The Uncared-for Plight of Uighur Muslims in China | Guest Post by Mahak Agarwal

  

Seven decades ago, the world witnessed a dreadful Human Rights violation. Hitler's regime pledged to wipe out every human belonging to the Jewish sect residing on the German Land. People were tormented, put in concentration camps, locked in gas chambers, and sometimes even executed publicly. After some of those deadly years, the international community lambasted Hitler's actions and pledged to prevent targeted hate crimes against communities. 

 

Seventy years later, here we are again. With its head buried in the sand, the international community chose to remain silent while Uighur Muslims in China face religious, cultural, and ethnic Genocide.

 

China, mainly dominated by the Han Chinese community, is also home to several ethnic minorities. The Uighurs are one such ethnic community, residing in Xinjiang province, which is also the largest autonomous province of China. Given the nature of China's powerful dictatorship regime, even a large population of around 10 million Uighurs living in this region could not escape the abominable cruelty that it subjects these people to.

There's no denying that the Dragon's actions, on many fronts, are becoming inhumane and barbaric. 

 

Who are Uighurs?

Uighurs are Sunni sect Muslims of Turkish ethnicity, recognized as native to the Xinjiang region. They constitute around 45% of the population of this region. They declared themselves independent in the 20th century; China took control of the area in 1949. Since then, the process of Sinicization (a method of bringing people of non-Chinese descent under the influence of Chinese culture) is getting into high gear. 

 

A look into Xinjiang Province

Xinjiang, as mentioned earlier, is the largest autonomous province of China. Since its annexation, the Chinese have been cautious about protecting Xinjiang due to its strategic importance. Landlocked from all sides, it is home to China's most important resources, i.e., one-third of China's natural gas and oil reserves, 60% of China's total cotton output, 38% of China's coal reserves, to name a few. Xinjiang sits at the heart of China's Belt and Road Initiative and acts as Beijing's gateway to Europe and Central Asia. This may be one reason for the insecurity of China's Communist Party (CCP) of lending out this region to a community of non-Chinese ethnicity. 

 

China's actions 

To be precise and apt: It is mercilessly killing, torturing, and wiping off a whole class. The persecution has been going on for a long time now. From demolishing over ten-thousand mosques to making Uighurs a victim of forced assimilation, CCP has manifested its diabolical character to the world. Humanity has again been forgotten as Uighurs are being looked down on by China's ruling party. 

 

The Uighur Muslims have been put in concentration camps, popularly called by CCP as "Re-Education Camps," "Joyful Training Schools," where Uighurs are forced to speak and act Chinese. In the name of 'Correcting Extremist Behaviour,' China subjects these Muslims to political indoctrination. The state surveillance system in the region doesn't let the Muslims carry out their religious and traditional practices. People aren't allowed to chant the Quran; men and women can't wear their formal dresses. Such is the stolidity exhibited in this country, seen nowhere else.

 

In order to shrink the Uighur population, women are either made to sleep with Han-Chinese men or are subjected to forced sterilization or abortion. What is it, if not a 'State-sanctioned rape'?

 

And the effects of this "Population Shrink Drive," as we may call it, is real. The number of Uighurs living in Xinjiang was 76% of the population back in 1949; it has now been reduced to just 40%. Out of around 10 million Muslims living in the region, about 2 million are behind bars for no rhyme or reason. Even those moving freely are under high state surveillance, curbing freedom in any form. 

 

The stance of the international community

The Islamic nations, the so-called 'Defenders of Faith,' measure the importance of brethren by China's cheques. Out of the 37 Muslim-majority countries that back Chinese suppression, 14 are members of the Organization of Islamic Cooperation. OIC, an organization that calls itself 'Collective voice of Muslims' worldwide, too genuflected to the CCP for its money. It doesn't seem to have enough audacity to question the Dragon lest it fires back at them. Even countries like Pakistan, Turkey, and Malaysia, which have a record of speaking for Muslim Rights worldwide, have silenced themselves in front of China.

 

The whole world sits tongue-tied today, raising a meek voice, if at all, while Uighurs' sufferings are becoming unendurable each day.

 

Applicable international laws 

The world took a wake-up call after the Second World War and for the first time codified the crime of Genocide at an international level.

 

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), as it stands today, was the first human rights treaty adopted by the General Assembly of the United Nations on 9 December 1948. Its adoption not only exhibited the determination of the world to formulate resilient international human rights but also a resolute decision to safeguard each being from such atrocities.

 

This convention is binding on countries and obligates them to prevent Genocide, enact relevant legislation, and punish perpetrators. China, being a party to the Genocide Convention, is obligated to act in line with the convention, and if it doesn't, the world has the right to question and punish China for its sinful acts.

 

The Road Ahead

Turning a blind eye to the worst Human Rights violation of its time will put one and all in dire straits. The world cannot compensate for what happened with Jews seven decades ago, but it can surely stop CCP from setting another such horrifying example for generations to come. It's time the international community deterred and warned China of its sinful crime.

 

As a believer in meliorism, I opine that the world can still indulge in rectification without further ado, and humanity will follow. 

 

9 December, this year, marks the 70th anniversary of the Genocide Convention and is celebrated as International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime. This year, let's resurrect the pledge of 'NEVER AGAIN' that the world adopted 70 years back. It's correctly said - "The rights of every man are diminished when the rights of one man are threatened.

The contours of the right to receive bail | Guest Post by Rasveen K. Kapoor

(This is a guest post by Rasveen K. Kapoor. Rasveen is a student at Indore Institute of Law).  

Arnab Goswami || Siddique Kapan

“A man of courage never needs weapons, but he may need Bail.” 

– Lewis Mumford, American historian

It is the sacrosanct obligation of all concerned with the justice dispensation system to ensure that the administration of criminal justice remains effective and meaningful. Literally, the expression 'bail' denotes a security for appearance of a prisoner for his release. Bail is a grant of conditional liberty to an accused who assures or on whose behalf assurance is given that he would be present at the trial. It is imperative to note that the very idea of bail emerges from an assumption, of the accusatorial framework, i.e.  innocent till proven guilty.

As recognized by the English jurist, William Blackstone, “it is better that ten guilty persons escape, than that one innocent suffer.”  An incalculable wrong is done to an innocent person who spends even a single day in prison. From the date of recording of an FIR till consummation of the trial process and the case decision, the law contains different arrangements to release an accused on bail. Through multiple decisions, the Supreme Court of India has held that bail is a privilege and is significant in a democratic republic, until he is demonstrated liable through a fair trial process.

A Mathura court on November 13^th’ 2020, dismissed the bail plea of three persons, booked on charges of sedition and terrorism after their arrest in Mathura along with a Kerala journalist namely, Siddique Kappan – who was on his way to Hathras village to meet the family of a Dalit woman who died after being brutally gang raped.

This denial of bail must be examined in context with the speed with which Arnab Goswami received bail, after just a single hearing in the Supreme Court. The speedy hearing and the grant of bail to Arnab Goswami has rekindled the moot question regarding the selective treatment of the high and the mighty - “Whether the privilege to fundamental rights is only a prerogative of the riches”?

When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and must be released on bail except when under extremely rare circumstances it is not possible to do so.

Personal liberty is recognised significantly in the constitutional framework under Article 21. While considering bail applications of the accused, it is important that the courts balance considerations of personal liberty and the interests of the general public, thereby paving a way for judicial discretion in matters of bail.

 It is the solemn duty of the court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital[1] has stated certain points to be considered before granting bail, namely:

1.  The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
2.  Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
3. Prima facie satisfaction of the Court in support of the charge.

The Supreme Court had time and again stated that bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors[2] has mentioned some relevant grounds that play a vital role in deciding the bail applications being, the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It has been regarded by the Hon’ble Supreme Court in the case Babu Singh and Ors. V. State of U.P. [3] that, deprivation of personal liberty by refusal of bail applications blurs the great trust exercisable as on the part of the judiciary as an institution, not casually but judicially, with lively concern for the cost to the individual and community. Personal liberty of an accused or convict is fundamental, and shouldn’t be subjected to suffering lawful eclipse in terms of the procedure established by law. 

In all these cases, the common condition attached is that the person released on bail will be brought before the court on demand. Other conditions may be imposed as may be deemed appropriate. It may be stated in passing that in the event of delivering custody to the state by way of refusal of bail to the accused or his surety the court may set out other conditions for the benefit and enjoyment of liberty by the accused.

Legislative prescriptions governing inmates in prison may be said to be serving this end. These regulations have to be in conformity with the themes of such human dignity as are now being expounded by the court as a part of human rights jurisprudence in general and personal liberty in particular.[4]

Passionate pleas for personal liberty are often being made while seeking release of an accused person in pre-trial cases. This approach is expressive of the conscious assertion to protect the individual rights. The pre-emptive rule of “Bail Not Jail” as regarded in Khemlo Sakharam Sawant v. State of Maharashtra[5] , vis-a-vis Article 21 should not be ignored. Though judicial discretion in matters of granting bail is imperative, but selective treatment by judiciary in matters of personal liberty dwindles the very faith of an individual in the credibility of judiciary as an institution.

---

[1] State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258.

[2] Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR 2001 SC 1444.

[3] Babu Singh and Ors. V. State of U.P., (1978) AIR 527, 1978 SCR (2) 777.

[4]  D.C. Pandey, "Criminal Law", XVI ASIL 452 et. seq. (1980).

[5] Khemlo Sakharam Sawant v. State of Maharashtra 2002 (1) BOM C.R. 689.

Jammu and Kashmir’s new land law amendments – Are they constitutionally valid?

 

On 26^th October, the Ministry of Home Affairs notified the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Third Order, 2020 (‘the Adaptation Order’). This executive order has made wide-ranging amendments to the land laws applicable in Jammu & Kashmir. These amendments are applicable only in the Union Territory of Jammu & Kashmir, and are not applicable in the Union Territory of Ladakh.

After explaining the procedure adopted for amending these land laws, we shall discuss the constitutional validity of the Adaptation Order notified by the Home Ministry.

We shall conclude our discussion by examining how the conversion of the State of Jammu & Kashmir into 2 Union Territories, along with the continued imposition of President’s Rule, has given the Central Government a justification for making legislative policy changes without any prior consultation.

The procedure adopted for notifying the Adaptation Order

Through the Adaptation Order notified by the Union Home Ministry, multiple land laws that were applicable in the erstwhile State of Jammu & Kashmir have either been repealed or amended. 12 land laws have been repealed, while 26 have been amended. After these amendments, outsiders (i.e. those who are not domicile residents of Jammu & Kashmir) can acquire both agricultural as well as non-agricultural land in the Union Territory.

This has led to an uproar, and politicians such as Omar Abdullah have contended that allowing outsiders to purchase land will further disempower the local population, and may alter the demography of Kashmir in the long run. It was also argued that such far-reaching changes to land laws were made without any prior stakeholder consultation.

It is pertinent to note here that in April, a similar ‘Adaptation Order’ was notified, to enact a new domicile policy for Jammu & Kashmir. This was done by amending the Jammu & Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 – which prescribed the conditions that must be satisfied for claiming the status of a ‘domicile resident’ of Jammu & Kashmir. Just like the land law amendments, even the domicile policy was criticized on the ground that it was notified without any prior consultation or discussion.

In both of these Adaptation Orders, it has been stated that the Order derives legal force by virtue of Section 96 of the Jammu and Kashmir Reorganization Act, 2019 (‘the Reorganization Act’).

To recall, the Reorganization Act has bifurcated the erstwhile State of Jammu and Kashmir into two separate Union Territories of Jammu & Kashmir and Ladakh. This statute was introduced simultaneously with the Presidential Order and the Statutory Resolution which amended Article 370 of the Indian Constitution, on 5^th August 2019. To understand the nature and purpose of the Adaptation Order, it is instructive to refer to Section 96 of the Reorganization Act. Section 96 falls under Part XIV of the Reorganization Act, which consists of “Legal and miscellaneous provisions”. It states as follows:

"For the purpose of facilitating the application in relation to the successor Union Territories, of any law made before the appointed day, as detailed in Fifth Schedule, the Central Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority"(emphasis supplied).

The Fifth Schedule referred to above consists of the Central and State Laws that are applicable in the newly formed Union Territories of Jammu & Kashmir and Ladakh. Section 96 confers the Central Government with the power to amend or repeal any Central or State law applicable in the Union Territories, if it considers it to be ‘necessary and expedient’.

This power is available for a period of one year from the appointed date i.e. the date on which the Reorganization Act came into force - which was 31^st October 2019. Hence, the Government can resort to Section 96 only upto 31^st October 2020. Now, such a provision enabling the adaptation and modification of existing laws by the Executive is not unique to this Reorganization Act. A similar provision is also present in Section 101 of the Andhra Pradesh Reorganization Act, 2014, which conferred the government with powers of adaptation and modification – for a period of 2 years.

An important question arises here with respect to the scope and ambit of the power of ‘adaptation and modification’ conferred by Section 96. The question that arises here is whether the power conferred by Section 96 is limited to making ‘adaptations and modifications’ solely for purposes of procedural and administrative efficiency, or whether it also extends to making policy alterations – such as allowing outsiders to purchase land, or enacting a new domicile policy.

The scope and ambit of the power of ‘adaptation and modification’

From a plain reading of Section 96, it is evident that the purpose of this provision is to adapt or modify any law for the purpose of facilitating its application to the successor Union Territories, if the Central Government feels that it is necessary and expedient to do so. This is further qualified by a one-year time limit, which means that adaptations and modifications can be made for a temporary period of one year - from the date on which the Reorganization Act has come into force.

The presence of a one-year time limit and the words “for the purpose of facilitating the application in relation to the successor Union Territories, of any law” indicates that such adaptations and modifications made through executive orders can be undertaken only for procedural and administrative matters connected with the bifurcation and the conversion of the erstwhile State into 2 Union Territories.  

This also implies that policy changes made through executive orders which are unconnected to this process of facilitating the application of existing laws shall be beyond the ambit of Section 96. This interpretation is also in line with the Supreme Court’s decision in the landmark In Re: The Delhi Laws Act (1951) case, where it was held that the Legislature cannot delegate matters of essential legislative policy to the Executive.

Keeping in mind the wording of Section 96 and the In Re: Delhi Laws Act decision, it can be argued that Section 96 cannot be used to make any substantive policy changes by amending existing laws; and it is restricted to matters of procedure and administration that are necessary for facilitating the smooth application of existing laws to the newly constituted Union Territories.

The Adaptation Orders referred to above have amended existing laws to permit outsiders to purchase land, and has also framed a new domicile policy for Jammu & Kashmir. These are clearly changes that fall within the realm of legislative policy, and are not simple modifications that have been made for procedural and administrative convenience. As they are substantive policy changes, it can be argued that they do not fall within the ambit of the power conferred by Section 96 – and should hence be struck down for going beyond what is permitted by the Reorganization Act.

There are hence strong grounds to challenge the Adaptation Orders in the Jammu & Kashmir High Court or the Supreme Court. Let us now examine certain constitutional provisions that the Central Government may invoke, in response to a possible legal challenge.

The Central Government’s possible line of defence

As per the Reorganization Act, the Union Territory of Ladakh does not have a Legislature, and is to be administered by a Lieutenant Governor, acting on behalf of the President. On the other hand, the Union Territory of Jammu & Kashmir follows a model similar to Pondicherry and Delhi. Along with a Lieutenant Governor, Jammu & Kashmir is envisaged to have a Legislature and a Council of Ministers headed by the Chief Minister.

Section 58 makes Article 239 and Article 240 of the Constitution applicable to the Union Territory of Ladakh. Article 240 states that for specified Union Territories (such as Pondicherry and now Ladakh), any Regulation made by the President which amends or repeals any applicable law shall have the same force as an Act of Parliament. Hence, with respect to the Union Territory of Ladakh, all executive orders issued by the Central Government shall be equivalent to a parliamentary law. However, the position is significantly different for the Union Territory of Jammu & Kashmir.

Unlike Ladakh, Article 240 has not been made directly applicable to the Union Territory of Jammu & Kashmir. This is by virtue of Section 13 of the Reorganization Act. Section 13 only states that the provisions contained in Article 239A of the Constitution as applicable to Pondicherry shall also be applicable to the Union Territory of J& K.

However, the Government may nevertheless invoke the proviso to Article 240(1) as a defence. The proviso to Article 240(1) states that if a body is created to function as the Legislature for the Union Territories enlisted under Article 239A (which now includes Pondicherry and Jammu & Kashmir), then until the first meeting of the Legislature, the Central Government may make Regulations that amend or repeal the existing laws that are applicable in the Union Territory. Also, as per Article 240(2), all such regulations made before the first meeting of the Legislature shall have the same force as a statute passed by Parliament.

This may be used as a justification by the Central Government in a possible constitutional challenge, as the Union Territory of Jammu and Kashmir is currently under President’s rule, and no Legislative Assembly has been created after the passage of the Reorganization Act. It may contend that even if the Adaptation Order is beyond the ambit of Section 96 of the Reorganization Act, it is saved by Article 239A and Article 240 – as Jammu & Kashmir does not have a Legislature as of now.  

Continued Imposition of President’s rule - A larger constitutional question

Keeping this possible justification aside, there is a larger constitutional question that the Court must address. As the Union Territory of Jammu and Kashmir is envisaged to have a Legislative Assembly, Article 239A read with the proviso to Article 240(1) permits the issuance of executive orders by the Central Government only until the first meeting of the Legislative Assembly, after fresh elections are held. Jammu & Kashmir was under President’s rule prior to its conversion to a Union Territory, and has continued to remain in President’s rule even after 31^st October 2019 (when the Reorganization Act came into force).

Article 356 of the Indian Constitution has continued to hold fort in Jammu & Kashmir since 19^th December 2018, and there is no specific information on any proposal to have fresh elections in the near future. The continued imposition of President’s rule and the conversion of the State into 2 Union Territories has given the Central Government a carte blanche to indiscriminately take advantage of the statutory and constitutional provisions referred to above, and rule by executive decree.

The rationale behind the Central Government wanting this unbridled power can be highlighted by referring to the Supreme Court’s decision in NCT of Delhi v. Union of India. In its decision, the Supreme Court held that although Delhi is a Union Territory and akin to a quasi-State, the actions of an elected government and an elected Legislature shall bind the Lieutenant Governor - for all matters that are within its legislative domain. Although this decision was based on an interpretation of Article 239AA of the Constitution, it applies squarely to Jammu & Kashmir – as akin to Delhi, Jammu & Kashmir is envisaged to have a Legislature despite being a Union Territory.

This implies that for all matters within its legislative domain, the Legislature of the Union Territory of Jammu & Kashmir shall stand supreme, and bind the Lieutenant Governor and the Central Government. Hence, if fresh elections had been held and a Legislative Assembly had been constituted, the Home Ministry could not have indiscriminately taken the benefit of Article 239A, Article 240, and Section 96 of the Reorganization Act - to bring about radical policy changes relating to land and domicile.  

As discussed above, the Adaptation Orders that made land and domicile-related changes were notified without any prior legislative consultation. If there was an elected Legislature in the first place, amendments to land laws, or a new domicile policy could only have been enacted through legislation, after debate and discussions involving members across party lines. The conversion to Union Territories coupled with the imposition of President’s rule has prevented any such discussion from taking place, and has granted the Central Government with unbridled power to make policy prescriptions without any pre-legislative consultation process.

While the Central Government may contend that once there is an elected legislature, the Legislature may further amend or repeal the changes after discussion, this shall only buttress my primary point – that as the presence of a Legislature is envisaged, such legislative policy prescriptions should be left solely within its domain.

This only culminates in one common end – which is the need for a greater legal and judicial conversation on whether it is within the spirit of the constitutional framework to indefinitely impose and repeatedly extend President’s rule under Article 356, and rule virtually by executive decree. Until this status quo remains, there shall only be rule by law in Jammu & Kashmir, and not rule of law.

[An earlier version of this piece was posted on the Indian Constitutional Law and Philosophy Blog in April. It is being reposted here with prior permission, after making changes based on developments that have taken place since April].

Remembering C.K. Daphtary - India's first Solicitor General

“The boy who wrote the best essay got the first prize”. Many of us would have come across this anecdote, where Chander Kishan Daphtary, India’s first Solicitor General, perfectly summarized the Indira Gandhi government’s decision to appoint Justice A.N. Ray as Chief Justice of India, by superseding 3 of the senior-most judges of the Supreme Court (Justices Shelat, Grover and Hegde). [A.N. Ray was rewarded for his ‘essays’, after he held in favor of the Government in the Keshavananda Bharathi case, and was also the only judge who upheld Indira Gandhi’s bank nationalization ordinance of 1969].

This is just one among the many sharp and memorable anecdotes from Daphtary’s career, where he served as independent India’s first Solicitor General (from 1950-1963), and succeeded M.C. Setalvad to serve as India’s second Attorney General from 1963-1968. After serving as Attorney General, he was also nominated to the Rajya Sabha in 1972. In fact, his one-line description of Justice A.N. Ray getting the ‘first prize’ for his ‘essay’ was made in the Rajya Sabha itself!

C.K. Daphtary, who was fondly known as Chandubhai, is still remembered for his sharp and witty one-liners in Court. Perhaps the most ‘savage’ of all his one-liners was when Daphtary was practicing in the Bombay High Court. Daphtary was appearing before a Bench headed by Justice Somjee, on a matter relating to stock exchange transactions. It was also well-known that Daphtary himself regularly dabbled in stocks.

Justice Somjee had refused to grant Daphtary permission to continue cross-examining a witness regarding a stock exchange transaction he had undertaken. When Daphtary persisted, Justice Somjee had remarked – ““Mr Daphtary, you will of course know all about stock exchange transactions”.

Daphtary did not react. A few moments later, a law report had to be passed by him to the Bench. As soon as the book was handed over, Justice Somjee remarked – “Mr. Daphtary, there is a bug in this book”. Daphtary immediately seized the opportunity and said – “My Lord, it is not the first time that a bug has travelled from the Bar to the Bench”. This was a sly remark at Justice Somjee himself, who had been elevated as a Judge from the Bar.

While there are many more witty anecdotes and one-liners, Mr. Daphtary’s memory lasts beyond his sharpness and sense of humour. He was also a man who stood by principles, some of which are relevant even today. Three such incidents from Daphtary’s journey bear utmost relevance even today.

A stern request asking Chief Justice Gajendragadkar to recuse

In 1965, two matters dealing with a cooperative housing society came before a Bench headed by Chief Justice Gajendragadkar. A bunch of intervenors from Bombay argued that Chief Justice Gajendragadkar should recuse himself, as he was a member of one of the cooperative housing societies, for which the Government of Bombay had acquired land. Initially, Justice Gajendragadkar stated that he would recuse himself only from one out of two matters, where he had an indirect interest. But, this was objected to C.K. Daphtary, who was then the Attorney General.

Daphtary categorically stated that Chief Justice Gajendragadkar should recuse himself from both matters, as he had a common indirect interest in them. The Bench was reconstituted the next day, and Justice Subba Rao was asked to preside. As Fali Nariman points out in his autobiography, Before Memory Fades, Daphtary stood up for principle and asked for Chief Justice Gajendragadkar’s recusal - even though there was a strong belief in the Bar that Chief Justice Gajendragadkar would decide in favor of the State, as his views on the legal questions involved were well-known.

Daphtary’s role in the constitution of the ADM Jabalpur bench

Daphtary also had an important role to play in the constitution of the bench that decided the ADM Jabalpur case in 1976, during the emergency. After Indira Gandhi’s proclamation of a national emergency in 1975, a number of political leaders and activists had been arrested under the infamous MISA – Maintenance of Internal Security Act, 1971.

Different High Courts had taken contrary views on whether fundamental rights (including the right to life under Article 21) can be suspended when a national emergency was declared. This was crucial, as if fundamental rights stood suspended during an emergency, anyone who had been detained would have no right to challenge his detention before the High Courts and the Supreme Court.

As 9 High Courts had held against the Indira Gandhi Government, the Government filed an appeal in the Supreme Court. There was a growing suspicion in the Supreme Court Bar that Chief Justice A.N. Ray (the boy who wrote the best essay and got the first prize) would constitute a bench of judges who would without doubt give their decision in favor of the Government. Daphtary, who was then the President of the Bar Association, approached Chief Justice Ray and suggested that as there was some concern in the Supreme Court Bar, a bench consisting of the 5 senior-most judges of the Supreme Court should be constituted.

Chief Justice Ray retorted - and asked whether there was ever an occasion where suggestions were made to the Chief Justice of India regarding whom to put on a bench. Daphtary was quick to the task, and responded that he does recall a previous occasion where Chief Justice S.R. Das was told about concerns regarding the composition of a bench, and S.R. Das never took it in the wrong spirit.

This struck the right nerve with CJI A.N. Ray, as S.R. Das happened to be his mentor! CJI A.N. Ray then went on to constitute a Bench with the 5 senior-most judges of the Supreme Court. However, Daphtary’s efforts obviously went in vain, as 4 out of 5 judges held in favor of the Government.

It was only Justice H.R. Khanna who dissented and held that even during a national emergency, fundamental rights cannot be suspended. This ‘essay’ also cost him the post of Chief Justice of India, as the Government superseded him and appointed Justice Beg. In an era where serious questions have been raised regarding composition of benches and assignment of politically sensitive cases to certain judges, even A.N. Ray’s reluctant approval of Daphtary’s request seems to look bright.

Daphtary’s views on the UAPA

Daphtary’s views on the UAPA are most relevant today, when the law is being used to muzzle political dissent. In October 1967, a Joint Parliamentary Committee was set-up to examine the Unlawful Activities (Prevention) Bill, 1967 (UAPA). This was the original draft of the UAPA, which did not deal with terrorist activities, and only penalized ‘unlawful activities’ that affected India’s territorial integrity and sovereignty. As Daphtary was the Attorney General, he was asked to depose before the Joint Parliamentary Committee.

Taking into account the overbroad definition of ‘unlawful activity’ that could be penalised, Daphtary noted that “these are drastic powers”, and that “the law was going as far as one could go”. In his view, the UAPA Bill was constitutional, but not ‘perfectly constitutional’. He also stated that while we may assume that powers granted by the UAPA would be exercised honestly and properly, we cannot say whether that shall always be the case.

Although Daphtary was to a certain extent ambiguous in his opinion, he has been proven correct in hindsight – as the UAPA today is only used against activists and protesters, who disagree with the ruling establishment. Even though the UAPA has been substantially amended since 1967 and terrorist activities have also been brought within its ambit, Daphtary’s views highlight how the law always had the potential to be misused – in the manner that we are witnessing today.

Along with his sharpness and wit, Daphary’s commitment towards rights and freedoms was also steadfast. In June 1975, after Indira Gandhi imposed the emergency, Daphtary was pained to see how High Court judges who decided against the Government were arbitrarily transferred. He told Fali Nariman – “Fali, what we need now is a Subba Rao”.

In fact, Fali Nariman has stated in his autobiography that the most important advice he ever received was from Daphtary, who told him – “Always remember, Fali, it is better to spend more time thinking about a case than merely reading the brief”. All of his words and actions continue to stand the test of time.

Book Review: The Great Repression by Chitranshul Sinha | Guest Post by Sarthak Bhardwaj

 (In this post, Sarthak Bhardwaj reviews The Great Repression: The Story of Sedition in India by Chitranshul Sinha. Sarthak is a 3^rd year law student at Vivekananda Institute of Professional Studies, Delhi). 

The Great Repression, by Chintranshul Sinha, chronicles the 150 year-old story of sedition in India. The law of sedition is a hotly contested issue and much has been said about it over the years - that it is colonial, oppressive, draconian, against free speech, and so on. One might naturally ask, how did we get here, and what is the road ahead? In answering these questions, Chintranshul Sinha takes the reader on a socio-legal history of India, starting right from the establishment of the first East India Company factory in Surat in 1613.

The book covers three spheres. It discusses sedition’s origin story, its early life during the British Raj, and then in independent India. The first part tells how the emergence of sedition (and, in fact, the entire penal code) is proximately linked to the revolt of 1857. After managing to quell the uprising, administrative control and power was transferred from the East India Company to the British Crown. 

This hastened the process of codification of Indian criminal laws. The Indian Penal Code was formulated in 1860, but Section 124A (the provision governing sedition) was inserted only in 1870. The most immediate need for this insertion, Chintranshul Sinha suggests, arose because of the Wahhabi Movement, which aimed to overthrow the British government.

The Indian Wahhabi movement, started by one Syed Ahmed, was initially against the Sikh empire in northwest India. However, when the British defeated the Sikhs, the movement took shape of a radical anti-British movement in India.  In 1863, the Britishers unearthed a conspiracy to supply money and ammunition to the Wahhabis to fight the British in the North Western Frontier Province. This led to the trials of some notable Wahhabi leaders. Thereafter, a need was felt by the British government to amend the Indian Penal Code (IPC) and provide for seditious offences.

The second section of the book enumerates how sedition evolved in its early life. Here, Chintranshul Sinha familiarises the reader with the legendary trials of Bal Gangadhar Tilak, Gandhi, Nehru, Azad, and the rest. It is observed how the Raj used sedition as a tool to stifle dissent and liberty of their subjects. Mahatma Gandhi’s trial exemplifies it best. His arrest was the result of four articles published in his magazine - Young India. The articles were considered to be incendiary by the Raj, for they supported the Khilafat Movement and exhorted Indian sepoys to quit serving in the British army.

Interestingly, Gandhi, without engaging a lawyer, pled guilty to the charge and refused to call any witnesses to testify in his defence. Gandhi, during his trial, submitted to Judge Broomfield, that he must first consider whether the law of sedition was evil and punish him with the severest penalty if he found that it was not. He called upon the judge to resign and dissociate himself from evil if he found otherwise. The offence of sedition - at that time - criminalized the mere promotion of disaffection against the government. It is known that Judge Broomfield held Gandhi in high regard, and therefore was reluctant to punish him.

However, it was accepted that Gandhi was no ordinary leader, and that his political teachings possessed a capability to spark violence amongst the masses. Thus, Gandhi was sentenced to six years of simple imprisonment. At the same time, Judge Broomfield expressed hope that the British government would reduce the sentence in the future. And, this is how Gandhi’s legendary trial came to an end. Lasting only for a glorious hundred minutes!

The third segment studies the position of sedition in modern Indian history. One would reasonably believe that an undeniably repressive law like sedition - responsible for the incarceration of the most prominent figures of the Indian independence movement - would  promptly be rejected by the framers of our Constitution. The reality, however, tells a different story. 

Leaders like Sardar Patel and C Rajagopalachari advocated for the retention of seditious speech. This inclusion was vehemently opposed by Somnath Lahiri, and finally the word ‘seditious’ from the proviso of Clause 8 of the draft interim report on fundamental rights was omitted. Despite passionate debates on freedom of speech and expression, the notorious Section 124A continued to find a place in our statute books.

There were some early attempts to decriminalise sedition by the courts, notably by the Punjab and Haryana High Court in the Tara Singh Gopi Chand case. But, in 1951, the Nehru government revalidated sedition by making it a reasonable restriction under Article 19 (2) – through the First Amendment to the Indian Constitution.

The author also succinctly discusses landmark cases like Kedar Nath Singh, Balwant Singh, and Bilal Ahmed Kaloo to reaffirm the prevailing and settled position of sedition, i.e., to attract punishment under Section 124 A of the IPC, incitement to violence or public disorder (and not merely promoting disaffection towards the government) is required. However, sedition still marks a great imbalance of power between the individual and the State, and is a tool of oppression in the hands of the government.

As Chintranshul explains, arrests under this provision are seldom in accordance with the prevailing position of law. For instance, sedition charges are slapped for celebrating a neighbouring country’s victory in a cricket match, for refusing to stand during the national anthem or for publishing satirical cartoons. It is interesting, therefore, to note that the book opens with a prescient word of caution from Justice D.Y. Chandrachud. The book, quoting Justice Chandrachud says, “the Constitution fails when a cartoonist is jailed for sedition.”

The book, thus, makes a strong case for the repeal of Section 124A - as has already been done in UK - the country of its origin. The Great Repression acts as an excellent primer in understanding the history of sedition in India. Despite its intensive legal content, the book is readable and can quite easily be understood by those outside the legal fraternity. The Great Repression is a riveting tale of where this (now) antiquated law came from, its evolution, and place (if any) in the world’s largest democracy.

Encounter killings and 'speedy' justice - When rule of law takes a backseat

In what turned out to be a predictable end to a week-long saga, Kanpur gangster Vikas Dubey was killed by the UP Police in an ‘encounter’, while he was being ferried back to Kanpur after being arrested in Ujjain, Madhya Pradesh. As per the version of the Police, Vikas Dubey was killed after the car that was ferrying him overturned, following which he snatched the pistol of a Police Officer and tried to escape. On the previous day, Prabhat Mishra - an aide of Vikas Dubey, was also killed in an encounter.  The Police gave the exact same justification even in this case, by stating that the accused snatched a Police Officer’s pistol and fired at them, after which they had no option but to retaliate.

In December last year, 4 persons accused of rape and murder in Hyderabad were bumped off for the very same reason – that they snatched the guns of the officers, who had taken them to the location of the crime to recreate the sequence of events. The common thread in all these three instances is the purported justification given by the Police – that the accused snatched a weapon, fired, and tried to flee – which left the Police with no option but to retaliate.

This repeated narration of the same story has made it difficult to believe, with multiple loopholes existing in between. For instance, in Vikas Dubey’s case, vehicles of media channels that were following the Police cavalcade were stopped a few kilometers before the encounter spot – which raises suspicion as to whether the events were pre-planned.

However, I do not aim to discuss whether such encounters are fake or staged in nature, as many of us very well know the answer. Instead, I would like to draw your attention to the celebration and jubilation that occurs after these encounters, with claims being made that “speedy justice has been duly served”. While such extra-judicial killings are celebrated on the ground that speedy justice has been ensured, our Constitution is put in the backburner.

In our democracy governed by the rule of law, the role of determining punishment and sentencing (be it life imprisonment or death penalty) is a task of the judiciary, and cannot be usurped by any Police force. It is only in a Police State or in a military dictatorship where the Executive takes the law in its own hands, and such actions are antithetical to our democratic foundations.

We forget that in most cases, the Police force undertakes encounters as it is the most convenient option for them – which obviates the need to ensure a fair trial and safely keep the accused in custody. Such short-cuts are undertaken with the connivance of the State Administration, who may feel that bumping off a person accused of a heinous crime is an easy route to avoid the judicial process – which is fraught with delay.

In other words, the deficiencies of our criminal justice system is used as an excuse to justify such extra-judicial killings. But, this is exactly what perpetrates the problem. If the Police force and the Executive can themselves take the law in their own hands and decide as to who ‘deserves to die’ – then will there be any need to address the deficiencies in our criminal justice system?

Let us not forget that it took seven years for Nirbhaya’s parents to get justice, which only accentuated their ordeal. The remedy to this malaise lies in addressing the deficiencies of our criminal justice system, and not in doing away with due process altogether, or celebrating when our Police take short-cuts. As Article 21’s guarantee of procedural and substantive due process tells us, the means adopted are as important as the end result. There cannot be any trade-off between the two under our constitutional framework.

Finally, any justification for such actions also imbibes a sense of impunity in our Police force, which then leads to situations where innocent victims end up paying the price. The recent custodial killing of Jayaraj and Bennix in Tamil Nadu epitomizes this sense of impunity – where Jayaraj and Bennix were thrashed to death as they had ‘disrespected’ Police Officers after keeping their mobile shop open beyond curfew hours.  

Unless we raise questions against such extra-judicial killings, and all other forms of Police atrocities , the rot in our criminal justice system shall continue to run deep.