India Legal - 2 March 2020

India Legal - 2 March 2020
NDIA EGALL STORIES THAT COUNT I March2, 2020 TheIronFistIncreasingly,Section144isbeenusedbypoliticiansandbureaucratsto deprivecitizensoftheirfundamentalrights.Nowthecourtshavesteppedin tostemthemisuse,butisitenough? Justice Chandrachud: “Dissent not anti-national”
| INDIA LEGAL | March 2, 2020 3 he judicial postponements, mercy petitions and reviews in the Supreme Court and High Courts, which have delayed the hanging of the convicted rapist-murderers of Nirbhaya, have once again ignited a national controversy over the ethics, efficacy and utility of capital punishment as a tool of deterrence. Even as 107 countries—including Russia—have done away with executions, the age-old debate about the death penalty—justice versus revenge versus deterrence—rages on. In this context I recall a courtesy call I made in 2014 on then Chief Justice of India P Sathasi- vam who was due to retire in a week. Without referring to any specific case before him, the judge seemed highly agitated by judicial delays, particularly in the case of death row prisoners who suffer interminable mental torture or even go stark raving mad while awaiting decisions on mercy petitions. “This has to be remedied,” he said. Little did I know that a day later, a bench headed by him and comprising Justices RM Lodha, HL Dattu and SJ Mukhopadhaya would commute the death sentence of Devenderpal Singh Bhullar whose mercy petition had been pending for eight years following a 1993 Delhi bomb blast which killed nine people. The judges cited Shatrughan Chauhan vs Union of India where “unexplained and inordi- nate delays” in deciding a mercy petition as well as mental and physical illness were found valid grounds for commutation of a death sentence to life imprisonment. Sathasivam’s last judgment as CJI once again catalysed the judicial and academic community to re-examine the whole death penalty issue. India Legal has tackled this subject in cover stories in the magazine as well as on its TV channel in which we featured gu- ests, including academicians from the National Law University (NLU). In 2017, an important social story that got lost in the political din of the Gujarat elections was a wide-ranging and thought-provoking report on capital punishment in India, titled “Matters of Judgment”. It is a landmark attitude study on the criminal justice system and the death penalty featuring 60 former judges of the Supreme Court of India. They include Justices AK Ganguly, Santosh Hegde, Ruma Pal, BN Srikrishna and RC Lahoti, who have adjudicated 208 death penalty cases among them between 1975 and 2016. Dr GS Bajpai, registrar and professor of cri- minology and criminal justice, a frequent guest on India Legal TV shows, said at the seminar at which the report was released: “This report is not as simplistic as we think based on its face value and has to be decoded further with respect to the observations made by the judges. It is said that criminal law is deficient. I would say that it is not that criminal law is deficient but we have failed criminal law. It is the institutions that have failed criminal law in India. Fresh insights are not being imported into the criminal law of this country. It is as if we only like to debate. This study is not the conclusion but like a hypothesis which should be taken forward by law researchers.” India Legal carried a comprehensive editorial on that report which probably has as much relevance in the context of today’s controversies as it did at the time when it first appeared. I reproduce below its major findings in the hope that it will create the atmosphere for a debate based on empirical data rather than pure emotion. Of the 60 former judges interviewed, 47 had adjudicated death penalty cases and confirmed 92 death sentences in 63 cases. Considering that the death penalty represents the most severe punishment permitted in law, “we sought the views of former judges on critical aspects of the criminal justice system like torture, integrity of the evidence collection process, access to legal representation and wrongful convictions,” the study’s authors said in an introduction. The interviews also examined the meaning of the EXECUTIONER’S SONG Inderjit Badhwar T Letter from the Editor IndiaLegal carried acomprehensive editorialonthe wide-rangingand thought-provoking reportoncapital punishmentinIndia, titled,“Mattersof Judgment”.The report,probably, hasasmuch relevanceinthe contextoftoday’s controversies relatedtodeath penaltyasitdidat thetimewhenit firstappeared.
4 March 2, 2020 “rarest of rare” standard laid down by the apex court for awarding the extreme punishment in Bachan Singh vs State of Punjab, the appropriate role for aggravating and mitigating factors and the nature of judicial discretion during death penalty sentencing. The final stage of the report examines the atti- tudes of former judges to abolition or retention of the death sentence “while exploring their thou- ghts on recent developments that seek to move away from the death penalty”. T his is not the first time this troubling legal subject of life vs death has been explored in India. In the Constituent Assembly of 1947-49, it was intensely debated, with Dr BR Ambedkar staunchly opposing the death penalty. In 2015, the Law Commission headed by Justice AP Shah proposed that the country should aim at complete abolition “but as a first step that it be done away with for all crimes except terrorism. Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible”. Nonetheless, the NLU study is startling because it reveals an overpowering recognition and widespread anxiety among former Supreme Court judges about India’s criminal justice system because of extensive pervasiveness of torture, fabrication of evidence, the appalling inferiority of legal aid and unjust convictions. For example, as Dr Anup Surendranath, director of the Centre on the Death Penalty, puts it: “Judges acknowledge the misuse of Section 27 of the Evidence Act as also planting of evidence. They acknowledged that torture was a reality. Only one of them said that it does not exist. Some said that it is expected that something like that will happen. They also acknowledged wrongful convictions. But wrongful convictions were eventually pitted against wrongful acquittals by some judges and were not viewed as independent problems.” Here are excerpts of the key findings and recommendations of this exclusive survey: There was explicit acknowledgment and widespread concern about the crisis in the criminal justice system due to the use of torture to gener- ate evidence, fabrication through recovery evidence, a broken legal aid system and wrongful convictions. Though some former judges did offer justifications/explanations for this state of affairs, there was an overwhelming sense of concern about the integrity of the criminal justice system from multiple viewpoints. However, the grave concerns about the criminal justice system did not sit quite well with the support for the death penalty. In conversations on the death penalty, the above mentioned realities of administering criminal justice in India hardly found mention. This disconnect was best demonstrated when 43 former judges acknowledged wrongful convictions as a worrying reality in In- dia’s criminal justice system generally but when it came to the death penalty, only five judges acknowledged the “possibility of error” as a possible reason for abolition in India. All former judges, irrespective of their position on the death penalty, were asked the reasons they saw for abolition or retention of the death penalty in India. In response, 29 former judges identified abolitionist justifications and 39 identified retentionist justifications. Fourteen retentionist judges took the position that there was no reason whatsoever to consider abolition in India and three abolitionist judges felt there was no reason to keep the death penalty. Deterrence emerged as the strongest penologi- cal justification for retaining the death penalty, with 23 former judges seeing merit in that argument. However, most of them believed that the deterrent value of the death penalty flows from a general fear of punishment rather than any particular deterrent value specific to the death penalty. The notion of a bifurcated trial, being a division between the guilt-determination phase and the sentencing phase, did not seem to hold much attraction for the former judges. Despite the sentencing process in death penalty cases having very specific requirements as per the judgment in Bachan Singh, the understanding of “rarest of rare” among former judges was determined/ do- minated by considerations of the brutality of the crime. For a significant number of judges, the “rarest of the rare” was based on categories or descrip- tion of offences alone and had little to do with the judicial test requiring that the alternative of life imprisonment be “unquestionably foreclosed”. This meant that for certain crimes, this widely- hailed formulation falls apart, rendering the sentencing exercise nugatory. Despite the law setting out an indicative list of both aggravating and mitigating circumstances to be taken into account before determining the sen- Thisisnotthefirst timethistroubling legalsubjectoflife vsdeathhasbeen exploredinIndia.In theConstituent Assemblyof 1947-49,itwas intenselydebated, with DrBR Ambedkarstaunchly opposingthe deathpenalty.In 2015,theLaw Commissionheaded byJusticeAPShah proposedthatthe countryshouldaim atcomplete abolition“butasa firststepthatitbe doneawaywith forallcrimes exceptterrorism”. Letter from the Editor
tence, there was considerable confusion about the weight and scope of mitigating circumstances. Opinions varied considerably on whether factors such as poverty, young age and post-conviction mental illness and jail conduct could be considered mitigating circumstances at all, despite them being judicially recognised. A minority, in fact, did not believe in considering any mitigating circumstances at all while others believed that some categories of offences were simply beyond mitigation. A striking feature, in stark contrast to the lack of confidence in the investigative process, was the confidence that judges had in discretionary powers in sentencing. This was despite the fact that more than half the judges believed that the background of a judge, including their religion and personal beliefs, were factors that influenced the choice between the death penalty and life imprisonment. There appeared to be no “bright line” which distinguished judicial sentencing discretion swiftly slipping into individual judge-cen- tric decisions. The law since Bachan Singh has evolved considerably on the issue of the scope of a sentence of life imprisonment. In December 2015, a Constitu- tion bench of the Supreme Court affirmed that it had the power to impose a sentence for a fixed duration or for the natural life of the prisoner which was beyond the scope of remission. While 25 judges believed that this sentencing formulation was a legally valid punishment, seven found it violative of constitutional mandate and separa- tion of powers. CONCLUSION “It is interesting that a significant number of retentionist judges identified abolitionist reasoning. It demonstrates the inescapable force of certain abolitionist arguments, but stark in its complete absence was any acknowledgment of the disparate impact of the death penalty on the poor and marginalised sections of Indian society. In a criminal justice system that is corrupt and violent at multiple levels, the burden on vulnerable sections of society is immense, and it is only accentu- ated within the death penalty context. As such, it is peculiar as to why this aspect of the death penalty in India did not find any real favour amongst former judges, especially those that were abolitionist. “The disproportionate representation of the poor, illiterate, and socially marginalised within the death penalty context is abundantly clear in India and other retentionist countries across the globe. The contrast between the discussions on the criminal justice system and the confidence that seems to exist in administering the death penalty in the very same system is striking. The role of harsh punishments within a crisis-ridden criminal justice system is a complex one. “The challenge really is to comprehend the considerations which drive the death penalty in a system that is plagued with torture, fabricated evidence, and wrongful convictions. As the harsh- est punishment in our legal system, the discussions and positions on the death penalty must feel the utmost impact of these worrying realities. It is the extreme ends of our criminal justice system, that need to be tempered by the grim reality that the former judges brought out so powerfully (in the first part of the report). “Ultimately, the fact that their concerns about the criminal justice system has not migrated to their discussion on the death penalty is indicative of the terms on which multiple competing inter- ests get balanced.” | INDIA LEGAL | March 2, 2020 5 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com A LANDMARK STUDY The report on capital punishment featured 60 former judges of the SC. They include (from above left) Justices RC Lahoti, Santosh Hegde, Ruma Pal, BN Srikrishna and AK Ganguly. Between them, they adjudicated 208 death penalty cases between 1975 and 2016
6 March 2, 2020 ContentsVOLUME XIII ISSUE16 MARCH2,2020 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Junior Sub-editor Nupur Dogra Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographer Anil Shakya Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar Group Brand Adviser Richa Pandey Mishra CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. In numerous cases, Section 144, CrPC, has been used in a draconian way by politicians and bureaucrats without holding an inquiry and deprived citizens of their fundamental rights till the courts have stepped in The Iron Fist LEAD 14 Should there be multiplicity of jurisdictional auspices in any case which can be seen as creating a conflict? An analysis by PProf Upendra Baxi A Paradigm of Labour Injustice 18 Dissent is the “safety valve” of democracy and to label it anti-national or anti-democratic strikes at the “heart” of India’s commitment to protect Constitutional values and promote deliberative democracy, Justice DY Chandrachud of the SC said recently in a speech delivered in Gujarat Dissent Not Anti-National EXCERPTS 20 MYSPACE
| INDIA LEGAL | March 2, 2020 7 Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Illustration & Design: ANTHONY LAWRENCE REGULARS Ringside............................8 Is That Legal.....................9 Courts.............................10 Law Campus News........12 Media Watch ..................29 International Briefs ........42 Time to be Accountable Gods Beyond Borders IT Intermediaries Guidelines (Amendment) Rules, 2018, will push for “traceability” of content. But intermediaries are averse to this due to privacy and freedom of expression issues A Supreme Court bench has suggested that a former woman district judge of Madhya Pra- desh who had resigned after alleging sexual harassment by an MP High Court judge be reinstated and complimented her for her attitude 44 A proposed bill to bring in the two-child norm is in conjunction with the Constitution which says that it is the duty of the State to raise the standard of living and improve public health Too Many for Too Little GLOBALTRENDS 40 The Imran Khan government in Pakistan is expected to respond favourably to demands from Hindus for the import of idols of gods A PIL asks the top court to direct the government to release data on clinical trials of Rotovacs conducted at three test centres, for combating deaths in infants due to diarrhoea Veil of Secrecy 26 Three judges belonging to the Karnataka, Delhi and Bombay High Courts are likely to be posted to Uttarakhand, Punjab & Haryana and Meghalaya High Courts, respectively SC Collegium Recommends Transfer of Judges 28 COLUMN Despite courts consistently meting out stringent punishment to sex offenders, a lot needs to be done. A nationwide sex offender registry is one step 34The Silence of the Lambs 38 OPINION Thousands have disappeared due to repressive regimes and despite this being against international conventions, there has been little interest by governments to track them, leaving families grieving Cry, the Beloved Country 30 The Court imposed heavy fines on states and UTs which hadn’t replied to a plea to set up community kitchens to combat malnutrition Just Desserts SUPREMECOURT Grit Wins Kudos 27 24
8 March 2, 2020 Anthony Lawrence RINGSIDE “Donald, I told you I’d guarantee you wall to wall coverage”
| INDIA LEGAL | March 2, 2020 9 ISTHAT —Compiled by Ishita Purkaystha Can a convicted rapist be refused free legal aid for exhausting his legal remedies? Article 39A in Part IV of the Constitution guarantees free legal aid to all citizens of the country, irrespective of economic or other barriers. The twin aims of the Directive Principles of State Policy enshrined in our Constitution are to secure welfare and justice to all, through social and economic democracy. Thus, despite the most heinous of offences committed, every Indian citizen is entitled to representation in a court of law through legal aid. Although Part IV does not beget enforceable rights, free legal aid has been upheld by the Supreme Court as a fundamental right under Article 21 of the Constitution. ? Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Is there a legal remedy for an employee if his employer does not pay his salary? In such cases, the employee can (i) approach the labour commissioner to reconcile the matter, or (ii) file a suit under Section 33(c) of the Industrial Disputes Act, 1947, for recovery of money due from an employer, or (iii) file a case with the com- petent authority under the Payment of Wages Act, 1936. For executives and managers earning above Rs 18,000, a summary suit under order 37 of the Code of Civil Procedure can be pursued, preferably following a legal notice to the company to clear unpaid salaries. A company may also be booked for fraud under Sec- tion 447 of the Companies Act, 2013, or under the IPC. Legal Aid for Rapists Fighting for Salary Can a Non-lawyer Argue a Case in Court? Will the electricity supply to a lawyer’s chamber within his residential premises fall under domestic consumption? Or will it be charged as per commercial rates? The Calcutta High Court recently held that electricity used by a lawyer for his chamber within his residence, though falling under the non- domestic category, yet can’t be charged under commercial (urban) rates. The Court agreed with the petitioner’s contention that the legal pro- fession, which requires a certain amount of skill, cannot be called a commercial activity. It observed that a lawyer’s chamber is unlike a law firm, operating out of commercial space and dealing with both litigation and non-litigation work. Relying on an apex court precedent, the High Court asked the concerned department to supply electricity to the chamber at domestic (urban) rates. Electricity Tariffs for Lawyers Can a person who is not a lawyer appear in court on behalf of a litigant? Yes, but only subject to the prior approval of the court hearing the case. This can happen after the litigant moves a motion requesting that a non-lawyer be allowed to appear in court to argue his case. It is the court’s pre- rogative to either grant or refuse permission to a non-lawyer to appear. The apex court in a 1978 judgment held that even though a non-lawyer does not have a right to argue, he may be permitted based on his antecedents, the relationship with the litigant, cogent reasons for requisitioning the services of a private person and a variety of other circumstances as may be determined on a case to case basis. Movie Screenshot
Courts 10 March 2, 2020 The centre told the Supreme Court that the responsibility for the delay in appointing judges to High Courts doesn’t lie with the government alone and that the Supreme Court Coll- egium was equally responsible. It said that while the government took, on an average, 127 days to clear a recommendation, the apex court collegium took 119 days. Attorney General KK Venugopal (left) told a bench of Justices SK Kaul and KM Joseph that out of the 396 vacancies in the various High Courts, no recommendations had been made with respect to 199 vacancies. Taking note of Venugopal’s submissions, the top court asked the registrar generals of all High Courts to explain the vacancy position as on February 17, the day the matter was heard, and also the vacancies which would arise in the future. The bench said that registrar generals of the High Courts should also explain within four weeks the time required by them for making recommendations for the vacancy of judges. Collegium too at fault for delay in appointments: Centre In a significant ruling, the Supreme Court ordered granting of permanent commission to women officers in the Indian Army in all the 10 non-combat wings. “An absolute bar on women seeking criteria or command appointments would not com- port with the guarantee of equality under Article 14,” the Court said. While stating that “the absolute exclusion of women” from all command assignments, except staff assignments, is “indefensible”, the bench of Justices DY Chandrachud and Ajay Rastogi rejected the arguments against giving a greater role to women officers and said that their eligibility for command posts will be considered on a case- to-case basis. The bench said that “necessary steps for compliance with this judgment shall be taken within three months”. It struck down a part of the centre's February 2019 circular that had proposed permanent commission for women officers if they had not completed 14 years in service. The Court cited Captain Tania Shergill, who was the face of the Indian Army at the Republic Day parade this year, and several other women officers decorated with Seva Medals and Vishisht Seva Medals to stress that women officers brought many laurels to the nation. “To cast aspersions on women based on gender is, in fact, an affront to the entire army where men and women serve as equals,” it said. ADelhi court issued fresh death warrants against four convicts in the December 2012 Nirbhaya gang rape-cum-mur- der case, saying that deferring the death warrants would be “sacrilegious to the rights of the victim for expeditious justice”. It set the date of execu- tion of the convicts—Mukesh Kumar Singh, Pawan Gupta, Vinay Kumar Sharma and Akshay Kumar—as March 3 at 6 am. The date for the hanging was rescheduled twice this year—fixed first for January 22 and then for February 1—but was rescheduled as the death row convicts had not exhausted all their legal remedies. On February 5, the Delhi High Court gave the killers one week to exhaust all their legal options, after which a fresh date for hanging was to be decided. The Court also made it clear that the killers could not be hanged separately, as they were convicted of the same crime. Pawan is yet to file curative and mercy petitions while Akshay wants to file a fresh mercy petition. Delhi Court orders four Nirbhaya convicts to be hanged on March 3 Give permanent commission to women in army: SC
| INDIA LEGAL | March 2, 2020 11 —Compiled by India Legal team In custody battle, child is the loser: SC Children are “always the losers” and pay the “heaviest price” in a custody battle, the Supreme Court said while asserting that the rights of the child need to be respected as he or she is entitled to the love of both parents. A bench of Justices AM Khanwilkar and Ajay Rastogi said in a judgment on a matrimonial dispute in which the couple was embroiled for long that the breakdown of marriage does not signify the end of “parental responsibility”. “The children are deprived of love and affection of their parents without any fault on their part,” the Court said while stating that while deciding the issue of custody, the best interest of the child should be kept in mind. If efforts to settle a matrimonial dispute through the process of mediation do not fructify, then courts should make an endeavour to resolve it as expeditiously as possible because with every passing day the child pays a heavy price, the Court observed. The Supreme Court dismissed a curative petition filed by families of victims of the 1997 Uphaar cinema fire tragedy against brothers Sushil and Gopal Ansal, thus spar- ing the Ansal brothers a further jail term. A three-judge bench comprising Chief Justice of India SA Bobde and Justices NV Ramana and Arun Mishra considered the curative plea by the Association for Victims of Uphaar Tragedy (AVUT) in-chamber and dismissed it. “We have gone through the curative petitions and the relevant documents. In our opinion, no case is made out....Hence, the curative petition is dismissed,” the bench said in its order. On February 9, 2017, the apex court had by a 2:1 majority verdict given relief to 78-year- old Sushil Ansal considering his “advanced age-related compli- cations” by awarding him the jail term which he had already served. It had, however, asked his younger sibling, Gopal Ansal, to serve the remaining one-year jail term in the case. Fifty-nine people died on June 13, 1997, when a fire broke out in the Ansal family-owned Uphaar theatre in south Delhi during a screening of the film Border. Judicial officers cannot be appointed district judges through direct recruitment which is reserved exclusively for practising advocates. A three-judge bench comprising Justices Arun Mishra, Vineet Saran and S Ravindra Bhat gave its verdict on the matter and held that civil judges cannot appear for the examination of the higher judicial services conducted by High Courts to select Additional District Judges (ADJ). Civil judges can be appointed to the post of ADJs by promotion and not by participating in competitive examinations, Justice Mishra, who read out excerpts of the judgment, said. The higher judicial services exams can be taken by practising advocates with a minimum of seven years of experience at the bar, the court said. According to Article 233 (2) of the Constitution, a person not already in the service of the Union or of a state becomes eligible for app- ointment as a district judge only if he has been an advocate or a pleader for at least seven years. No direct entry for civil judges in posts reserved for Bar SC dismisses curative plea on Uphaar fire tragedy case The Supreme Court stressed the importance of the green cover and said greenery might vanish if people don’t take seriously the issue of rapid deforestation. The Court was hearing a plea on the cutting of trees in connection with the construction of a foot over- bridge on the India-Bangladesh border by the West Bengal government. The Court observed that the green cover must be preserved but people were not willing to explore alternatives. "There could be a way to create a path without cutting trees,” it added. The petition was filed by the Association for Protection of Demo- cratic Rights on the felling of over 350 trees for the construction of railway overbridges and widening of NH 112. Green cover is important, says SC
of both demographics of students at NUJS and their performance in academic and extra-curricular activi- ties. In addition, information on peer behaviour and support systems would also enable better evaluation.” The report is divided into three parts— 1) Demographics, which includes data on family, financial, linguistic background and admission category. 2) Performance of students at NUJS across academics, research publications and paper confer- ences; moots, de- bates, internships, pl- acements and so on. 3) Life at NUJS studying peer to peer interactions, behaviour, support system and discrimination. Writing the foreword for the report, Kalpana Kannibiran, professor and director at the Council for Social Develop- ment, Hyderabad, cites the importance of such a study and writes, “Events between Rohith Vemula’s protest in 2015 and the movement following his death in 2016 through the death of Payal Tadvi in 2019 till the continuing present in 2020, point to the urgency of addressing questions of pluralism and equality on campuses as the only way of building sus- tainable cultures of deliberative democracy in our contexts. It is against this backdrop that this study is extremely 12 March 2, 2020 LAW CAMPUSES / UPDATES NUJS releases Diversity Report National Law University Delhi (NLUD) in collaboration with National Human Rights Commission (NHRC) is organising a National Conference on Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013: Issues National Conference at NLUD The West Bengal National University of Judicial Science (NUJS) has released the Diversity Report 2019. The report is a result of a year-long process conducted in NUJS across five batches of students. Rohit Sharma, a student from the batch of 2020 at NUJS, conceptualised the NUJS, Diversity Report. He writes in the report that “the report is an attempt at presenting the census data collected from the students of NUJS in a proper perspective which enables both institutional changes in the future and individual introspection in the immediate. The idea behind conducting the diversity census was to conduct a serious evaluation valuable and deeply instructive.” Presenting an interesting perspective on diversity in the campus, the report presents some interesting data like, “26.7 percent of respondents identify as Brahmin—not just general category but this caste in the general category which is the largest chunk, because ‘Other Upper Castes’ together constitute close to 32 percent. Dalits and Adivasis together account for about 15.6 percent. However, the fact that within this, Adivasis are only around 5 percent is also a matter of concern especially when one correlates that with their low pres- ence in extra-curricular work, the inac- cessibility of effective peer support and ineffective mentorship to this cohort. Respondents identifying themselves as Atheists add up to 10.6 percent, not a small number, but it would be interesting to see how this cuts through caste iden- tification: Is this number drawn from the 15.2 percent who have not reported caste membership, or are they distrib- uted across caste categories? Clearly from the data on parental income, those reporting lack of knowl- edge of caste (as distinct from unwilling- ness to identify self in caste terms) belong to the most affluent families.”
| INDIA LEGAL | March 2, 2020 13 —Compiled by Nupur Dogra Law fest at College of Law, Mumbai Rajiv Gandhi National University of Law, Patiala (RGNUL) is organising the third edition of its flagship sports fest, Zelus III. Students can participate in a range of sports including tennis, badminton, basketball, athletics, table tennis, pool, snooker, chess, cricket, volleyball, and football. The sports fest will be held over March 5-8, 2020. Participants can win cash prizes up to Rs. 20,000. Thakur Ramnarayan College of Law, Mumbai hosted a two-day law fest—Lex Communique. The fest provided a platform to the student community to communicate, deliberate and intermingle to nurture and showcase skills. The event included moot competitions for students, a mock parliament and an experience in client counselling. The law fest is organised annually to train students to analyse a problem, research the relevant law, prepare written submissions and present oral arguments thus further enhancing their reasoning ability. Sports fest at RGNUL Hidayatullah National Law University (HNLU) is hosting the fourth edition of its flagship event, the Inter- national Model Unit- ed Nations Confere- nce (IMUNC). The event will be held from February 28 to March 1, 2020. Through this event the university aims to inculcate debating skills and diplomacy in students. The IMUNC will have four committees mod- elled after the United Nations General Assemb- ly, the United Nations Se- curity Council, the United Nations Human Rights Council and the Lok Sabha. The students will discuss agenda like protection of global climate for present and future generations of human- kind, the emerging conflict between the US & Iran and its Global After- math, the human rights and fundamental free- doms of the people in Kashmir and so on. The students winning best delegate, high com- mendation and special mention awards will win cash prizes worth, Rs 10,000, Rs 8,000 and Rs 6,000, respectively. 3rd IMUNC at HNLU, Raipur and Challenges. The conference will have discussion on the latest developments around the Act. The event is scheduled on February 29, 2020 from 10 am to 4 pm. To attend the conference, interested students must fill the form on the website.
14 March 2, 2020 N February 13, the Princi- pal Bench of the Karnataka High Court struck down an order of the Bengaluru police commissioner (vested with the powers of district magistrate) imposing Section 144 of the Criminal Procedure Code (CrPC) across the city during the anti-Citizenship (Amendment) Act (CAA) protests from December 19 to 21, 2019. Under this Section, a District Magistrate (DM) may “by a written order stating the material facts of the case direct any person to abstain from a certain act to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a distur- bance of the public tranquility, or a riot, or an affray”. The High Court held that the impug- ned order was illegal and did not stand the test for exercising such an extraordinary power as laid down by the Sup- reme Court in Anuradha Bhasin vs. Union of India. These tests are: The danger contemplated for imposing Section 144, CrPC should be in the nature of an “emergency”. This power cannot be used to sup- press legitimate expression of opinion or grievance or exercise of any democratic rights. An order passed under this Section should state the material facts to enable a judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. While exercising the power under this Section, the magistrate is duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive The Iron Fist Inmanycases,ithasbeenusedinadraconianwaybypoliticiansandbureaucratswithout holdinganinquiryanddeprivedcitizensoftheirfundamentalrightstillthecourtssteppedin Lead/ Section 144, CrPC MG Devasahayam O SUPPRESSING RIGHTS Historian Ramachandra Guha was detained by the Bengaluru City Police for violating Section 144 Photos: UNI
| INDIA LEGAL | March 2, 2020 15 measure. Repetitive orders under this Section would be abuse of power. The High Court acknowledged the necessity of these conditionalities because a prohibitory order under Section 144 has a chilling and terrifying effect on the citizens by depriving them of their fundamental rights, particularly Article 19 (assembling peacefully and without arms and practising or carrying on any occupation, trade or business) and Article 21 (life or personal liberty). Such a promulgation lets loose a chain of criminal liabilities on those participating in any assembly which has been declared unlawful even if peaceful. They commit cognisable offence and under Section 151 of the CrPC, a police officer has powers to arrest without a warrant any person who has a design to participate in unlawful assembly. Such partici- pation attracts several Sections, 143, 145, 146, 147, 149, 150 and 151, of the Indian Penal Code (IPC), some of which are punishable with two years’ rigorous imprisonment, even for innocent, unarmed men, women and children. In view of the enormity of an order under Section 144, the DM should be extremely careful and fully satisfied that there is sufficient ground for proceeding under this Section. An order passed when there is no “emergency” is without jurisdiction. And before proceeding under this Section, the magistrate should hold an inquiry and record the urgency of the matter. For the purposes of Section 144, it is only the magistrate issuing the order who should believe that apprehension of nuisance or danger exists. This is a subjective satisfaction based on the information, intelligence reports and other material that have been brought to his notice. No order can be passed under this Section on the complaint/representation of any party. Neither can anybody—High Court, government or police—goad the magistrate into it. B ut of late, such essential requirements are more observed in the breach than compliance. A typi- cal example is the Section 144 order promulgated at Tuticorin in Tamil Nadu on May 21, 2018, which led to an extreme form of police repression that claimed the lives of 13 people and the limbs of many more. For years, people of this small port town have been waging a struggle against Vedanta Limited’s Co- pper Smelter Plant (Sterlite, which is a subsidiary of Sterlite Industries, a company owned by Vedanta) which has been poisoning the water they drink and the air they breathe. In their arrogance, this private entity demanded the DM impose Section 144 to protect their personnel, plant and machinery. When the DM did not oblige, they moved the Madurai Bench of the Madras High Court for a writ of mandamus to direct the DM to do so. Surprisingly, without jurisdiction, a High Court judge determined, based on a pamphlet supplied by the offending party, that there would be a serious law and order situation and therefore Section 144 should be imposed in Tuti- corin or the DM would be guilty of “de- reliction of duty” and the “Court would be justified in invoking its powers under Article 226 of the Constitution”. On re- ceipt of this order, the superintendent of police of the district wrote a letter to the DM on May 21 virtually dictating the Section 144 order as it was pronounced later. This is just not permissible. In the meantime, Tuticorin was con- verted into a fortress with a formidable police force comprising an additional director general of police, four inspector generals, two deputy inspector generals, 15 SPs and scores of additional SPs, deputy SPs and about 3,000 police personnel along with squads of comman- dos. Sure enough, the “prohibitory order” issued by the DM abiding by the High Court diktat and the SP’s recommendation brought ruthless “Police Raj” repercussions seen in the “massacre of innocents” the next day, ie, on May 22, 2018. On that day, one saw terrifying visuals of trained sharp-shooters per- ched on a police van and public building shooting unarmed “protesters” with self- loading, semi-automatic rifles with the pronounced intention (heard over audio) to kill. All this was done to pander to the wishes of an MNC. This was acknowledged by the Sterlite Copper CEO, P Ramnath, on the day of the massacre: “I totally regret what happened today. It was totally uncalled for and is really unfortunate. We had, in fact, taken all the precautionary steps by getting the court order for Section 144.... Although TheSection144orderpromulgatedat TuticorininTamilNaduonMay21,2018, ledtoanextremeformofpolicerepres- sionthatclaimedthelivesof13people andthelimbsofmanymore.
Lead/ Section 144, CrPC/ MG Devasahayam 16 March 2, 2020 we expected it to be peaceful given Section 144 and considering the efforts made by the police and the collectorate.” Thus Section 144 was used as a physical weapon against democratic voices. Now, the Moradabad district adminis- tration in UP is using this Section as a financial weapon by slapping Imran Pratapgarhi, a poet-politician, with a fine of Rs 1.04 crore “for violating Section 144” by participating in an anti- CAA protest. A notice issued by the additional DM-City asking him to pay said: “One company of Rapid Action Force and a half section of Provincial Armed Constabulary have been deployed at the protest site. It amounts to a total expenditure of Rs 13.42 lakh per day...the total sum spent on security amounts to Rs 1,04,08,693.” What a way to protect the fundamental right of freedom of speech and assembly! I n the police commissionerate system, things are worse. Take the example of Chennai metropolis. In an autocratic manner, the Chennai police insist that citizens should get “permission” to perform even basic democratic rights and duties. The mere mention of a mild protest sends them into a tailspin, and a posse of police personnel much larger than the “protesters” is deployed to intimidate them. More often, their attitude is menacing and arrest/detention without any charge has become routine. Even women are not spared and ladies drawing kolam in front of their homes are detained. The Chennai City Police is doing all this by grossly abusing/misusing Section 41 of the Madras City Police (MCP) Act, 1888, an anachronistic and archaic colonial legislation meant to ruthlessly crush any protest or dissent against British rule. By no stretch of imagination can this be relevant in free India. Sub-Sec- tion 41(1) of the MCP Act does not obli- gate citizens to seek “permission” from the police for conducting any assembly or meeting in a public place. And certainly not in a private place or hall. The Section only authorises the police commissioner to regulate. It does not give him any powers to “prohibit” or “prevent” any assembly. Such power is found only under Sub-Section 41(2): “… Commissioner may, by order in writing, prohibit any assembly, meeting or pro- cession if he considers such prohibition to be necessary for the preservation of public peace or safety.” This sub-section is redundant and should have been scrapped as soon as the Code of Criminal Procedure was enacted by Parliament in 1973 incorpo- rating Section 144 which gives this power and authority to DMs. As we have seen, the prohibitory order is draconian. But it has built-in checks and balances and clear Supreme Court guidelines. But Sub-Section 41(2) of the MCP Act has none and by applying this on a non-stop basis, the police become dictatorial. As the Chennai police chief is vested with police and magisterial powers under the MCP Act and CrPC, respectively, this is a “double jeopardy” for citizens, with the commissioner acting as super-cop and magistrate. Democracy and fundamental rights are being routinely jeopardised by abusing legal provisions meant only for emergency situations. Politicians wanting to hold on to power and carpetbaggers amassing wealth may want it. Should civil servants who have sworn to uphold democracy and fundamental rights be party to this? The jury is out on this. —The writer is a former Army & IAS officer TheMoradabaddistrictadministrationis usingSection144asafinancialweapon byslappingImranPratapgarhiwithafine ofRs1.04crore“forviolatingSection 144”byattendingananti-CAAprotest. Twitter.com NO RULE OF LAW A protest being quelled by the Chennai police who often arrest or detain people without any charge
My Space/ Contract Labour Prof Upendra Baxi 18 March 2, 2020 HE practice by a two judge-bench in referring issues to a larger bench has been institutionalised to perfection by the apex court. Surely, when decisions of a two-judge bench conflict inter se, it is often thought prudent to refer the matter to the chief justice of India (CJI) to constitute a larger bench which should decide the binding law under Article 141. Legal certainty is here considered integral to doing of justice. It is on this understanding that justices and legal professionals have achieved trans- actions of certainty in law. Future courts may tell us whether or not this produces legal certainty; the referring benches seem certainly to hope that this will be the case. Not all decisions, even when seem- ingly at conflict, are referred to a lager bench. In the case referred to—Krishna Gopal (February 9, 2020) which referred the entire matter to the CJI to convene a larger bench—the referring bench cites a decision of Justice AK Sikri that seeks to apply the doctrine of harmonious construction in situations of conflicting opinion (Para 21). However, the justice effects of reference to a larger bench provide some normative standards by which this is warranted. Such standards are scarcely exhausted by mere reference to conflicting decisions of two-judge benches but by reference to the contexts of different decisions in the same domain. Different statutory auspices render unjust any one-size-fits-all reference to a larger bench. Much would here depend though on how Article 32 guarantees enforcement of constitutional rights— seen as lying only within the power of the Court or accompanied with the duty to provide constitutional justice. Justices Dr Dhananjaya Y Chand- rachud and Ajay Rastogi in Krishna Gopal (in the dispute between temporary workmen and ONGC) requested the learned chief justice to constitute an appropriate bench to reconsider the decision in PCLU (2015). That decision needed reconsideration about the inter- pretation “placed on the provisions of clause 2(ii) of the Certified Standing Orders”; “the meaning and content of an unfair labour practice” under the Fifth Schedule of the Industrial Disputes Act and “the limitations, if any, on the power of the Labour and Industrial Courts to order regularisation in the absence of sanctioned posts”. Prima facie, the reference seems justified but one ought to ascertain from the referring order whether the conflict among the two-judge benches justly warrants it. It is triggered primarily by the PCLU (Oil and Natural Gas Corp- oration Limited v Petroleum Coal Labour Union, 2015), which is a quar- Shouldtherebeamultiplicity ofjurisdictionalauspices whichcanbeseenascreating aconflictinanycase? A Paradigm of Labour Injustice? T LABOUR RIGHTS Coal Workers’ Federation protests in Asansol
| INDIA LEGAL | March 2, 2020 19 ter-century-old saga of the battle of legal wits between the management and the workmen! All the courts before the apex court had already ordered the regularisation of the temporary employees. Justice V Gopala Gowda (speaking also for Justice C Nagappan) upheld the validity of the Industrial Employment (Standing Orders) Act, 1994. This order cannot be overcome by any company policy, for to do so would be to abandon the “sunny” days belief that the “economic law of demand and supply in the labour market would settle a beneficial bargain”—at law “they venerated as natural law” (Para 33). One hopes that the indictment of per incuriam does not extend so far as to invalidate this noble belief! The referring bench states that the PCLU decision is not “prima facie cor- rect”. Why so? Because it feels that the decision goes too far in ruling that “the workmen upon completion of 240 days service in a period of 12 calendar months … are entitled for regularisation of their services into permanent posts of the corporation” or that they have acquired a “valid statutory right” (Para 17). But the referring bench does not consider fully the argument that acting otherwise is unconstitutional and illegal because “the corporation which is an instrumen- tality of the State under Article 12 cannot act arbitrarily or unreason- ably”. On the facts of the case here, that action of the corporation cannot but be considered (in the later phrase—regime of Justices Rohinton Nariman and Dhana- njaya Chandrachud (Kantaru Rajeevaru, 2019) as “manifestly arbitrary”. Similarly, it is not quite clear why the referring bench should not agree with decisions of coordinate benches which upheld the powers of industrial and labour courts in passing appropriate orders. In Uma Devi (2006), it has rightly been held by the apex court as applying only to High Courts and the Supreme Court; it does not oust the per- tinent provisions in either the standing orders or of the Industrial Disputes Act. Nor do the other decisions concerning reemployment on retrenchment or creation of new posts (which is rightly held as lying within the competence of the executive) seem relevant to warrant a reference. M ore startling is the observa- tion regarding what may constitute an unfair labour practice. No doubt, “under Section 2(ra) read with Item 10 of the Vth Schedule of the ID Act, the employer should be engaging workmen as badlis, tempo- raries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen”. The opinion written by Justice Chandrachud virtually underscores the last 13 words. But surely these words are capable of an alternate interpreta- tion which would suggest that the “object of depriving” the workers of the “benefits payable of permanent workmen” may be gathered implicitly or explicitly. That is, discrimination against such employees may be writ large or it may also be gathered from a course of conduct. Moreover, Durgapur Casual Workers (2014) could have thrown adequate light on the scope of Umadevi. Justices Sudh- ashu Jyoti Mukhopadhyaya (with Jus- tice Prafulla C Pant) maintain that it is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and High Courts (Article 226) should not issue “directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme”. But it does not “denude the Industrial and Labour Courts of their statutory power” to “order permanency of the workers who have been victims of unfair labour practice on the part of the employer”, when the “posts on which they have been working exist”. The referring bench sees a conflict in this holding; but is it illegitimate to ask why multiplicity of jurisdictional auspices by itself be seen as creating a conflict? Should Article 32 and 226 furnish the sole jurisdiction for all disputes on regularisation, regardless of other statutory auspices? We must finally note that in almost all the situations, detailed in this reference, the workmen involved were contract labourers asking for regularisation from state-owned statutory corporations who had continued their employment for very long periods of time. This practice has grown rampant, despite clear statutory intention to the contrary. Doing of justice required that the Court respected this intention of creating an implied statutory right rather than refer the matter to a larger bench. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer JusticesDrDhananjayaYChandrachudandAjay Rastogi(right)inKrishnaGopal (inthedispute betweentemporaryworkmenandONGC)requested thechiefjusticetoconstituteanappropriatebench toreconsiderthedecisioninPCLU(2015).
Excerpts/ Justice PD Desai Memorial Lecture 2020 20 March 2, 2020 N occasions such as this when a lecture series co- mmemorates the memory of a distinguished person- ality, it is conventional to begin with words of trib- ute. But for me personally, the opportu- nity to speak on this occasion has a deep personal connect. For me, this is a hom- age to the Master. Justice Prabodh Dinkarrao Desai had the unique distinction of being appointed as a Judge of the High Court of Gujarat when he was barely thirty-nine. Over a distinguished career, he func- tioned as the Chief Justice of three High Courts in succession, those of Himachal Pradesh, Calcutta and Bombay between December 1983 and December 1992. That a person who was appointed as a Judge of the High Court so young and yet was overlooked by destiny or the powers that be (whichever way one looks at it), must remain in contempo- rary times as another aberration in the process of judicial appointments. When the call for higher judicial office came, Chief Justice PD Desai preferred to retire from the Bombay High Court: so fiercely was he protective of his own independence and integrity.... India as a whole, boasts of significant diversity—heterogeneous along a number of intersecting dimensions, including race, class, religion, and culture. This diversity is further defined across several axes: cultural, social, and epis- temic and outlays diverse values, opinions, and perspectives.…In the plural mansion that is independent India, lies a population of over 1.3 billion people comprising several thousand communities. At the framing of the Indian Co- nstitution, questions arose on how independent India was to account for its heterogeneous polity. Uday Mehta elo- quently elucidates the immense range of social realities that the founding members were called upon to address and how the document they gave birth to sought to unify a divergent India by accommodating all people who called India their home. For the founders, the Dissent Not Anti-national Dissentisthe“safetyvalve”ofdemocracyandtolabelitanti- nationaloranti-democraticstrikesatthe“heart”ofIndia’s commitmenttoprotectConstitutionalvaluesandpromote deliberativedemocracy,JusticeDYChandrachudofthe SupremeCourtsaidrecently.Excerptsfromhisspeech: O
| INDIA LEGAL | March 2, 2020 21 Constitution was premised on both a deep trust in the tolerant nature of its citizens and an unshakeable belief that our diversity would be a source of strength. As Mehta observes, where the population was largely illiterate, the Constitution conferred universal adult franchise. Where the population was diverse and assorted, the Constitution conferred citizenship without regard to race, caste, religion or creed. Where the people were deeply religious, the Constitution adopted the principle of secularism. Where the Indian State stood united, the Constitution created a federal democracy with all the political instruments necessary for local self-governance. Diversity within the strands of the Constitution is a reflection of the diversity of her people. One cannot exist without the other…. T he Constitution enacted a complete ban on untouchability and its practice in any form. The Constitution also stipulates that no citizen is to be subject to any disability or condition with regard to access to public spaces and the use of public resources on the grounds of religion, race, caste, sex, or place of birth and that the state is empowered to legislate special provisions for the advancement of any socially and educationally backward class of citizens…. In elevating groups as distinct rights holders as well as empowering state intervention to address historical injustice and inequality perpetrated by group membership, the framers located liberalism within the pluralist reality of India and conceptualised every individual as located at an intersection between liberal individualism and plural belonging…. The true test of a democracy is its ability to ensure the creation and protection of spaces where every individual can voice their opinion without the fear of retribution. Inherent in the liberal promise of the Constitution is a commitment to plurality of opinions. However, the litmus test of any claim of commitment to deliberation is assessed by the response of two key actors—the state and other individuals. If you wish to deliberate you must be willing to hear all sides to the story. A legitimate government committed to deliberate dialogue does not seek to restrict political contestation but welcomes it. As early as the 19th century, Raja Ram Mohan Roy protested against the curtailing of the press and argued that a state must be responsive to individuals and make available to them the means by which they may safely communicate their views. This claim is of equal relevance today. The commitment to civil liberty flows directly from the manner in which the State treats dissent. A state committed to the rule of law ensures that the state apparatus is not employed to curb legitimate and peaceful protest but to create spaces conducive for deliberation. Within the bounds of law, liberal democracies ensure that their citizens enjoy the right to express their views in every conceivable manner, including the right to protest and express dissent against prevailing laws. The blanket India,committedtopluralism,isnotone language,onereligion,onecultureorone assimilatedrace.TheConstitutionpro- tectstheideaofIndiaasarefugetopeo- pleofvariousfaiths,racesandbeliefs. UNI
22 March 2, 2020 Excerpts/ Justice PD Desai Memorial Lecture 2020 labelling of such dissent as anti-national or anti-democratic strikes at the heart of our commitment to the protection of constitutional values and the promotion of a deliberative democracy. Protecting dissent is but a reminder that while demo- cratically elected governments offer us a legitimate tool for development and social coordination, they can never claim a monopoly over the values and identities that define our plural society. The employment of state machinery to curb dissent instills fear and creates a chilling atmosphere for free speech which violates the rule of law and de- tracts from the constitutional vision of a pluralist society. T he destruction of spaces for questions and dissent destroys the basis of all growth—political, economic, cultural and social. In this sense, dissent is the safety valve of democracy. The silencing of dissent and the genera- tion of fear in the minds of people go beyond the violation of personal liberty and a commitment to constitutional values—it strikes at the heart of a dialogue- based democratic society which accords to every individual equal respect and consideration. A commitment to pluralism requires positive action in the form of social arrangements where the goal is—to incorporate difference, coexist with it, allow it a share of social space. There is thus a positive obligation on the state to ensure the deployment of its machinery to protect the freedom of expression within the bounds of law and dismantle any attempt by individuals or other actors to instil fear or chill free speech. This includes not just protecting free speech, but actively welcoming and encouraging it. An equal obligation to thwart at- tempts to curtail diverse opinions rests on every individual who may not agree with opposing views. Mutual respect and the protection of a space for divergent opinions is the process of viewing every individual as an equal member of a shared political community where membership is not premised on sharing a unanimous opinion…. Taking democracy seriously requires us to respond respectfully to the intelligence of others and participate vigorously—but as an equal—in determining how we should live together. Democracy then is judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard, respected and accounted for. The great threat of pluralism is the suppression of difference and the silencing of popular and unpopular voices offering alternate or opposing views. Suppression of intellect is the suppression of the conscience of the nation. This brings me to the second threat to pluralism—the belief that homogeni- sation presupposes the unity of the nation…. As I have stated before, the framers demonstrated a commitment for the protection of India’s pluralist strands. For this reason, amendments to delete the right to propagate religion and to include a ban on dressing that identified with a religion were negatived in the Constituent Assembly. By negating these amendments, the Constituent Assembly asserted the place of plural expression in the public sphere and signalled a clear departure from the singular unification model. Similarly, even though it was unanimously agreed that the freedom to propagate religion was included within the freedom of speech, the assembly found it necessary to include a specific provision in Article 25 also stating that a heavy responsibility would be cast on the majority to see that minorities feel secure. A united India is not one charac- terised by a single identity devoid of its rich plurality, both of cultures and of values. National unity denotes a shared culture of values and a commitment to RIGHT TO DISSENT Lawyers (left) protesting against the CAA, the NRC and the police repression Anil Shakya
| INDIA LEGAL | March 2, 2020 23 the fundamental ideals of the Constitu- tion in which all individuals are guaran- teed not just the fundamental rights but also conditions for their free and safe exercise. Pluralism depicts not merely a commitment to the preservation of diversity, but a commitment to the fundamental postulates of individual and equal dignity. In the creation of the imagined political community‘ that is India, it must be remembered that the very concept of a nation state changed from hierarchical communities to networks consisting of free and equal individuals. India, as a nation committed to pluralism, is not one language, one religion, one culture or one assimilated race. The defence for pluralism traverses beyond a commitment to the text and vision of the Constitution‘s immediate beneficiar- ies, the citizens. It underlines a commitment to protect the very idea of India as a refuge to people of various faiths, races, languages, and beliefs. India finds itself in its defence of plural views and its multitude of cultures. In providing safe spaces for a multitude of cultures and the free expression of diversity and dissent, we reaffirm our commitment to the idea that the making of our nation is a continuous process of deliberation and belongs to every individual. No single individual or institu- tion can claim a monopoly over the idea of India…. Finally, the commitment to pluralism lies in the constitutional trust expressed by the framers on every individual.… An example of this constitutional trust and obligation is evident in the divergent view of the relations between majorities and minorities upon India gaining her independence. During the colonial rule, the Morley- Minto reforms recommended separate electorates for minorities. This recommendation for the first time introduced identity politics into the Indian regime by classifying groups as majority and minority.… When the Constituent Assembly was called to decide the fate of separate electorates in independent India, they decided that its inclusion was not essential to and even contrary to the requirements of a pluralistic society. They rejected separate electorates and dismissed the relevance of numeri- cal disadvantage in a polity…. The framers of the Constitution rejected the notion of a Hindu India and a Muslim India. They recognised only the Republic of India. As one member of the Constituent Assembly said—we should proceed towards a compact nation, not divided into different com- partments but one where every sign of separatism should go. As another member said—there will be no divisions amongst Indians. United we stand; divided we fall.... What is of utmost relevance today, is our ability and commitment to preserve, conserve and build on the rich pluralist history we have inherited. Homogeneity is not the defining feature of Indians. MA Kalam, a celebrated anthropologist wrote in a piece that: “a visible, dis- cernible, lively and successful engage- ment with diversity, is pluralism indeed. This definition calls upon us to look at each other and recognise that our differ- ences are not our weakness.” Our ability to transcend these differ- ences in recognition of our shared humanity is the source of our strength. Pluralism should thrive not only because it inheres in the vision of the Constitution, but also because of its inherent value in nation building. T oday I have attempted to share with you the vision and spirit of pluralism that I believe has always defined India. India is a sub-con- tinent of diversity unto itself. The mere mention of India evokes in every person a different idea which they associate with the nation. Anybody truly conversant with Indian history will tell you that the single defining hallmark of ancient India was its divergent, scattered and fragmented nature. It has been for centuries a land of vibrant diversity of religion, language and culture. Pluralism has already achieved its greatest triumph—the existence of India. The creation of a single nation out of these divergent and fragmented strands of culture in the face of colonial tyranny is a testament to the shared humanity that every Indian sees in every other Indian. The nation’s continued survival shows us that our desire for a shared pursuit of happiness outweighs the dif- ferences in the colour of our skin, the languages we speak or the name we give the Almighty. These are but the hues that make India and taking a step back we see how altogether they form a kaleidoscope of human compassion and love surpass- ing any singular, static vision of India. Pluralism is not the toleration of diversity; it is its celebration. TheConstitutionwaspremisedonanun- shakablebeliefthatourdiversitywould beasourceofstrength.Diversitywithin thestrandsoftheIndianConstitutionisa reflectionofthediversityofherpeople.
Supreme Court/ Community Kitchens 24 March 2, 2020 Supreme Court bench on February 17 slapped an additional fine of Rs five lakh on Maharashtra, Delhi, Manipur, Odisha and Goa for not filing counter-affidavits to a plea seeking the setting up of pan-India community kitchens. This makes the overall fine payable by each state Rs ten lakh. The bench, headed by Justice NV Ramana, also refused to waive the fine, as requested by several states. The attorney general, representing the centre, said an affidavit had already been filed and another would be filed soon with respect to the scheme. On February 10, a bench headed by Justice Ramana observed that only seven states and Union Territories (UTs) had filed affidavits. These are: Andaman and Nicobar Islands, Punjab, Karna- taka, Uttarakhand, Jharkhand, Naga- land and Jammu and Kashmir. The bench ordered that Rs one lakh be imposed on states which had failed to submit their replies but were filing it within 24 hours and Rs five lakh on those which had failed to submit their replies even after 24 hours. The fines were imposed for non- compliance with a September 2, 2019, order which had directed them to file their replies. Petitioners Anun Dhawan, Ishann Dhawan and Kunjan Singh told the apex court that the “Right to Food” was a fundamental right which was well- recognised under national and international laws as it protects the right of people to access food and feed themselves. They said that the right to food is interlinked with the right to life and dignity as envisaged in Article 21 of the Constitution and therefore, it requires that food be available, accessible and adequate for everyone without discrimination or inequality. The lack of accessi- bility of food with adequate amount of nutrition would be a gross violation of Articles 14, 21, 38, 39, 47 and 51(c) of the Constitution. They contended that the Supreme Court from time to time had held that the right to life includes the right to live with dignity and all those basic rights which go along with it, including the right to food. The petitioners also cited several important cases including Francis Coralie v. Union Territory of Delhi and Paramanda Katara v. Union of India. Strong reliance was also placed on the judgment delivered by Justice PN Bhagwati in Kishen Pattayanak and Ors. v. State of Orissa, wherein it was held: “No one in this Country can be allowed to suffer deprivation and exploitation particularly when social justice is the watchword of our constitution.” The petitioners also mentioned Peo- ple’s Union for Civil Liberties v. Union of India & Ors, 2013, wherein the apex court had directed all states and UTs to implement various food-related schemes. Reference was also made to state- Just Desserts TheCourtimposedheavyfinesonstatesandUTs whichhadn’trepliedtoapleatosetupcommunity kitchenstocombatmalnutrition By Ananthu Suresh A ThebenchheadedbyJusticeNVRamana refusedtowaivethefine,asrequestedby severalstates.Thebenchobservedthat onlysevenstatesandUnionTerritories hadfiledaffidavits.
| INDIA LEGAL | March 2, 2020 25 funded community kitchens being run in Tamil Nadu (Amma Unavagam), Rajasthan (Annapurna Rasoi), Andhra Pradesh (Anna Canteen), Karnataka (Indira Canteen), Odisha (Ahaar Centre), Jharkhand (Mukhyamantri Dal Bhat) and Delhi (Aam Aadmi Canteen) which serve meals at subsidised rates under hygienic conditions. They contended that all these community kitchens were established with the object of combating hunger and malnutrition in India. They said that “the rationale behind Amma Unavagam scheme is akin to soup kitchen of the US and Europe to feed the poor by serving a limited menu of nutritious cooked food at below the market price”. These soup kitchens are staffed by voluntary organisations from churches or community groups. They further said that these state-funded community kitchens would not only combat chronic hunger and malnutrition problems in India but would be a great tool to provide employment as well. One of the suggestions of the petitioners was that such community kitchens could be managed either with state funding or public-private partner- ship with funding a part of corporate social responsibility. T he petitioners also relied on several reports to show that malnutrition and hunger were soaring at an alarming rate in the country. The petition stated that “it has been reported in 2017, by the National Health Survey (NHS) that approximately 19 crore people in the country are compelled to sleep on empty stomach, every night. Moreover, the most alarming figure revealed is that approximately 4,500 children die every day under the age of 5 years in our country resulting from hunger and malnutrition, amounting to over 3 lakh deaths every year owing to hunger of children alone. Additionally, it has been reported that 7,000 persons (including children) die of hunger every day and over 25 lakh persons (including children) die of hunger annually”. The Global Hunger Index 2018 report prepared by Concern Worldwide and Welthungerhilfe ranked India at 103 out of 119 countries. India scored 31.1, indicating that it suffers from a level of hunger that is critical and serious. In addition, the Food and Agriculture Report, 2018 stated that India houses 195.9 million of the 821 million undernourished people in the world, accounting for approximately 24 percent of the world’s hungry. They said that in spite of having a plethora of schemes and programmes to eradicate the issues pertaining to hunger, malnutrition and food security, the desired result was a distant reality. This is because these schemes were ridden with problems and the country was still grappling with them on a large scale. Their plea to the Supreme Court was: To direct the chief secretaries of all states and UTs to formulate a scheme for the implementation of community kitchens and to further ensure that no person sleeps on an empty stomach. To direct the National Legal Services Authority to formulate a scheme to further the provisions of Article 51A of the Constitution in order to mitigate deaths resulting from hunger, malnutrition and starvation. To direct the central government to create a national food grid for those beyond the scope of the public distribu- tion scheme. The matter is listed for further hearing on April 8. FOOD FOR ALL A community kitchen in Patna
Supreme Court/ Rotovac Clinical Trial 26 March 2, 2020 Y withholding data on clinical trials of a vaccine conducted on infants to combat death caused by diarrhoea, the government is infring- ing upon the fundamental rights of people under Articles 14 and 21 of the Constitution. This was the gist of a petition filed in the Supreme Court to bring into the public domain the data related to clinical trials conducted on 6,799 infants of Rotavirus vaccine which was launched by the health ministry. Last week, when the matter came before a bench of Justice Arun Mishra, the Court asked the government to submit documents about guidelines framed by the Indian Council of Medical Research (ICMR) in Novem- ber last year relating to the research on the vaccine. The vaccine, Rotavirus, developed by Hyderabad-based Bharat Biotech, was launched in March 2015 after getting government approval following clinical trials to gauge its efficacy and safety. The trials were conducted at three centres— Delhi, Pune and Vellore—to measure the safety and effectiveness of the vaccine. The duration of the trial was two years within which the infants were adminis- tered the vaccine and its safety was me- asured according to the number of intussusceptions. Intussusceptions are intes- tinal obstructions that may need an ur- gent surgery to prevent death among infants and can be diagnosed by ultraso- und examination. After studying the aggregate data of all three centres, an expert member of the National Technical Advisory Group on Immunization—the apex advisory body of the government on immunisation, deduced that the number of cases of intussusceptions in the infants from the Vellore centre was the highest and there was a huge difference in the number of cases of intussusceptions in Delhi and Vellore. The issue was also raised by a UK medical journal which, after a study of the aggregated results of these clinical trials, raised certain questions about the efficiency of the vaccine and various risks associated with it. Consequently, it was decided that de- tails regarding centre-wise data be ob- tained in order to gauge the efficacy and also to ascertain whether a certain section of the population is more suscepti- ble to adverse effects of the vaccine than others and whether it is safe in all areas or if people of some specific areas are more likely to be harmed by it. In fact, the rationale behind conducting multi- centre trials was precisely this. But despite several RTI requests, the government has thrown a veil of secrecy over the relevant data. Letters were dis- patched to the Prime Minister’s Office which in turn is said to have asked the Subject Experts’ Committee to look into the data from Vellore. Even that order has not been complied with, despite being aware that not providing complete results of clinical trials involving human beings is a violation of the ethics of medical research and global norms which govern clinical trials. Also, such concealment will cause injustice to the thousands of infants who participated in this study, to the researchers and to the medical/scientific community. In fact, it is all the more crucial to study the segregated data because the government has now launched the vaccine in four different states. A large number of infants might be adminis- tered the vaccine in these states. It would thus be highly unethical to proceed with immunisation without informing the public of the risks and adverse effects associated with the vaccine. The PIL filed in 2016 in the Delhi High Court will come up for hearing in the apex court next week. Veil of Secrecy APILaskstheSupremeCourttodirectthegovernmentto releasedataonclinicaltrialsofRotovac,conductedatthree testcentres,forcombatingdeathsininfantsduetodiarrhoea By Simran Singh B FIGHTING INFANT MORTALITY The oral Rotavirus vaccine being adminis- tered to an infant to reduce risk of diarrhoea uib.no
| INDIA LEGAL | March 2, 2020 27 Supreme Court/ MP Woman Judge Supreme Court bench of Chief Justice SA Bobde and Justices BR Gavai and Surya Kant appreciated a woman judge for her application for reinstatement after she had resigned levying sexual harassment allegations against a Madhya Pradesh High Court judge. Soon after levying the allegation, she was transferred to Sidhi, 424 km away from Gwalior where she was earlier posted. The bench said that the conflict could find a satisfactory end as there was a new chief justice in the Madhya Pradesh High Court. Chief Justice Bobde said: “We must compliment if she wants to be a career judge.” However, Ravindra Srivastava, appearing for the MP High Court, argued that her re-establishment could have consequences. The bench asked senior advocate Indira Jaising whether her client (the woman judge) would accept reinstatement, if given in some other state. Jaising said she would pre- fer any state in the northern part and nation was cleared after a full-court meeting of the High Court. However, the matter was reconsidered and the panel refused to take back the resignation. But Jaising contended that in the inquiry into the sexual harassment charges it was found that she had been transferred in violation of the High Court’s transfer policy. Jaising added that there was a total lack of “human face” in ordering the transfer. The apex court bench then said that even if she was transferred validly, she would have completed her tenure of three years at the new place and would have been due for a fresh transfer. It said it wanted the issue to be brought to a decent conclusion and asked Srivas- tava to talk to the High Court to rein- state her. Srivastava said that if she was reinstated, it would look as if the High Court was wrong in transferring her in the first place. CJI Bobde said that it would appear worse if the bench passed an order directing her reinstatement, since the issue involves a judicial officer and a High Court. Addressing the retirement issue of the MP HC judge, the Court said that the situation had drastically changed and no one would be affected by the woman judge’s reinstatement. Jaising said that the former judge wanted reinstatement and could leave the remuner- ation of the intervening years, but she expected to retain her seniority. CJI Bobde appreciated her attitude and asked Srivastava to consider her request without monetary benefits. Justice Kant told Srivastava that it was a simple issue. She could submit an application seeking withdrawal of her resignation and the High Court would allow it. The bench directed the counsel for the MP High Court to report this to the Court. The bench also observed that once the High Court had reinstated her as additional district judge, the apex court could order her transfer to another state. The Court will hear the matter in March. GritWinsKudos Abenchhassuggestedthataformerdistrictjudgewhohad resignedafterallegingsexualharassmentbyanMPHighCourt judgebereinstated,andcomplimentedherforherattitude By Gautam Mishra complimented the woman judge by saying that her work was impeccable. She further said that she was appointed on the district Vishakha Committee and her Annual Confidential Report was excellent as well. Srivastava said that the woman judge had resigned on her own and her resig- A TheSCbenchsuggestedthattheHigh Courtreinstatetheladyjudge. ChiefJusticeBobde(above)asked thecourttoconsiderherrequest withoutmonetarybenefits.
Supreme Court/ HC Judges’ Transfers 28 March 2, 2020 HE Supreme Court Collegi- um has recommended the transfer of three High Court judges—Justice Ravi V Malimath from Karnataka to Uttarakhand, Justice S Muralidhar from Delhi to Punjab & Haryana and Justice Ranjit More from Bombay to Meghalaya. Justice Malimath, who is likely to take over as a judge of the Uttarakhand High Court, is also president of the Kar- nataka Judicial Academy and executive chairman of the Karnataka State Legal Services Authority. Born on May 25, 1962, Justice Mali- math is the son of the late VS Malimath who was the chief justice of the Kerala and Karnataka High Courts. Justice Malimath first enrolled as an advocate on January 28, 1987, in Bangalore. He practised constitutional, civil, criminal, labour and service law, mainly in Karnataka High Court. He was appointed additional judge in the same court on February 18, 2008, and permanent judge on February 17, 2010. After Chief Justice AS Oka, he was the next most senior judge of the Karnataka High Court. On January 11, 2020, as president of the Karnataka Judicial Academy, Justice Malimath took pride in stating that it had trained as many as 4,000 judicial officers and was striving for excellence. He was speaking at the inauguration ceremony of Phase-1 of the Academy’s new building at Crescent Road, Benga- luru. Chief Justice of India SA Bobde, Chief Minister BS Yeddyurappa and Chief Justice Oka were among the dig- nitaries at the event. In his long career, Justice Malimath has handed out some noteworthy judg- ments. On January 21, a division bench ruled that the transfer of officers at the instance of the chief minister and minis- ters’ recommendation was illegal. It observed: “The elected representatives shall not interfere in the transfer of offi- cials working at autonomous institutions. The previous ruling by the single bench that all such transfers are illegal is justified.” Justice Malimath also sat on the division bench that issued guidelines for lower courts and public prosecutors across Karnataka to provide victim-ori- ented justice by awarding appropriate compensation to victims or their depen- dants suffering loss or injury due to crime. “While imposing punishment, courts should not only keep in view the rights of criminals, but also rights of victims and society at large,” the bench, comprising Justices Malimath and HP Sandesh, said. The Supreme Court Collegium’s recommendations will have to be approved by the law ministry. If the government sends it back, the Collegium has the option to reiterate its decision. The judges have the option of requesting the Collegium to reconsider its decision. Besides Chief Justice Bobde, the other members of the Collegium are Justices NV Ramana, Arun Mishra, RF Nariman and R Banumathi. CollegiumRecommends TransferofJudges ThreejudgesbelongingtotheKarnataka,DelhiandBombayHighCourtsarelikelytobe postedtoUttarakhand,Punjab&HaryanaandMeghalayaHighCourts,respectively By India Legal Bureau T NEW ROLES The Supreme Court Collegium recommended the transfer of three High Court judges—(from far left) Justice Ravi V Malimath; Justice S Muralidhar and Justice Ranjit More
F ootage of the events earlier this month when Delhi police stormed the Jamia Millia University library have gone viral again, but some miscon- ceptions and biased or wrong reporting have also come to light. On that night, India Today television aired footage under a huge “Exclusive” banner which showed the police raid. The footage, from a CCTV video, was handed over to the channel by the Special Investigation Team of Delhi police and was used to claim that students entered the library with stones in their hands. Other news organisations carried the same clip which showed a student with flat objects in each hand. The fact-checking website Alt News has now shown the same clip in a higher resolution using special slow motion technology. It shows that the student was holding a wallet in one hand and a mobile phone in the other. Viewed at normal speed and in the ver- sion given to channels by the SIT, it was easy to buy the Delhi police line that the student was armed with stones. Techno- logy can hide the truth and show it too. T he latest Indian Readership Sur- vey (IRS) figures show Punjab’s dominance in the north Indian market in terms of newspaper growth and, consequently, advertising. The difference is that the advertising in the Punjab press ranges from low-end products to high-end fashion and luxury products. Moreover, what continues to drive growth is that the readership covers English, Hindi and Punjabi. The Tribune is for English readers, Punjab Kesari or Dainik Bhaskar for Hindi readers and Ajit and Jagwani for Punjabi readers. Here’s what makes it so attractive for advertisers—according to the National Family Health Survey, resi- dents of Delhi and Punjab are the rich- est in India. While Punjab-based man- ufacturers—from bicycles to tractors, sports goods, agricultural machinery and yarn—advertise regularly in local newspapers, thanks to the large number of high net worth individuals in cities like Ludhiana and Chandigarh and general affluence and rising aspi- rations, they are equally matched by makers of luxury products from cars, jewellery and branded apparel. No wonder, the press in Punjab elicits such envy from their bigger national counterparts. The Punjab Phenomena | INDIA LEGAL | March 2, 2020 29 Media Watch I ndian television news channels are going global, but not in a good way. An American journal- ist put up a video on Twit- ter of a guest being ha- rangued by a finger-wag- ging television anchor, Deepak Chaurasia (above right) of News Nation, with the comment: “Getting quite addicted to Indian television news, Fox News is so tame in comparison.” Fox News is the popular US broadcaster accused of bias in favour of the Re- publican Party and ultra- conservative causes, while using toxic propaganda to trash the Democratic Party. While many Indian channels, including News Na- tion, adopt the same editorial approach regarding Narendra Modi, the Twitter exchange on the Chaura- sia video clip was hilarious and embarrassing. The BBC’s Stephen Sackur (above left), known for his aggressive style of interviews on his programme Hard Talk, tweeted: “I watched this and realised I’d been doing BBC Hard Talk all wrong.” Chaurasia, incidentally, had been cha- sed away from Shaheen Bagh when he went there to cover the protests. The Noose Today Stone the Student
Opinion/ Forced Disappearances Col R Hariharan 30 March 2, 2020 HEN the world was celebrating Valentine’s Day on February 14, in Sri Lanka, hundre- ds of families of those who were forcibly disappeared observed it as “Missing Lovers Day”. They converged in Colombo and marched to the offices of Prime Minister Mahinda Rajapaksa and President Got- abaya Rajapaksa demanding justice, truth and reparation for the loss of their loved ones. They dispersed only after the PM pr- omised to look into their complaints about those missing during the operations against Janatha Vimukthi Peramuna Marxist extremists during 1988-89. An official statement issued stated that the additional secretary to the PM had been tasked with taking follow-up action. This is not the first time these families have agitated, nor the first time pro- mises have been made to them by suc- cessive presidents. In addition to the largely Sinhala mothers and wives who observed it as “Missing Lovers Day”, for the last three years in the Northern Pro- vince, Tamil families have been agitating for government accountability for over 20,000 of their kin who “disappeared” during and after the Eelam war that ended a decade ago. Gotabaya Rajapak- sa, who was defence secretary during the last phase of the Eelam war, acknowledged that more than 20,000 who disappeared during the civil war were dead. However, after a furore over these remarks, the presidential media division clarified that he also said that after “necessary investigations”, steps would be taken to issue death certificates and provide support for the families. Sri Lanka has one of the world’s highest numbers of enforced disappearances, with a huge backlog from the late 1980s. In 2016, former President Chan- drika Kumaratunga, while heading the Office for National Unity and Reconcili- ation, told reporters that various Cry,theBelovedCountry Thousandshaveforciblydisappearedduetorepressiveregimesanddespitethisbeingagainst internationalconventions,therehasbeenlittleinterestbygovernmentstotrackthem A LONG, LONG WAIT Women holding placards on “Missing Lovers Day” in Colombo W lankainformation.lk
| INDIA LEGAL | March 2, 2020 31 commissions since 1994 had documented that 65,000 people were missing or “not found to be dead”. According to the Office on Missing Persons, set up by the government in 2018, up to 20,000 people could be missing since 1983. Over the years, enforced disappearances have been documented in 34 countries, including the US, Russia, China and in South Asia (India, Bangladesh, Nepal, Pakistan and Lanka). The most notorious of them all was Spain. Enfor- ced disappearances here took place between the period of the Spanish civil war and General Franco’s dictatorship (1939 and 1975) when about 1,14,226 people “disappeared,” according to a UN report. Cold War priorities of the US in support of military rulers too resulted in enforced disappearances in Latin America. During the “Dirty War” of Argentina, between 9,000 and 30,000 people “disappeared”. Disappearances in Colombia (around 20,000), Chile (2,279) and Gu- atemala (40,000-50,000 in civil war) are part of the dark history of Latin America. The US global war on jihadi terror, unleashed after Al Qaeda’s terrorist atta- cks on September 11, 2001, led to the coining of a new term—“extraordinary rendition”. This is the illegal transfer of a detainee to the custody of a foreign government for detention and interrogation. The CIA launched a secret extraordinary rendition and detention programme worldwide with the coopera- tion of over a dozen governments. According to Open Society Found- ations’ Justice Initiative report, by 2013, at least 136 persons were “extraordinari- ly rendered” by the CIA. At least 54 governments were reported to have participated in the programme, giving it unof- ficial international legitimacy. The US Justice Department authorised the CIA to use what President George W Bush called “enhanced interrogation techni- ques”, a euphemism for the use of torture during interrogation. According to Amnesty International’s June 2007 report, at least 39 detainees, who were believed to have been held in secret sites over- seas by the US, were missing. The US Department of Defense kept the identity of the detainees held in Guantanamo Bay detention camp secret for four years, releasing an official list of 558 detainees on April 20, 2006, after a court order. Another list published a month later listed 759 individuals who had been held in Guantanamo. T he UN General Assembly had been concerned about enforced disappearances from 1973 onwards. It culminated in the framing of the UN General Assembly resolution 47/133 on December 18, 1992, proclaiming the Int- ernational Convention for the Protection of All Persons from Enforced Disappea- rances (ICPED). The Convention expl- ains the responsibility of member states regarding enforced disappearance, not only by defining it but also their obligations and procedure. Article 1 of the ICPED states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance”. Article 2 defines enforced disappearance “to be the arrest, detention, abduc- tion or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquies- cence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or wher- eabouts of the disappeared person, which place such a person outside the protection of the law”. It is significant that Article 5 states “the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.” Enforced disappearance is also recognised as part of the general definition of the 1998 Rome Statute establish- ing the International Criminal Court. Equally significant is Article 7 enjoining each State which is a party to the Conv- ention to “make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness”. This underlines the need for states to specifically recognise it as a criminal act. Internationally, the right of families TheUS Departmentof Defensekeptthe identityof thoseheldin GuantanamoBay detentioncamp secretfor fouryears. commons.wikimedia.org
Opinion/ Forced Disappearances/ Col R Hariharan 32 March 2, 2020 to know the truth relating to enforced disappearances or missing persons is recognised in a number of instruments. Article 32 of Protocol I to the Geneva Conventions establishes “the right of families to know the fate of their [disappeared] relative”. Article 24 of the ICPED states: “Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.” South Asia has a poor record with regard to enforced disappearances. The International Commission of Jurists’ August 2017 report—”No More Missing Persons’ Criminalisation of Enforced Disappearance in South Asia”—provides an analysis of how not only in Sri Lanka, but in India, Bangladesh, Nepal and Pakistan, “enforced disappearance has been used against nationalist or sepa- ratist groups or in the name of counter- ing terrorism or insurgency”. The report, analysing the criminalisation of the practice under national laws, says the five South Asian states failed in fulfilling their obligations “to ensure acts of enforced disappearance constitute a distinct offence under national law” in their domestic legislation. However, ever since the report was published, Sri Lanka has made enforced disappearance a criminal act by enact- ing ICPED Act No 5 of 2018. The moot point is whether the new enactment would be applied to clear the huge backlog of 20,000-plus cases. While India and Pakistan have signed the ICPED, they have not ratified it, nor have they initiated special legislations to recognise enforced disappearance as a distinct criminal offence. Bangladesh and Nepal have neither signed the protocol nor ratified it. A ccording to the Association of Parents of Disappeared Persons (APDP) in J&K, there have been over 8,000 cases of enforced and invol- untary disappearances between 1989 and 2009. The state and central governments say around 4,000 are missing, most of whom are believed to have crossed over to PoK. In January 2017, Chief Minister Mehbooba Mufti told the state assembly that 4,008 persons who were missing from the state were in PoK for arms training. The Office of the United Nations High Commissioner for Human Rights (OHCHR) released its first report on the human rights situation in J&K and PoK on June 14, 2018. It focused on allegations of serious human rights violations, notably excessive use of force by Indian security forces that led to numerous civilian casualties, arbitrary detention and impunity for human rights violations and human rights abuses by armed groups allegedly supported by Pakistan. The report found that human rights violations in PoK were more structural in nature; these included restrictions on freedom of expression and freedom of association, institutional discrimination of minority groups and misuse of anti- terror laws to target political opponents and activists. The report made a wide range of recommendations to India and Pakistan and also urged the Human Rights Council to consider its findings, including the possible establishment of an international commission of inquiry to conduct a comprehensive independent investigation into allegations of human rights violations in Kashmir. On September 10, 2018, the High Commissioner for Human Rights informed the Human Rights Council during its 39th session that the OHCHR report’s findings and recommendations had “not been followed up with mean- ingful improvements, or even open and serious discussions on how the grave issues raised could be addressed”. The report said neither India nor Pakistan had taken concrete steps towards providing the OHCHR with unconditional access to their respective sides of the Line of Control. It is obvious that the issue of enforced disappearance is linked to compul- sions of realpolitik of a nation, as much as national security. It is directly related to the overall standards of rule of law, political governance and observance of human rights. When states are combating transnational terrorism, it becomes imperative that instruments of power of the State are used in a calibrated fashion to ensure that innocent populations are not affected. There is a need to maintain free flow of information to the public to clear their complaints. This will improve the credibility of the State. —The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute OF PAIN AND LOSS Protesters in Kashmir spotlight their plight apdpkashmir.com

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