments on the petitions pending before it on the issue of same-sex marriage etc. The first such petition was filed in the Supreme Court in November 2022. The question that arises: why is the alacrity shown by the SC in listing the same-sex marriage petition filed as recently as November 2022 not shown for all the constitutional matters filed prior to it?

 

In 2019 after the abrogation of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir (J&K) into two Union territories by the Central Government many petitions were filed in the Supreme Court challenging the same. (Kashmir petitions for short). A five-judge bench of the Supreme Court had declined to stop the Centre from carving out two centrally-administered union territories (UTs) out of Jammu and Kashmir. I was present in the Supreme Court on 1 October 2019 when Justice S.K. Kaul had said in the open court that the SC could always “turn the clock back”. However the petitions have not been listed for hearing after 2 March 2020 when a five judge constitution bench of the Supreme Court declined to refer the petitions to a larger bench. Since then the matters have been mentioned before the Court many times for urgent listing but not taken up so far.

 

In the meanwhile many administrative, executive and legislative steps have been taken by Government of India in J&K which will in times to come change the whole ethos of Kashmir society. On 13 February 2023, a division bench of the Supreme Court presided over by S.K. Kaul, J. dismissed a challenge to the constitution of the Jammu and Kashmir Delimitation Commission to readjust constituencies in the new Union Territory. This was an opportunity to at least freeze the clock if not turn it back. Was this a signal to the people of Kashmir that the Supreme Court will not adjudicate the constitutionality of the abrogation of Article 370 and bifurcation of the state of Jammu and Kashmir as it as a hard case to decide and that it will simply shove the matter under the carpet till such time that the legality and constitutionality of these actions become academic? If the Supreme Court had the will to decide the Kashmir petitions it could have done that any time. In fact “eleven different cases were heard and disposed off through virtual hearings by a constitutional bench constituted during COVID-19 times, ...” (The Wire, 25.05.2022) 

 

If the Kashmir petitions were to be decided as per law and constitution the people of J&K are likely to get justice. In my humble opinion the SC judges – if they adjudicate the petitions will have no option but to strike down the Presidential Orders abrogating Article 370 and The Jammu and Kashmir (Reorganisation) Act of 2019. If not, the future historians may compare them to the judges in the ADM Jabalpur case.

 

Contrast this with the same-sex marriage petitions which are being heard out of turn. Were the Supreme Court to grant rights of marriage, adoption etc to LGBTQIA community, it would be projected as a liberal court to the whole world. India would then become one of the few countries which grant these rights to LGBTQIA community. Such an image is beneficial to the Indian Government as it projects India as a liberal democracy to the world – the opposition to the same-sex marriage petitions by the Union of India in the court notwithstanding. Let’s not forget that “ 2023 V-Dem report refers to India as “one of the worst autocratisers in the last 10 years” in a blurb on page 10 and places India in the bottom 40-50% on its Liberal Democracy Index at rank 97. India also ranks 108 on the Electoral Democracy Index and 123 on the Egalitarian Component Index.”(The Wire, 07.03.2023)

 

It is my ardent hope that the present Chief Justice of India would not let history repeat itself. During the Internal Emergency it was the liberty of citizens of India which was at stake, this time around inter-alia it is the liberty of the people of Jammu and Kashmir. They should not be kept in a limbo for an infinite period of time. The same constitution bench that is hearing same-sex marriage petitions should – after the final arguments are over in the latter petitions – immediately hear the Kashmir petitions.

 

Post Script: (1) Lest someone think that I am not sensitive to LGBTQIA rights I may state for the record that I am a member of AIDS Bhedbhav Virodhi Andolan (ABVA) since its inception in 1988-89. ABVA had brought out the first Citizens’ Report on the status of homosexuality in India in 1991 titled “Less than Gay”. The report included a Charter of Demands which inter alia asked for full repeal of Section 377 of Indian Penal Code as well as marriage and adoption rights for the LGBTQIA community. In 1994 ABVA filed the first petition in India in the Delhi High Court asking for striking down of S. 377 in toto. The petition was filed by ABVA through me as none of the other ABVA members were willing to take the risk. All the known LGBTQIA activists were too scared to lend their names then. In fact no other NGO till 2001 joined our endeavor. Since 1991 I have along with ABVA consistently campaigned for gay rights.

 

(2) In an earlier piece written on 04.08.2020 in Countercurrents.org I had reasoned why Justice S.K. Kaul should recuse himself from hearing Kashmir petitions. I had then hoped that the petitions would be heard soon. It didn’t happen. Now that Justice Kaul is due to retire on 25.12.2023, he could be part of the bench as I don’t want to be seen to be depriving him of putting the clock of history back in Kashmir – even if it is by way of a dissenting judgement!!!

 

[Shobha Aggarwal is a lawyer based in Delhi. Email: pilwatchgroup@gmail.com]

Open Letter To Rahul Gandhi, Indian National Congress Party

 Respected Sir,

 

Through the Bharat Jodo Yatra – Kanyakumari to Kashmir – you have made meaningful contacts with the vast multitudes of people of India. Only rare politicians have had the urge and energy to undertake this pilgrimage.

 

You have rightly not allowed your time to be wasted in reciprocating to the name calling indulged in by the right wing forces inimical to you over the last 8 to 9 years. The name calling only reflects their utter insecurity; it is a phobia which haunts them particularly since you refuse to be drawn to their level of political discourse. This further infuriates them.

Hence their rhetoric ‘Congress Mukt Bharat’!

 

People recall that you and your family have personally and publicly forgiven the assassins of Mr. Rajiv Gandhi; so forgiving these name-callers comes naturally to you. The nation remembers the services and sacrifices of both Mrs. Indira Gandhi and Mr. Rajiv Gandhi who achieved martyrdom. These two examples symbolize highest form of nationalism. Equally true Mahatma Gandhi’s assassination resulted out of extreme abhorrence of secularism. 

 

The mentors of Indian National Congress include Jawaharlal Nehru who was in the forefront of the struggle for freedom from British colonial rule and was jailed for about 9 years. Your tormentors cannot come to terms with the fact that a right wing ideologue of majoritarian theocratic state wrote about half a dozen mercy petitions to the British rulers. Yes, indeed asking for mercy!

 

People of India remember how your mother sacrificed her imminent Prime Ministership in favour of Mr. Manmohan Singh. Presently the political environment in India needs an extraordinary sacrifice from you for a much higher calling by publicly announcing:

 

·        that you would not be the Indian National Congress candidate for Prime Ministership,

·        that you would spend all your energies till 2024 General Elections to try getting opposition parties to fight elections unitedly; that this united opposition will pitch only one candidate against the ruling party’s official aspirant in all constituencies of the country,

·        that a broad based committee having representatives from each of the political parties – howsoever small – would oversee that this process is set in motion and reaches its mandated conclusion, and

·        that the Indian National Congress party will exhibit an attitude which makes it clear that it is not bigger than any of the constituents of this united opposition.

 

Through your padyatra you have shown that in a democracy people are supreme. In consonance with the constitutional enunciation of “WE, THE PEOPLE …” sir, you have won the hearts of the people. Now ensure that their political energies are channelized in a direction which would ensure negation of one-party rule.

 

Yours Sincerely,

P. S. Sahni & Shobha Aggarwal

PIL Watch Group

Hindu Rashtra, Khalistan & Indian State – Questions Before Home Ministry

 The PIL Watch Group watches with concern the events unfolding in Punjab. Consequent to the opinion expressed publicly by the police officials, central intelligence agencies, public figures on the recent developments in Punjab pertaining to release of an accused from judicial custody ostensibly due to protest demonstration (at Ajnala police station, near Amritsar) organised by a newly formed outfit ‘Waris Punjab de’, the following questions arise:

 

1.     Is it a fact that the spokesperson of ‘Waris Punjab de’asked: (Quote)

 

Why is it wrong for a Sikh to demand Khalistan if advocacy of Hindu Rashtra is not punished (The Times of India, 26.02.2023)

 

2.     Is it a fact that a dossier is being compiled on the activities/utterances of ‘Waris Punjab de’ head over the last six months or so by the Punjab Police, central agencies?

 

3.     Have such dossiers been compiled about organisations/individuals espousing the cause of Hindu Rashtra – contrary to the concept of a democratic, secular, republic of India as enshrined in the Constitution of India? Would these names be made public as was done for ‘Waris Punjab de’?

 

4.     Has the Union Home Ministry’s attention been drawn to the statement of  Mr. Satya Pal Malik, former Governor of Jammu and Kashmir, Goa as also of Meghalaya to the effect: (Quote)

 

There is a need to control this Hindu Rashtra rhetoric (Indian Express, 25.02.2023)

 

5.     What action, if any, has been taken/envisaged by the Union Home Ministry vis-à-vis the suggestion of Mr. Satya Pal Malik?

 

6.     If no dossier has been compiled on organizations/individuals who espouse the cause of majoritarian theocratic state, would it not lend credence to the view that different yardsticks are applied to majoritarian/minority transgressions of provisions of Indian Penal Code and Indian Constitution?

 

7.     Has the Union Home Ministry noticed the cause and effect inherent in the ‘Waris Punjab de’ statement:(Quote)

 

…agar Hindu Rashtra ki baat chalegi, to Khalistan ki baat kyon nahin chalegi. (Indian Express, 25.02.2023)

 

8.     Would the Union Home Ministry make it clear that transgressions of the constitutional provisions of a secular Republic have no place in modern democratic India?

 

9.     Would the Union Home Ministry re-iterate that genuine Federalism would be the guiding principle to negate the perception in some minds that over-centralised governance is being forced/favoured by a few at the top?

 

10.                        Has the Union Home Ministry read media reports/views to the effect: (Quote)

 

… growing narrative around a Hindu Rashtra pushed by elements with links to RSS-BJP. This further plays into the insecurity among Sikhs over its implication for minorities like them. (Indian Express, 25.02.2023)

 

Decades earlier Parliament Street of New Delhi would reverberate – during protest demonstrations – with the slogan:

 

‘Na Hindu Rashtra, na Khalistan

  Ek Rehega Hindustan’

 

Concerted efforts are needed to ensure a united secular Republic of India.

 

PIL Watch Group

Time Is Ripe For Indian Parliament to Abolish Death Penalty

 

The PIL Watch Group views with concern the death penalty handed over to 38 convicts - all Muslims - reported to be in relation to 56 deaths in the 2008 bomb blasts case in Ahmedabad, India. The judgement was delivered by a special court. It is hoped that the higher judiciary would revert the death sentences to imprisonment. Globally developed democracies have been rethinking on this crucial issue. The trend is towards abolishing death penalty and moving towards reformative prison sentence. The U.N. has taken a stand against the capital punishment. Most countries have abolished it. India is one of the few countries to have execution law in its statute book.

 

The Indian Supreme Court has veered towards bringing an end to this ‘judicial murder’. It is for Parliament to take a call with an open and dispassionate mind; the issue has been debated earlier in 2004 in Parliament after which executions virtually came to a halt till 2012.

 

Since the last decade (2012-22) PIL Watch Group has been building public opinion against capital punishment irrespective of the crime for which the cases were lodged. The Group started campaigning against death sentence in December 2012 while there was a clamour to award capital punishment to rape convicts. For full two years we campaigned at the national protest site at Jantar Mantar, New Delhi, India right amongst those who were clamouring for the blood of the rapists of ‘Nirbhaya’. We circulated leaflets giving reasons why capital punishment should be abolished and which countries have already done so. It was painful to see fellow activists – otherwise co-travellers in many a campaign – on the other side of the fence.

 

The irony is that it is the people from oppressed castes; religious minorities especially Muslims; and tribals who face the gallows in India. Worse, most of those hanged belong to the economically weaker section of the society.

A concerted campaign to bring an end to judicial executions is the need of the hour.