India politics thread
- Thread starter Shiva87
- Start date
He got shown up in this battle against Kejrewal where he was the face of the campaign. His first outing as the election torchbearer went pretty poorly.
It's a good omen then. Will be back in India and will join Tamil Nadu aap.. viable alternative bitch
So BJP scored 5 extra seats this time. That's a pretty good return. 1 seat each for the efforts of Dear Leader, Goebbels and Vin Diesel. 2 seats for the efforts of the other scoundrels.
Also happy that vile fake news merchant Bagga lost
Also happy that vile fake news merchant Bagga lost
I don't think this will reflect nationally though will it?
Justice AP Shah: ‘Freedoms on unsteady ground, made to doubt whether SC able to protect our rights’
The former chief justice of Delhi High Court delivered a scathing indictment of recent Supreme Court orders.
We are marking 70 years of the coming into force of the Constitution, just as we are marking 70 years of the establishment of the Supreme Court too. In 1952 itself, in State of Madras v VG Row, the Supreme Court assumed for itself the role of the sentinel on the qui vive (meaning “on the alert” or “vigilant”), in defence of citizens’ fundamental rights. Later, Justice Bhagwati observed in State of Rajasthan v. Union of India that the Supreme Court is the ultimate interpreter of the Constitution, and it is for the Supreme Court “to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of rule of law.”
The Supreme Court and our freedoms
But then there are instances where freedoms that we have taken for granted are on unsteady ground, and where we are being made to doubt whether the Supreme Court is actually able to protect our rights at all or not. It is disturbing and unfortunate that we should still be asking questions of this kind, but some recent judgements and orders prompt such reflection. These judgements beg us to ask if the sentinel remains on the qui vive after all. I will be discussing some of these judgements in this section.
Sabarimala
One area where the Court’s decision making is coming under intense scrutiny is in the realm of personal liberty and religious freedoms. In 2018, the Supreme Court in a progressive judgment, permitted the entry of women into the Sabarimala Temple in Kerala. The judgment, however, became controversial, and faced some problems with implementation.
Notably, a senior Union Minister criticised the Kerala Government for implementing the Court’s judgment, saying that in “Sabarimala, nation has seen a fight between dharma, belief and bhakti on the one side and an oppressive Kerala government on the other” and that the BJP stood firmly with the Ayyappa devotees. There should have been no controversy or doubt regarding the implementation of the Supreme Court’s judgment, especially since no stay had been granted; but the Central Government’s actions seemed to raise the spectre that the judgment was not final.
Immediately after the judgment was passed, review petitions were filed. However, in November 2019, while hearing these review petitions, the Supreme Court passed a curious order in Kantaru Rajeevaru v Indian Young Lawyers Association, directing that the Sabarimala review petition as well as other writ petitions – concerning the entry of Muslim women in a Durgah/Mosque, entry of Parsi women married to a non-Parsi into the holy Agyari, female genital mutilation in the Dawoodi Bohra community – remain pending until the determination of the questions (formulated by the majority) by a larger bench, to be constituted by the Chief Justice. Notably, the review petition itself was not referred to a larger bench and was only kept pending till the adjudication of the referred questions by the larger bench.
The majority’s order in the Sabarimala review petitions seems to be beyond the scope of Article 137 of the Constitution. Review powers are used rarely, only when there is an error apparent on the face of the record, or a glaring omission or mistake. A review is not an appeal or a fresh consideration of a case. However, in Kantaru Rajeevaru, the Court directed a fresh hearing of the Sabarimala matter, by a larger Bench, without any reasons for the review, and without pointing out any grave errors in the judgment under review.
The order did not even endorse Justice Malhotra’s dissent in the original Sabarimala judgment. Instead it tagged the Sabarimala matter with other pending cases that raised common issues regarding the interpretation of Article 25 and 26, even though those cases were not before the Court.Strong dissents were recorded by Justices Nariman and Chandrachud to this reference.
While passing the referral order, the majority did not pass any order staying the operation of the main judgment. Earlier, in November 2018 itself, the five judge bench had also refused to grant a stay.
In these circumstances, it is peculiar, and unfortunate, that in December 2019, the Supreme Court declined to pass any order on the petition by two women activists seeking a direction to ensure safe entry in the Sabarimala temple on the ground that the issue was “very emotive”; it did not want the situation to become “explosive”; and that despite there being no stay, the fact of the referral meant that the judgment was “not final”.
The Supreme Court has often been characterised as supreme (in the sense of final), but not infallible. The Court’s order in Kantaru Rajeevaru has now upended the assumptions about its judgments being final.
The aftermath of the Sabarimala judgment has given rise to various causes of concern, including the impunity of the Central Government in ignoring the judgment of the Supreme Court, the re-opening of the judgment through a referral in the guise of a review, and the implications for the rule of law.
Ayodhya
The issue of rule of law and finality arose once again in the Ayodhya judgment, where the Court tried to give legal quietus to an essentially political issue.
The Court’s judgment was unanimous, but anonymous. Contrary to judicial practice, the name of the judge who authored the unanimous opinion was absent. Even more peculiar was the 116 page anonymous “addendum” to the judgment, that sought to reinforce and reiterate the “faith, belief and trust of the Hindus” that the “disputed structure is the holy birthplace of Lord Ram”. The need for this addendum is highly questionable given that the bench had already unanimously decided the case on constitutional principles, and the addendum was not serving the role of a concurring opinion. Instead, the addendum seems to reinforce the supremacy of Hindu theological considerations.
A key issue that arose in this judgement was the issue of equity. The Supreme Court was of the view that the Allahabad High Court’s decision to divide the property into three parts was not “feasible” in view of the need to maintain peace and tranquillity.
However, whether the Supreme Court’s judgment resulted in complete justice is questionable since it still seems like despite acknowledging the illegality committed by the Hindus, first in 1949, by clandestinely keeping Ram Lalla idols in the mosque, and second, by wantonly demolishing the mosque in 1992, the court effectively rewarded the wrongdoer. This goes against the doctrine of equity, which requires you to approach the Court with clean hands.
Given the Court’s findings, one wonders if the mosque had not been demolished, would it still have been given to the Hindus?
The issue of impunity, discussed in the context of (non)-implementation of the Sabarimala judgment and the failure of the Court to ensure safe passage of women devotees, comes up once again in Ayodhya.
Relying on the tenor of the Court’s decision – which recognises the illegality of the demolition of the Babri Masjid, but does not act on it – the Hindu Mahasabha has begun pressing for the withdrawal of criminal cases against the kar sevaks involved in the demolition in 1992, and involved in the ensuing violence. Not only that, it is also demanding that the kar sevaks be given government pensions and their names be listed in the temple that will eventually be built on the site of Babri Masjid.
The Vishwa Hindu Parishad, not to be left behind, states that it will make similar claims in respect of 3,000 other mosques. Whether the Supreme Court’s assurances that the Places of Worship Act imposes a non-derogable obligation towards enforcing India’s constitutional commitment to secularism will amount to anything in practice or will the judgment only serve as a shot in the arm for the Hindus, will depend in part, on the Court’s ability to ensure the proper enforcement of its judgment. More fundamentally, though, does this judgement actually strengthen or even sustain secularism at all?
Beyond this, is the question of actual implementation of the judgement. I am inclined to agree with Madhav Godbole, former Home Secretary in this regard. He asks whether giving five acres of alternate land to Muslims for constructing a mosque is the most appropriate or adequate compensation. He also asks, what happens to the psychological hurt caused to the Muslims by destroying this place of worship? In an ideal situation, he says, the Court should have asked the state and central governments to rebuild the mosque.
Indeed, PV Narasimha Rao, the prime minister when the mosque was demolished, had announced this in Parliament, and later wanted it fulfilled. The Gujarat High Court, too, has ordered compensation for wherever religious buildings – mainly mosques – were damaged during the riots. Instead of providing a simpler solution, the court has complicated the implementation and enforcement process.
Kashmir
The Supreme Court’s orders on Kashmir represents a missed opportunity for the Court to come out strongly in favour of fundamental rights, and fulfil its role as the sentinel on the qui vive.
Three sets of petitions relating to Kashmir were filed before the Court. The first related to the communication shutdown and Section 144 orders (prohibiting public gatherings) that were imposed on August 5, 2019. The second set related to the habeas corpus petitions that were filed against the illegal arrests and detentions of individuals, including minors, under the draconian Public Safety Act. The third set relates to the constitutional challenge to the government’s decision to amend Article 370 of the Constitution and breaking up the State of Jammu and Kashmir into Union Territories.
In all three cases, the Court has failed to give a satisfactory resolution, even after six months. For the purpose of this speech, I want to primarily focus on the internet shutdown case (Anuradha Bhasin), which was finally decided in January.
The Court’s judgment is laudable in many respects – it directed the government to publish all orders, present, and future, authorising the suspension of the internet/landline services and prohibiting public gatherings. It rejected the government’s argument that national security considerations precluded judicial review. It also gave constitutional protection to the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet. Though it did not go as far as to declare the right to access the internet a fundamental right. Most importantly, the Court made it clear that an indefinite suspension of internet services is patently unconstitutional.
Unfortunately, despite these observations, the Supreme Court failed to actually decide the matter. The purported reason seems to be that it did not have all the orders in front of it, and the situation was changing on the ground daily. However, this reasoning seems tenuous, when we consider that a few sample shut down orders were placed before it (with detailed arguments being made about their unconstitutionality), and the Court could have easily directed the government to file the remaining orders.
While the reliance on Lon Fuller’s famous statement that “there can be no greater legal monstrosity than a secret statute” is praiseworthy, it did not result in any practical benefit, given that the government was effectively allowed to take advantage of its own wrong of not publishing all the orders or submitting it before the Supreme Court.
After ruling that the suspension of communication services must adhere to the principles of necessity and proportionality, the Court failed to apply these principles to actually decide the legality of the communication shutdown in Kashmir.
Instead, it directed the fresh publication of all orders, with the Review Committee reviewing all these orders. The reliance on Lord Diplock’s aphorism “you must not use a steam hammer to crack a nut, if a nutcracker would do”, was, at least for the people of Kashmir, meaningless.
Judicial review involves more than a mere declaration of the law. It requires the application of law to the facts at hand. And the facts, quite simply, are that for more than 150 days, and even today, the people of Kashmir are without a proper functioning internet.
Unfortunately, the lack of an effective remedy, and the trend of judicial evasion, is also visible in the Court’s handling of other cases dealing with Kashmir. Dr Sameer Kaul, had filed a PIL before the Supreme Court seeking restoration of internet facilities in hospitals and other medical establishments in Jammu and Kashmir, highlighting how the internet shutdown was resulting in delays in accessing medical reports, delays in surgical and other medical procedures, and difficulties in accessing life saving drugs and baby food items that were mostly available online. He was told by the Supreme Court to approach the High Court to avail the appropriate legal remedy.
Similarly, another petition had been moved on behalf of the detained Communist Party of India (Marxist) leader, Mohammad Yusuf Tarigami challenging his illegal detention. The Supreme Court permitted Sitaram Yechury to visit his colleague, Mr Tarigami, only on the condition that he file an affidavit on his return and that he not engage in any political activity during the course of his visit. Subsequently, while allowing Tarigami to visit Delhi to avail of medical treatment, the Supreme Court held that the challenge to his allegedly illegal detention was not urgent, and would come up in due course.
The directions by the Court are surprising considering that a habeas corpus petition is meant to decide the legality of detention, and are not an occasion for the Court to impose conditions and place restrictions on the free movement to Kashmir. We must remember that there was no prohibition in place against visiting Kashmir, and the Court’s order had the effect of putting in place such restrictions. In doing so, the Court seemed even more executive minded than the Executive itself.
Even the PIL against the alleged reported illegal detention of juveniles and police excesses in dealing with juveniles in the context of the aftermath of the Article 370 decision in Jammu and Kashmir was disposed off on the basis of the report of the Juvenile Justice Committee of the High Court of Jammu and Kashmir, despite media reports to the contrary. The Court directed that if there was any case of illegal detention, the Petitioners were at liberty to approach the appropriate legal forum (namely the High Court) for redressal of their grievances.
These cases represent instances where, despite the urgency of the matter and the increase in the sanctioned strength of the Supreme Court, it has failed to decide these matters expeditiously. Instead it has passed the buck to the High Court, which has reportedly received over 250 habeas corpus appeals since August 5, even though it is functioning with half its sanctioned strength of 17 judges.
As the senior advocates Raju Ramachandran and Chander Uday Singh have pertinently asked, “As the Court turns 70 in a few months, is the sentinel sufficiently alert, or is it in danger of losing the plot?”
Drifting towards an executive court
Moving on, several orders of the Supreme Court, including some orders in the Kashmir matter, suggest that the role of the Supreme Court as a counter-majoritarian institution, that is, as one that seeks to keep majoritarian impulses in check, is diminishing. On the other hand, as suggested by constitutional scholar Gautam Bhatia, the Court seems to be slowly taking on attributes of the executive itself. It seems to be drifting from a rights’ court to an executive court, as Bhatia points out, behaving in a way that is indistinguishable from the government, often issuing important policy decisions through its judgements, prioritising cases in specific – and sometimes worrisome – ways, and undertaking actions that would ordinarily be considered the domain of the government.
Assam NRC
The most obvious example of this was the preparation of the National Register of Citizens, or the NRC, in Assam. The NRC was intended to tackle concerns of landlessness, migration and cultural issues in the state
The Supreme Court had already, years ago, described the illegal immigration happening in Assam by Bangladeshi Muslims as an “external aggression” and an “invasion” of India. The Supreme Court decided to ask the persons claiming citizenship of India to prove their status, shifting the burden of proof away from requiring the state to show that the person was a foreigner. As it turns out, this migration theory has been proven to be completely incorrect. Out of the 1.9 million identified as foreigners, a majority are Hindus.
Inarguably, this was an administrative exercise, which the executive and the bureaucracy ought to have been responsible for.
Instead, we had a process that was “overseen” by the Supreme Court, and primarily under Chief Justice Gogoi, although many would argue that the Court “oversaw” it less, and “controlled” it more. As a result of this, we were faced with a situation where any concerns with the NRC became impossible to challenge judicially, for the judiciary itself was conducting the process.
The burden that has been caused to millions of people as a result of the NRC process is immense, and I can vouch for this personally based on my experience as part of the Peoples’ Tribunal that studied some of the cases of those involved. These are mostly poor and illiterate people who are being made to prove that they are Indian citizens, based on documents such as of birth, schooling and land-ownership. These documents are not easy to find or put together. Even if they are put together, they are rejected for issues with the English-language spelling of Bengali names, or in ages and dates of birth. And the person is declared a foreigner.
The way the foreigner tribunal function is amazing – some official records were placed before us. These foreigner tribunals are manned by people who are appointed on yearly basis and the criteria for continuation of a foreigner tribunal member is in how many cases has he declared the person to be a foreigner. If the number is less, he will be discontinued.
Even in a hearing in the Supreme Court, former Chief Justice Gogoi asked the authorities how many people are there in a particular detention centre. They said 900. Chief Justice got furious – he said why just 900, they should be thousands in the detention centre.
This, coming from the Supreme Court of India, a rights court, do you still believe that it is a rights court? Activist Harsh Mander asked for the recusal of Chief Justice and ultimately he recused himself.
Sealed covers
And what may be travesty of the worst order, perhaps, is the Court’s new found attraction for sealed covers. Secrecy can – in limited circumstances – be justified by the executive, but the distinguishing feature of a judicial institution is transparency, for only then, can the institution assure the people that it is giving everyone a fair and equal chance to be heard.
This has happened far too often to be brushed aside as a mere idiosyncrasy of one particular judge, or a bench. It has happened in the NRC case, the Rafale case, the CBI chief’s case, and the electoral bonds case, to name but a few.
By shoving documents and facts that otherwise ought to be made public into sealed envelopes, the Court is signalling that it prefers the work ethic of the executive, believing truly that such secrecy is essential to deliver justice.
Prioritisation of cases
Another instance is the court’s worrisome practice when it comes to the prioritisation of cases. The Court found it had no time to deal with the many civil rights-related cases that were lying before it pertaining to the situation in Kashmir.
Mr Gautam Bhatia tells us about the case pertaining to electoral bonds. Electoral bonds allow private individuals and corporate entities to make donations to political parties. Reports suggest that over Rs 6,000 crore have been collected by parties under this scheme, the majority by the ruling establishment. The Supreme Court refused to stay the issuance of such bonds, and instead asked for details of the contributors to be submitted in a sealed cover, which it would assess in due course. But that assessment never came, and many elections – central and state – have happened since then.
Inaction also sends out powerful signals, as we can see in this case. This inaction also spoke louder than words when the Court found it had no time to deal with the many civil rights-related cases that were lying before it. In the case of the CAA, too, the Chief Justice of India first says petitions will be heard only after people stop violence, as though good behaviour were a condition precedent for seeking protection of rights.
Scores of petitions were filed in the month of December 2019. The whole country was polarised, and there was even violence perpetrated against peaceful protesters by state authorities themselves. In this scenario, the Supreme Court proceeds to push the matter by four weeks, instead of commencing hearings immediately. This is deeply disappointing, to say the least.
https://scroll.in/article/952775/ju...o-doubt-whether-sc-able-to-protect-our-rights
The former chief justice of Delhi High Court delivered a scathing indictment of recent Supreme Court orders.
We are marking 70 years of the coming into force of the Constitution, just as we are marking 70 years of the establishment of the Supreme Court too. In 1952 itself, in State of Madras v VG Row, the Supreme Court assumed for itself the role of the sentinel on the qui vive (meaning “on the alert” or “vigilant”), in defence of citizens’ fundamental rights. Later, Justice Bhagwati observed in State of Rajasthan v. Union of India that the Supreme Court is the ultimate interpreter of the Constitution, and it is for the Supreme Court “to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of rule of law.”
The Supreme Court and our freedoms
But then there are instances where freedoms that we have taken for granted are on unsteady ground, and where we are being made to doubt whether the Supreme Court is actually able to protect our rights at all or not. It is disturbing and unfortunate that we should still be asking questions of this kind, but some recent judgements and orders prompt such reflection. These judgements beg us to ask if the sentinel remains on the qui vive after all. I will be discussing some of these judgements in this section.
Sabarimala
One area where the Court’s decision making is coming under intense scrutiny is in the realm of personal liberty and religious freedoms. In 2018, the Supreme Court in a progressive judgment, permitted the entry of women into the Sabarimala Temple in Kerala. The judgment, however, became controversial, and faced some problems with implementation.
Notably, a senior Union Minister criticised the Kerala Government for implementing the Court’s judgment, saying that in “Sabarimala, nation has seen a fight between dharma, belief and bhakti on the one side and an oppressive Kerala government on the other” and that the BJP stood firmly with the Ayyappa devotees. There should have been no controversy or doubt regarding the implementation of the Supreme Court’s judgment, especially since no stay had been granted; but the Central Government’s actions seemed to raise the spectre that the judgment was not final.
Immediately after the judgment was passed, review petitions were filed. However, in November 2019, while hearing these review petitions, the Supreme Court passed a curious order in Kantaru Rajeevaru v Indian Young Lawyers Association, directing that the Sabarimala review petition as well as other writ petitions – concerning the entry of Muslim women in a Durgah/Mosque, entry of Parsi women married to a non-Parsi into the holy Agyari, female genital mutilation in the Dawoodi Bohra community – remain pending until the determination of the questions (formulated by the majority) by a larger bench, to be constituted by the Chief Justice. Notably, the review petition itself was not referred to a larger bench and was only kept pending till the adjudication of the referred questions by the larger bench.
The majority’s order in the Sabarimala review petitions seems to be beyond the scope of Article 137 of the Constitution. Review powers are used rarely, only when there is an error apparent on the face of the record, or a glaring omission or mistake. A review is not an appeal or a fresh consideration of a case. However, in Kantaru Rajeevaru, the Court directed a fresh hearing of the Sabarimala matter, by a larger Bench, without any reasons for the review, and without pointing out any grave errors in the judgment under review.
The order did not even endorse Justice Malhotra’s dissent in the original Sabarimala judgment. Instead it tagged the Sabarimala matter with other pending cases that raised common issues regarding the interpretation of Article 25 and 26, even though those cases were not before the Court.Strong dissents were recorded by Justices Nariman and Chandrachud to this reference.
While passing the referral order, the majority did not pass any order staying the operation of the main judgment. Earlier, in November 2018 itself, the five judge bench had also refused to grant a stay.
In these circumstances, it is peculiar, and unfortunate, that in December 2019, the Supreme Court declined to pass any order on the petition by two women activists seeking a direction to ensure safe entry in the Sabarimala temple on the ground that the issue was “very emotive”; it did not want the situation to become “explosive”; and that despite there being no stay, the fact of the referral meant that the judgment was “not final”.
The Supreme Court has often been characterised as supreme (in the sense of final), but not infallible. The Court’s order in Kantaru Rajeevaru has now upended the assumptions about its judgments being final.
The aftermath of the Sabarimala judgment has given rise to various causes of concern, including the impunity of the Central Government in ignoring the judgment of the Supreme Court, the re-opening of the judgment through a referral in the guise of a review, and the implications for the rule of law.
Ayodhya
The issue of rule of law and finality arose once again in the Ayodhya judgment, where the Court tried to give legal quietus to an essentially political issue.
The Court’s judgment was unanimous, but anonymous. Contrary to judicial practice, the name of the judge who authored the unanimous opinion was absent. Even more peculiar was the 116 page anonymous “addendum” to the judgment, that sought to reinforce and reiterate the “faith, belief and trust of the Hindus” that the “disputed structure is the holy birthplace of Lord Ram”. The need for this addendum is highly questionable given that the bench had already unanimously decided the case on constitutional principles, and the addendum was not serving the role of a concurring opinion. Instead, the addendum seems to reinforce the supremacy of Hindu theological considerations.
A key issue that arose in this judgement was the issue of equity. The Supreme Court was of the view that the Allahabad High Court’s decision to divide the property into three parts was not “feasible” in view of the need to maintain peace and tranquillity.
However, whether the Supreme Court’s judgment resulted in complete justice is questionable since it still seems like despite acknowledging the illegality committed by the Hindus, first in 1949, by clandestinely keeping Ram Lalla idols in the mosque, and second, by wantonly demolishing the mosque in 1992, the court effectively rewarded the wrongdoer. This goes against the doctrine of equity, which requires you to approach the Court with clean hands.
Given the Court’s findings, one wonders if the mosque had not been demolished, would it still have been given to the Hindus?
The issue of impunity, discussed in the context of (non)-implementation of the Sabarimala judgment and the failure of the Court to ensure safe passage of women devotees, comes up once again in Ayodhya.
Relying on the tenor of the Court’s decision – which recognises the illegality of the demolition of the Babri Masjid, but does not act on it – the Hindu Mahasabha has begun pressing for the withdrawal of criminal cases against the kar sevaks involved in the demolition in 1992, and involved in the ensuing violence. Not only that, it is also demanding that the kar sevaks be given government pensions and their names be listed in the temple that will eventually be built on the site of Babri Masjid.
The Vishwa Hindu Parishad, not to be left behind, states that it will make similar claims in respect of 3,000 other mosques. Whether the Supreme Court’s assurances that the Places of Worship Act imposes a non-derogable obligation towards enforcing India’s constitutional commitment to secularism will amount to anything in practice or will the judgment only serve as a shot in the arm for the Hindus, will depend in part, on the Court’s ability to ensure the proper enforcement of its judgment. More fundamentally, though, does this judgement actually strengthen or even sustain secularism at all?
Beyond this, is the question of actual implementation of the judgement. I am inclined to agree with Madhav Godbole, former Home Secretary in this regard. He asks whether giving five acres of alternate land to Muslims for constructing a mosque is the most appropriate or adequate compensation. He also asks, what happens to the psychological hurt caused to the Muslims by destroying this place of worship? In an ideal situation, he says, the Court should have asked the state and central governments to rebuild the mosque.
Indeed, PV Narasimha Rao, the prime minister when the mosque was demolished, had announced this in Parliament, and later wanted it fulfilled. The Gujarat High Court, too, has ordered compensation for wherever religious buildings – mainly mosques – were damaged during the riots. Instead of providing a simpler solution, the court has complicated the implementation and enforcement process.
Kashmir
The Supreme Court’s orders on Kashmir represents a missed opportunity for the Court to come out strongly in favour of fundamental rights, and fulfil its role as the sentinel on the qui vive.
Three sets of petitions relating to Kashmir were filed before the Court. The first related to the communication shutdown and Section 144 orders (prohibiting public gatherings) that were imposed on August 5, 2019. The second set related to the habeas corpus petitions that were filed against the illegal arrests and detentions of individuals, including minors, under the draconian Public Safety Act. The third set relates to the constitutional challenge to the government’s decision to amend Article 370 of the Constitution and breaking up the State of Jammu and Kashmir into Union Territories.
In all three cases, the Court has failed to give a satisfactory resolution, even after six months. For the purpose of this speech, I want to primarily focus on the internet shutdown case (Anuradha Bhasin), which was finally decided in January.
The Court’s judgment is laudable in many respects – it directed the government to publish all orders, present, and future, authorising the suspension of the internet/landline services and prohibiting public gatherings. It rejected the government’s argument that national security considerations precluded judicial review. It also gave constitutional protection to the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet. Though it did not go as far as to declare the right to access the internet a fundamental right. Most importantly, the Court made it clear that an indefinite suspension of internet services is patently unconstitutional.
Unfortunately, despite these observations, the Supreme Court failed to actually decide the matter. The purported reason seems to be that it did not have all the orders in front of it, and the situation was changing on the ground daily. However, this reasoning seems tenuous, when we consider that a few sample shut down orders were placed before it (with detailed arguments being made about their unconstitutionality), and the Court could have easily directed the government to file the remaining orders.
While the reliance on Lon Fuller’s famous statement that “there can be no greater legal monstrosity than a secret statute” is praiseworthy, it did not result in any practical benefit, given that the government was effectively allowed to take advantage of its own wrong of not publishing all the orders or submitting it before the Supreme Court.
After ruling that the suspension of communication services must adhere to the principles of necessity and proportionality, the Court failed to apply these principles to actually decide the legality of the communication shutdown in Kashmir.
Instead, it directed the fresh publication of all orders, with the Review Committee reviewing all these orders. The reliance on Lord Diplock’s aphorism “you must not use a steam hammer to crack a nut, if a nutcracker would do”, was, at least for the people of Kashmir, meaningless.
Judicial review involves more than a mere declaration of the law. It requires the application of law to the facts at hand. And the facts, quite simply, are that for more than 150 days, and even today, the people of Kashmir are without a proper functioning internet.
Unfortunately, the lack of an effective remedy, and the trend of judicial evasion, is also visible in the Court’s handling of other cases dealing with Kashmir. Dr Sameer Kaul, had filed a PIL before the Supreme Court seeking restoration of internet facilities in hospitals and other medical establishments in Jammu and Kashmir, highlighting how the internet shutdown was resulting in delays in accessing medical reports, delays in surgical and other medical procedures, and difficulties in accessing life saving drugs and baby food items that were mostly available online. He was told by the Supreme Court to approach the High Court to avail the appropriate legal remedy.
Similarly, another petition had been moved on behalf of the detained Communist Party of India (Marxist) leader, Mohammad Yusuf Tarigami challenging his illegal detention. The Supreme Court permitted Sitaram Yechury to visit his colleague, Mr Tarigami, only on the condition that he file an affidavit on his return and that he not engage in any political activity during the course of his visit. Subsequently, while allowing Tarigami to visit Delhi to avail of medical treatment, the Supreme Court held that the challenge to his allegedly illegal detention was not urgent, and would come up in due course.
The directions by the Court are surprising considering that a habeas corpus petition is meant to decide the legality of detention, and are not an occasion for the Court to impose conditions and place restrictions on the free movement to Kashmir. We must remember that there was no prohibition in place against visiting Kashmir, and the Court’s order had the effect of putting in place such restrictions. In doing so, the Court seemed even more executive minded than the Executive itself.
Even the PIL against the alleged reported illegal detention of juveniles and police excesses in dealing with juveniles in the context of the aftermath of the Article 370 decision in Jammu and Kashmir was disposed off on the basis of the report of the Juvenile Justice Committee of the High Court of Jammu and Kashmir, despite media reports to the contrary. The Court directed that if there was any case of illegal detention, the Petitioners were at liberty to approach the appropriate legal forum (namely the High Court) for redressal of their grievances.
These cases represent instances where, despite the urgency of the matter and the increase in the sanctioned strength of the Supreme Court, it has failed to decide these matters expeditiously. Instead it has passed the buck to the High Court, which has reportedly received over 250 habeas corpus appeals since August 5, even though it is functioning with half its sanctioned strength of 17 judges.
As the senior advocates Raju Ramachandran and Chander Uday Singh have pertinently asked, “As the Court turns 70 in a few months, is the sentinel sufficiently alert, or is it in danger of losing the plot?”
Drifting towards an executive court
Moving on, several orders of the Supreme Court, including some orders in the Kashmir matter, suggest that the role of the Supreme Court as a counter-majoritarian institution, that is, as one that seeks to keep majoritarian impulses in check, is diminishing. On the other hand, as suggested by constitutional scholar Gautam Bhatia, the Court seems to be slowly taking on attributes of the executive itself. It seems to be drifting from a rights’ court to an executive court, as Bhatia points out, behaving in a way that is indistinguishable from the government, often issuing important policy decisions through its judgements, prioritising cases in specific – and sometimes worrisome – ways, and undertaking actions that would ordinarily be considered the domain of the government.
Assam NRC
The most obvious example of this was the preparation of the National Register of Citizens, or the NRC, in Assam. The NRC was intended to tackle concerns of landlessness, migration and cultural issues in the state
The Supreme Court had already, years ago, described the illegal immigration happening in Assam by Bangladeshi Muslims as an “external aggression” and an “invasion” of India. The Supreme Court decided to ask the persons claiming citizenship of India to prove their status, shifting the burden of proof away from requiring the state to show that the person was a foreigner. As it turns out, this migration theory has been proven to be completely incorrect. Out of the 1.9 million identified as foreigners, a majority are Hindus.
Inarguably, this was an administrative exercise, which the executive and the bureaucracy ought to have been responsible for.
Instead, we had a process that was “overseen” by the Supreme Court, and primarily under Chief Justice Gogoi, although many would argue that the Court “oversaw” it less, and “controlled” it more. As a result of this, we were faced with a situation where any concerns with the NRC became impossible to challenge judicially, for the judiciary itself was conducting the process.
The burden that has been caused to millions of people as a result of the NRC process is immense, and I can vouch for this personally based on my experience as part of the Peoples’ Tribunal that studied some of the cases of those involved. These are mostly poor and illiterate people who are being made to prove that they are Indian citizens, based on documents such as of birth, schooling and land-ownership. These documents are not easy to find or put together. Even if they are put together, they are rejected for issues with the English-language spelling of Bengali names, or in ages and dates of birth. And the person is declared a foreigner.
The way the foreigner tribunal function is amazing – some official records were placed before us. These foreigner tribunals are manned by people who are appointed on yearly basis and the criteria for continuation of a foreigner tribunal member is in how many cases has he declared the person to be a foreigner. If the number is less, he will be discontinued.
Even in a hearing in the Supreme Court, former Chief Justice Gogoi asked the authorities how many people are there in a particular detention centre. They said 900. Chief Justice got furious – he said why just 900, they should be thousands in the detention centre.
This, coming from the Supreme Court of India, a rights court, do you still believe that it is a rights court? Activist Harsh Mander asked for the recusal of Chief Justice and ultimately he recused himself.
Sealed covers
And what may be travesty of the worst order, perhaps, is the Court’s new found attraction for sealed covers. Secrecy can – in limited circumstances – be justified by the executive, but the distinguishing feature of a judicial institution is transparency, for only then, can the institution assure the people that it is giving everyone a fair and equal chance to be heard.
This has happened far too often to be brushed aside as a mere idiosyncrasy of one particular judge, or a bench. It has happened in the NRC case, the Rafale case, the CBI chief’s case, and the electoral bonds case, to name but a few.
By shoving documents and facts that otherwise ought to be made public into sealed envelopes, the Court is signalling that it prefers the work ethic of the executive, believing truly that such secrecy is essential to deliver justice.
Prioritisation of cases
Another instance is the court’s worrisome practice when it comes to the prioritisation of cases. The Court found it had no time to deal with the many civil rights-related cases that were lying before it pertaining to the situation in Kashmir.
Mr Gautam Bhatia tells us about the case pertaining to electoral bonds. Electoral bonds allow private individuals and corporate entities to make donations to political parties. Reports suggest that over Rs 6,000 crore have been collected by parties under this scheme, the majority by the ruling establishment. The Supreme Court refused to stay the issuance of such bonds, and instead asked for details of the contributors to be submitted in a sealed cover, which it would assess in due course. But that assessment never came, and many elections – central and state – have happened since then.
Inaction also sends out powerful signals, as we can see in this case. This inaction also spoke louder than words when the Court found it had no time to deal with the many civil rights-related cases that were lying before it. In the case of the CAA, too, the Chief Justice of India first says petitions will be heard only after people stop violence, as though good behaviour were a condition precedent for seeking protection of rights.
Scores of petitions were filed in the month of December 2019. The whole country was polarised, and there was even violence perpetrated against peaceful protesters by state authorities themselves. In this scenario, the Supreme Court proceeds to push the matter by four weeks, instead of commencing hearings immediately. This is deeply disappointing, to say the least.
https://scroll.in/article/952775/ju...o-doubt-whether-sc-able-to-protect-our-rights
Goebbels got checkmated by Kejriwal when the latter jumped onto the nationalism and hindutva bandwagon towards the end of campaigning. That's all the jalao party have to woo a voter.
The problem in India is Gandhi dynasty. Rahul is not going to win anything. He should step aside and let someone else be the leader of the Congress party. Then only can Modi be challenged. Personal vanity or power is what is stopping Congress from winning.
Once the Gandhis exit, it will be a free for all in Congress. Everyone would want to take the top spot and fight among themselves.
No different than any other political party. Even Modi had to fight with bigwigs like Advani to get his chance. Right now the spectre of infighting seems worse because of general acceptance that only a Gandhi can be in top position. Once that is not the norm anymore, things will settle down and you will have the normal leadership contests ala other parties
Gandhis per se were never the issue but just that the new gen Gandhis have been a total disappointment and people are not ready to accept them. You look at Rahul, he has been a failure with each election and yet not ready to give away his power. I also think it would not be a bad idea to have a new face take the top spot. Now granted the new face may also not be good enough but at least one can build from that. Right now I don't see any hope with the Congress party. Zero strategy, zero charisma from their leader, zero leadership.
He wanted to quit. His mom and party wouldn't allow.
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Rahul Gandhi is actually one of the few Congress leaders who is a true liberal in terms of his beliefs . If he leaves the party might do better at elections but will become much more centre or centre right even . Majority of their other big leaders supported Modi on 370A and have been quiet on CAA
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Delhi Police being exposed left, right and center.
https://indianexpress.com/article/opinion/columns/an-outsider-in-a-private-club/
https://indianexpress.com/article/opinion/columns/fifth-column-an-end-to-socialist-elitism/
https://indianexpress.com/article/l...tavleen-singh-pm-modi-trick-or-tryst-2766182/
her whole politics is because she fell out with sonia and now has fallen out with modi. i really can't stand her.
She also did an interview with Barkha if anyone is interested.
https://indianexpress.com/article/opinion/columns/an-outsider-in-a-private-club/
https://indianexpress.com/article/opinion/columns/fifth-column-an-end-to-socialist-elitism/
https://indianexpress.com/article/l...tavleen-singh-pm-modi-trick-or-tryst-2766182/
her whole politics is because she fell out with sonia and now has fallen out with modi. i really can't stand her.
Atleast sonia helped her in her time of need, modi just fecked her over when he had no more use of her.
The problem with the culture of the high command in congress is that they expect servitude. And servants don't make good leaders.
She's burnt all her bridges now.
Where has she been sleeping all these years?!
Voter ID, Voter list, Land Documents Not Proof Of Citizenship: Gauhati HC
The High Court has dismissed citizenship claims of a woman who submitted 15 documents.
The Gauhati High Court recently dismissed citizenship claims of two petitioners-- one of whom produced as many as 15 documents while another submitted his electoral photo identity card.
In an order dated February 12, a bench of Justices Manojit Bhuyan and Parthivjyoti Saikia dismissed a writ petition filed by one Jabeda Begum. She was declared a foreigner from Bangladesh by a Foreigners Tribunal in Baksa district in May 2019 despite her claim that she was a citizen of India by birth.
Those identified as suspected illegal immigrants who have come to Assam after March 24, 1971, the cut-off date as per the Citizenship Act, have to prove their citizenship in the Foreigners Tribunals.
Begum, who claimed that her family is a victim of river erosion and had to shift villages, produced documents where she sought to show that her father was in the NRC list of 1951. She showed that the names of her parents and grandparents appeared in the voter list of 1966; the names of her parents and siblings were also present in several subsequent voter lists.
Moreover, she produced documents like land revenue payment receipts, her bank passbook, her PAN card, and a ration card.
Begum also had two certificates by the Gaon Bura (village head) of the village. The first certificate said her father Jabed Ali was a permanent resident of the village while the second one said Begum was Jabed Ali’s daughter and married to Rejak Ali.
“In the instant case, the petitioner claimed that she is the daughter of Lt. Jabed Ali and Jahura Khatun @ JaheraKharan. She could not file any documents to link herself with her projected parents… “ the HC order said dismissing her petition.
“This Court in Md. Babul Islam Vs. Union of India [WP(C)/3547/2016], has already held that PAN Card and Bank documents are not proof of citizenship,” the order said citing a previous ruling.
“The petitioner could not file any documents to link herself with her projected brother, Md. Samsul Ali,” the order reads. It further says, “Land Revenue Paying Receipts do not prove a citizenship of a person. Therefore, we find that the Tribunal has correctly appreciated the evidence placed before it and we could find any perversity in the decision of the Tribunal.”
Interestingly, the order also did not take into account the Gaon Bura's certificates.
“Certificates issued by a Village Gaon Bura can never be the proof of citizenship of a person. Such certificate can only be used by a married woman to prove that after her marriage, she had shifted to her matrimonial village [Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579],” the order read.
The Supreme Court had allowed married women to submit Gaon Bura certificates as documents to establish their relationship to their parents for inclusion in National Register of Citizens but said they should be verified.
“Merely producing a document is not enough. The content of the document has to be verified and the author of the said document has to come to the witness box,” said SC Kayal, assistant Solicitor General of India explaining how Begum had failed to prove the veracity of her documents.
Meanwhile, in another order on the same day, the bench dismissed a petition by Munindra Biswas, who claimed that he has been wrongly declared a foreigner last year by a Tribunal in Tinsukia. Biswas claimed his father migrated to the Ledo town in 1965 from Nadia in West Bengal.
To support his claim, Biswas submitted a registered sale deed, another sale deed and a copy of the voter list of 1997 which had his name. He also submitted his Electoral Photo Identity Card (EPIC).
“Regarding Electoral Photo Identity Card this court in the case of Md. Babul Islam Vs. State of Assam [WP(C) No. 3547 of 2016] has held that Electoral Photo Identity Card is not a proof of citizenship,” the order read.
Faizan Mustafa, a well-known jurist and constitutional expert says these orders show that people have documents but they are not accepted, due to which genuine citizens are getting excluded."
“The language of ‘projected brother’ and ‘projected parents’ is alien to the civilised legal system,” Mustafa said referring to the order in Begum’s case.
He said the two orders dismissing the petitions “ignore the law of evidence under which even oral evidence is considered sufficient.”
“Why did the court did not accept the brother’s evidence,” he asked referring to Begum’s case, and added, “The court has taken a highly technical view."
https://www.outlookindia.com/websit...ts-not-proof-of-citizenship-gauhati-hc/347466
Hopefully the chap who stamped our birth certificates is alive and well
So far I've gathered from various judgments is that the following documents are of no use:
1. Passport
2. Voter ID
3. Land/Revenue Documents
4. Aadhar
5. PAN
6. Ration Card
7. Bank Documents
8. Birth Acknowledgment Letters from hospitals, nursing homes, village head etc.
9. Marriage Certificates
10. Any other document that proves residency.
Only document that is consistently relied upon is the Birth Certificate issued by the concerned municipal authority. There are four problems with this also:
1. As per the governments own data around 70% of the population didn't have birth certificates till 2005.
2. The remaining 30% that do have birth certificates, a good portion of them won't be having the name of the person because by default birth certificates are issued without the name of the child, you have to apply afterwards for addition of the name.
3. Even if the name is included and it has a slight variance (like misspelling of one's own name or parents name) with other documents mentioned above then even the birth certificate might not be considered adequate proof of citizenship.
4. Assuming you have perfect records you're still not out of the woods if your date of birth is after 1987! If it is, then your parents better have perfect records aswell.
The High Court has dismissed citizenship claims of a woman who submitted 15 documents.
The Gauhati High Court recently dismissed citizenship claims of two petitioners-- one of whom produced as many as 15 documents while another submitted his electoral photo identity card.
In an order dated February 12, a bench of Justices Manojit Bhuyan and Parthivjyoti Saikia dismissed a writ petition filed by one Jabeda Begum. She was declared a foreigner from Bangladesh by a Foreigners Tribunal in Baksa district in May 2019 despite her claim that she was a citizen of India by birth.
Those identified as suspected illegal immigrants who have come to Assam after March 24, 1971, the cut-off date as per the Citizenship Act, have to prove their citizenship in the Foreigners Tribunals.
Begum, who claimed that her family is a victim of river erosion and had to shift villages, produced documents where she sought to show that her father was in the NRC list of 1951. She showed that the names of her parents and grandparents appeared in the voter list of 1966; the names of her parents and siblings were also present in several subsequent voter lists.
Moreover, she produced documents like land revenue payment receipts, her bank passbook, her PAN card, and a ration card.
Begum also had two certificates by the Gaon Bura (village head) of the village. The first certificate said her father Jabed Ali was a permanent resident of the village while the second one said Begum was Jabed Ali’s daughter and married to Rejak Ali.
“In the instant case, the petitioner claimed that she is the daughter of Lt. Jabed Ali and Jahura Khatun @ JaheraKharan. She could not file any documents to link herself with her projected parents… “ the HC order said dismissing her petition.
“This Court in Md. Babul Islam Vs. Union of India [WP(C)/3547/2016], has already held that PAN Card and Bank documents are not proof of citizenship,” the order said citing a previous ruling.
“The petitioner could not file any documents to link herself with her projected brother, Md. Samsul Ali,” the order reads. It further says, “Land Revenue Paying Receipts do not prove a citizenship of a person. Therefore, we find that the Tribunal has correctly appreciated the evidence placed before it and we could find any perversity in the decision of the Tribunal.”
Interestingly, the order also did not take into account the Gaon Bura's certificates.
“Certificates issued by a Village Gaon Bura can never be the proof of citizenship of a person. Such certificate can only be used by a married woman to prove that after her marriage, she had shifted to her matrimonial village [Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579],” the order read.
The Supreme Court had allowed married women to submit Gaon Bura certificates as documents to establish their relationship to their parents for inclusion in National Register of Citizens but said they should be verified.
“Merely producing a document is not enough. The content of the document has to be verified and the author of the said document has to come to the witness box,” said SC Kayal, assistant Solicitor General of India explaining how Begum had failed to prove the veracity of her documents.
Meanwhile, in another order on the same day, the bench dismissed a petition by Munindra Biswas, who claimed that he has been wrongly declared a foreigner last year by a Tribunal in Tinsukia. Biswas claimed his father migrated to the Ledo town in 1965 from Nadia in West Bengal.
To support his claim, Biswas submitted a registered sale deed, another sale deed and a copy of the voter list of 1997 which had his name. He also submitted his Electoral Photo Identity Card (EPIC).
“Regarding Electoral Photo Identity Card this court in the case of Md. Babul Islam Vs. State of Assam [WP(C) No. 3547 of 2016] has held that Electoral Photo Identity Card is not a proof of citizenship,” the order read.
Faizan Mustafa, a well-known jurist and constitutional expert says these orders show that people have documents but they are not accepted, due to which genuine citizens are getting excluded."
“The language of ‘projected brother’ and ‘projected parents’ is alien to the civilised legal system,” Mustafa said referring to the order in Begum’s case.
He said the two orders dismissing the petitions “ignore the law of evidence under which even oral evidence is considered sufficient.”
“Why did the court did not accept the brother’s evidence,” he asked referring to Begum’s case, and added, “The court has taken a highly technical view."
https://www.outlookindia.com/websit...ts-not-proof-of-citizenship-gauhati-hc/347466
Hopefully the chap who stamped our birth certificates is alive and well
So far I've gathered from various judgments is that the following documents are of no use:
1. Passport
2. Voter ID
3. Land/Revenue Documents
4. Aadhar
5. PAN
6. Ration Card
7. Bank Documents
8. Birth Acknowledgment Letters from hospitals, nursing homes, village head etc.
9. Marriage Certificates
10. Any other document that proves residency.
Only document that is consistently relied upon is the Birth Certificate issued by the concerned municipal authority. There are four problems with this also:
1. As per the governments own data around 70% of the population didn't have birth certificates till 2005.
2. The remaining 30% that do have birth certificates, a good portion of them won't be having the name of the person because by default birth certificates are issued without the name of the child, you have to apply afterwards for addition of the name.
3. Even if the name is included and it has a slight variance (like misspelling of one's own name or parents name) with other documents mentioned above then even the birth certificate might not be considered adequate proof of citizenship.
4. Assuming you have perfect records you're still not out of the woods if your date of birth is after 1987! If it is, then your parents better have perfect records aswell.
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Good to know that the POTUS will also be meeting the future PM of the country Ajay Bisht.