Vol. XXXVIII, No. 11 ISSN-0970-8693 NOVEMBER 2018 Rs. 20

Editorial: EDITORIAL: The Long March to Protect The Long March to Protect Human Rights in India! Human Rights in India! - Dr. V. Suresh (1) In the wake of the retirement of the then incumbent Chief Justice of India, nd ARTICLES, REPORTS & DOCUMENTS: Dipak Misra (who retired on 2 October, 2018), a flurry of cases with st Subverting the Constitution - Ravi Kiran Jain came to be decided in the last fortnight of September upto 01 October, (2); Aadhaar: The Money Bill Controversy - 2018 with great, and equally, grave implications for the future of Arvind P. Datar & Rahul Unnikrishnan (8); Was constitutional laws and human rights in the country. A few cases stand Chandrachud's Dissent in the Bhima out for attention, all marked by the fact that they were not unanimous Koregaon case initially a Unanimous Verdict? - rulings but had minority, dissenting judgments being passed. Notable Arshu John (13); Why I am with the minority was the split verdict in the Aadhaar case with the majority of 4 judges opinion in the split verdicts on Aadhaar, including the then CJ, Dipak Misra, alongwith Justices AM Khanwilkar Sabarimala, Activists' Arrests - Girish Shahane and Ashok Bhushan agreeing with the majority ruling authored by (17); In solidarity with Greenpeace India, The Justice AK Sikri, upholding various aspects of the Aadhaar law while Quint and The News Minute (19). Justice Chandrachud gave a long dissenting judgment. The 1448 pages long judgment will be discussed for long for the numerous issues which PRESS STATEMENTS, LETTERS AND NEWS: were considered in the case. The other important cases in which there Press Release: IAPL condemns the threat to were split rulings related to the case of the arrest of 5 prominent human arrest Justice H Suresh (6); PADS Press rights activists by the Maharashtra police in the early hours of 28th Release: Punjab Blasphemy Law Violates August, 2018 in a well planned and orchestrated move by the Pune / Constitution and is an Attack on Democratic Maharashtra police in Delhi, Faridabad, Hyderabad, Thane and Mumbai Rights of Citizens (11); Press Statement of respectively. In this case the majority ruling written by Justice Khanwilkar Five Petitioners (12); PUDR Press Release: and concurred by the then CJI, Dipak Misra, held that the arrests of the On the Supreme Court's Verdict on the Arrest activists was not illegal while giving one month's time to the activists to of 5 Activists under the UAPA (15); Gautam approach the appropriate courts for grant of bail, during which period Navalakha's statement on his release (15); they were allowed to remain in house arrest in their respective homes. Bhima Koregaon case: Delhi HC orders Justice Chandrachud wrote a string dissenting ruling pointing out to the release of activist Gautam Navlakha from various illegalities in the arrest and holding that the arrests could not be house Arrest (16);PUCL Condemns Death supported; the role of the police also came up for censure. The third Threat issued to D. Ravikumar, former MLA ruling was in the context of the issue of entry of women in the age group (18). 14-50 to the Sabarimala temple in Kerala. In this, the majority view favoured the entry of women as an extension of the fundamental right to Annual Subscription: PUCL Bulletin equality while the lone dissenting ruling of Justice Indu Malhotra held (w.e.f. January 01, 2017) INDIA that the court should not interfere in matters of faith. Irrespective of PUCL Members Rs. 200 whether one agrees with it or not, the minority ruling of Justice Indu Non-Members Rs. 240 Libraries, Institutions Rs. 300 Malhotra is important as part of constitutional analysis. These judgments OVERSEAS apart there were a few other equally important cases including the SC PUCL Members US$50 ruling striking down sec. 377 Criminal Procedure Code which Non-Members US$100 decriminalised homosexuality between consenting adults thereby Libraries, Institutions US$120 upholding a long pending demand of the LGBTQ community. Of great import was the ruling in the issue of reservations for SC/STs in promotion in which the SC introduced the notion of `creamy layer' in the context of SC/STs which till then was used only in the context of reservations for MBCs/OBCs. Many of these judgments are of great importance and will need to be thoroughly discussed and analysed for their implications to human rights 438

PUCL BULLETIN, NOVEMBER 2018 1 jurisprudence. We start the process police with impunity. Both the ruling environmental protection laws. The by carrying a few articles on issues expand the protections against offices of Greenpeace were raised related to a few of these judgments. abuse of power by the police and and their bank accounts frozen. We invite readers and members to also spell out the importance of Elsewhere people have been participate in the discussion. procedural compliance as a prosecuted in very apparent In the meantime, the Delhi High measure of protecting human trumped charges. This is apart from court held the arrest of Gautam rights. We shall be carrying more activists and campaigners Navalakha, of pUDR, as illegal and analytical articles to help readers c h a l l e n g i n g h u m a n r i g h t s consequently he came to be and human rights activists violations. It's very clear, that in the released from house arrest. understand the wide scope of the coming months as elections The minority ruling of Justice fundamental right to life under Art. approach, human rights activists Chandrachud in the Romila Thapar 21 and various procedural laws. will have to brace up to new case and the order of the Division During this same period, the challenges and will also have to Bench of the Delhi High Court are government has also launched unite to assert the primacy of the very crucial orders which uphold major action against a number of rule of law, the Indian Constitution the rights of citizens against environmental groups which have and human rights. arbitrary, capricious and motivated been challenging the government's Dr. V. Suresh, Editor and General prosecutions launched brazenly by p o l i c i e s o n a r a n g e o f Secretary, PUCL National q Subverting the Constitution Ravi Kiran Jain Given the secular orientation of the discerning that the following “Notwithstanding the fact that Indian Constitution, it simply cannot can be regarded as the basic the words 'Socialist' and accommodate the corporate elements of the Constitutional 'Secular' were added in the backed Hindu Nationalist agenda. structure (These cannot be Preamble of the Constitution in Hindutva forces cannot bring in a catalogued but can only be 1976 by the 42nd Amendment, “Hindu Rashtra” within the term and illustrated). the concept of Secularism was p r o v i s i o n s o f t h e I n d i a n 1. The supremacy of the very much embedded in our Constitution as it now stands. Constitution. constitutional philosophy. The It nonetheless can be done only by 2. R e p u b l i c a n a n d term 'Secular' has advisedly d r a s t i c a l l y a m e n d i n g t h e D e m o c r a t i c f o r m o f not been defined presumably Constitution of India. So long as G o v e r n m e n t a n d because it is a very elastic term Kesavananda Bharati (AIR 1973 sovereignty of the country. not capable of a precise SC 1461) holds the field it is not 3. Secular and federal definition and perhaps best left possible to do so in as much as c h a r a c t e r o f t h e undefined. By this amendment Kesavanands has held that the Constitution. what was implicit was made Parliament in its power under 4. Demarcation of power explicit. The Preamble itself Article 368 to amend the between the legislature, spoke of liberty of thought, Constitution has no power to the executive and the expression, belief, faith and change the basic structure of the judiciary. worship. While granting this Constitution. Para 599 (Expressing 5. The dignity of the individual liberty the Preamble promised the Majority view) of the (secured by the various e q u a l i t y o f s t a t u s a n d Kesavananda case reads as freedoms and basic rights opportunity. It also spoke of follows:- in Part III and the mandate promoting fraternity, thereby “The basic structure of the to build a welfare State assuring the dignity of the Constitution is not a vague contained in Part IV. individual and the unity and c o n c e p t a n d t h e 6. The unity and the integrity integrity of the nation. While apprehensions expressed on of the nation.” granting to its citizens liberty of behalf of the respondents that It is important to note here that the belief, faith and worship, the neither the citizen nor the word “Secular” was inserted in the C o n s t i t u t i o n a b h o r r e d Parliament would be able to Preamble of the Constitution by the discrimination on grounds of understand it are unfounded. If Constitution's Amendment Act w.e.f religion, etc…………...... the historical background, the 3 . 1 . 1 9 7 7 w h e r e a s i n t h e T h e s e f u n d a m e n t a l r i g h t s Preamble, the entire scheme of Kesavanand's case “Secular” was enshrined in Articles 15, 16, and 25 the Constitution, the relevant held to be a basic feature of the to 30 leave no manner of doubt that provisions thereof including Constitution on 24.4.1973. they form part of the basic structure Article 368 are kept in mind In S.R. Bommai (AIR 1994 SC of the Constitution.” there can be no difficulty in 1918) Para 28 reads as follows: This aspect has been concluded in

PUCL BULLETIN, NOVEMBER 2018 2 S.R. Bommai in paragraph 88 in the 11 of his celebrated book “Working November 1980 with a written following words: a Democratic Constitution – The Constitution which was entirely a “ T h e s e p r o v i s i o n s b y Indian Experience”. It is an different entity from the PUCLDR implication prohibit the interesting reading that details how (People's Union for Civil Liberties establishment of a theocratic Indira Gandhi attempted the case and Democratic Rights) formed state and prevent the state to be decided by overruling the four years previously on 17th either identifying itself with or Golak Nath case. On the following October 1976 which functioned favoring any particular religion day that is on the 25th April 1973 the only for 3 months. On her re- o r r e l i g i o u s s e c t o r President of India appointed emergence after the fall of the denomination .The State is A.N.Ray as the next Chief Justice Janata Government Mrs Gandhi enjoined to accord equal of India superseding Shelat, Hegde took up her unfinished task of treatment to all religions and and Grover, the three senior most having a “committed” judiciary r e l i g i o u s s e c t s a n d judges, who, by the convention of which she wanted to accomplish denominations”. seniority, were next in line for the during 1971-77. It was fully The current political scenario in position. And thereby Mrs. Indira achieved with the help of the India is much worse then what was Gandhi struck a grievous blow to judgment of the 7 Judges experienced and witnessed during democratic constitutionalism as Constitution Bench of the Supreme the emergency from mid 1975 to well as to the independence of Court headed by Justice Bhagwati early 1977 (A period of only 18 Judiciary. by a thin majority of 4:3 in the months). The situation leading to On the 5th June 1974, more than a S.P.Gupta case. The question the declaration of Emergency was year after the Kesavanand Case, raised and decided in the case of S. an inevitable result of a chain of Jai Prakash Narayan started a P.Gupta was about the question of events starting from the 24th April massive movement of the “Total supremacy , whether of the 1973- the date on which the Revolution” (Sampoorna Kranti). Executive on the one hand and the Kesavananda Bharati case was While the J.P. movement was CJI and Chief Justices of the High decided by a small majority of 7:6 gaining ground amongst the Court on the other hand in the upholding the Basic Structure masses, Mrs Indira Gandhi's matter of appointments of the Doctrine till the date of declaration election was set aside by the Judges of the High Courts as well of Emergency. In fact it was in Allahabad High Court on 12th June as the Supreme Court. The fallout Golak Nath vs State of Punjab (AIR 1 9 7 5 . J . P d e m a n d e d h e r of S.P.Gupta was that the opinion of 1967 SC 1643) that the issue of the resignation in a huge public the CJI and Chief Justices of High scope of the power of Parliament to meeting on 25th June 1975.Instead Courts were totally ignored in the amend the Constitution under of resigning Indira Gandhi declared matter of appointment and transfer Article 368 was raised. By slender an Emergency in the night of judges and power had majority the Court held that intervening 25/26 June 1975 concentrated completely in the Parliament could not abridge or because of the turmoil and incipient hands of the corrupt Executive to take away the Fundamental Rights. rebelling in the country. Thousands the exclusion of the Judiciary, for a The Golak Nath judgment negated were detained throughout the period of about 12 years the judges the sweep of Article 368 to amend country. The detentions were in the High Courts and the Supreme provisions contained in Part III of challenged by filing petitions in the Court were appointed by the the Constitution. This was the first High Courts. 9 High Courts out of corrupt Executive. The judgment in major step taken by the Supreme 13 decided in favour of the S.P.Gupta came on 30.12.81 which Court to contain the erosion of the detainees. The appeal in the was overruled in the Second Constitutional scheme. After the Supreme Court referred to as the Judges case decided on 6.10.93. judgment in Golak Nath, Indira `ADM Jabalpur' case (also known The S.P.Gupta case went to the Gandhi painted the Court as the as Habeas Corpus case) was extent of holding that consultation principle adversary of her radical decided on 28.4.1976. 4 out of the 5 by the President of India with the politics. Indira Gandhi launched a Judges, Chief Justice Ray, Justice CJI in the case of Supreme Court, campaign, against the judicial Beg, Justices Chandrachud and and CJI and Chief Justices of the system, calling it a major obstacle Bhagwati upheld the Government High Courts in the case of to progress towards socialism. She of India's position. Only Justice appointment of High Court was only mobilized quite a few intellectuals, Khanna dissented .In January formal. academics, lawyers and judges- 1977, Justice H.R.Khanna was In the Second Judges case the who emphatically criticized the superseded as he was not made Supreme Court held that the Supreme Court's decision in Golak Chief Justice of India on his turn opinion of the Chief Justice of India Nath and generally regarded the and he resigned to give way to for the purposes of Articles 124(2) court as the principle class enemy. Justice Beg to become the CJI. and 217 (1), so given has primacy How Kesavanand case was Mrs Gandhi remained out of power in the matter of all appointments; decided by such a thin majority? A from 25th March 1977 to January and no appointment can be made detailed and authentic account is 1980. The People's Union for Civil by the President under the given by Granville Austin in Chapter Liberties (PUCL) was formed in provisions to the Supreme Courts

PUCL BULLETIN, NOVEMBER 2018 3 and the High Courts unless it is in Bar which prevented a united important persons in public life. In conformity with the final opinion of agitation against the arbitrary this manner it was proposed to the CJI formed in the manner manner in which the judges were introduce transparency in the indicated. being appointed. selection process. Fortunately a The Third Judges case came on a Why the collegium system got Constitution Bench by majority of reference made by the President of derailed from its basic objective of 4:1, set aside the Constitution India under Article 143 of the choosing judges on the basis of (Ninety–Ninth) Amendment Act Constitution of India. It was decided merit so soon after its introduction? 2014 as well as the National on 28th October 1998. Through this The reason appears to be that the Judicial Appointment Commission j u d g m e n t t h e m a n n e r o f judges appointed in various High Act 2014 on Oct 16, 2015. Thus, appointment of judges through the Courts during the period the repelling the gravest possible Collegium system was introduced. executive had the supremacy to threat to the independence of It may be seen here that in the appoint them (i.e. between judiciary. Chief Justice Kehar and Second Judges case there was 30.12.1981 and 6.10.1993) his companion Justices thus nothing at all to introduce a became senior judges in the secured for the time being at least Collegium system. Although a bare Supreme Court and started the continued independence of the reading of the relevant provisions of becoming members of the judiciary. Para 935 of the judgment the Constitution goes to show that collegium of the Supreme Court of the Constitution Bench reflects the collegium system was not in and the collegium of the various the majority view. It reads as accordance with the Constitutional High Courts, so much so that when follows: scheme but it was generally Justice V.N. Khare was the CJI the “The sum and substance of this welcomed. To begin with, the whole of the Supreme Court was discussion is that mandatory system seemed to work well. In packed with the judges who were consultation between the early 1999, a large number of appointed in post SP Gupta and pre President and the Chief Justice Judges were appointed in various Second Judges case, who had a of India postulated in the High Courts and it appeared that all different mindset being chosen Constitution is by passed- those appointments were made on during the period of the supremacy bringing about a huge the basis of objectively viewing the of the executive. alteration in the process of merit by the collegiums of the There was a lot of hue and cry with appointment of judges; the Supreme Court and various High this method of the appointment of Ninety- Ninth Constitution Courts. These appointments were judges by the judges themselves. Amendment Act and the NJAC made to the satisfaction of all Both the UPA as well as the NDA A c t h a v e r e d u c e d t h e concerned. However, not long after governments taking advantage of consultation process to a farce- its introduction it started appearing such an adverse public opinion a meaningful participatory and an impression was gaining against the method of appointment consultative process no longer ground that the collegium system by the Collegium system tried to e x i s t s ; t h e s h a r e d has derailed from its basic objective bring a Constitution amendment responsibility between the of choosing judges on the basis of and a legislation to establish a President and the Chief Justice merit. There were complaints that National Judicial Commission for of India in the appointment of the merit had taken the backseat the appointment of the Judges in Judges is passed on to a body while considering or choosing a the High Courts and the Supreme well beyond the contemplation lawyer for judgeship and this Court. Finally the NDA government of the Constituent Assembly; caused anger as well as frustration brought Constitution (Ninety the possibility of having amongst those who were deprived –Ninth) Amendment Act 2014 and committed judges and the of the judgeship despite being along with it National Judicial consequences of having a eligible on the ground of merit. The Appointment Commission Act 2014 committed judiciary , a judiciary majority of the Bar members had by which a Commission for that might not be independent become more vocal than they were selection and appointment and also is unimaginable.” in the past about the inadequacies transfer of Judges of the Higher Setting aside the Constitution in the appointment of judges. The Judiciary should be constituted (Ninety-Ninth) Amendment Act collegium of the Supreme Court replacing the prevailing procedure 2014 and NJAC Act 2014 was and the High courts started for appointment of Judges and extremely a great set back to Modi recommending the names of the Chief Justices of the High Courts G o v e r n m e n t . T h e s e t w o kith and kin of their fellow judges and the Supreme Court of India, enactments were made with a and Collegiums of the High Courts contemplated under Article 124 (2) motive to appoint judges to the also started recommending the and 217(1). It was felt, that the liking of the executive so that in names for appointment of judges proposed Commission should be near future Kesavanand Bharati on the suggestion of the Supreme broad based. In that, the case can be overruled and then Court Judges without judging their Commisssion would comprise of make drastic amendments in the merits independently. This created the members of the Judiciary, the constitution to make India a Hindu a conflicting vested interest in the Executive and eminent and Rashtra.

PUCL BULLETIN, NOVEMBER 2018 4 Tension between the judiciary and influence of the old colonial fearless journalists. Writers and the Executive, or within the jurisprudence and oblivious to rationalists, countering the judiciary itself are nothing new. It the fact that what they were dominant view of religion and has existed over the years since e x p o u n d i n g w a s t h e progressive in their writings have early 1970s, over matters like jurisprudence of a new also been violently attacked. Today j u d g e ' s a p p o i n t m e n t s o r Constitution for people who any dissenting expression stands operational procedure etc. had just freed themselves from stifled. Three rationalists and The chain of events from the date of colonial rule. One wishes that thinkers Narendra Dhabolkar, supersession of judges (25.4.73) till they had kept in mind the Govind Pansare and M.M. Kalburgi the date of retirement of Chief admonition of Lord Atkinson J and the eminent and fearless Justice of India Deepak Mishra on in Liversiege v Anderson. journalist Gauri Lankesh were 2.10.18 show how there crept in a I view with apprehension the murdered by unidentified people in permanent and sharp division in the attitude of judges who on a the last three years, apparently by judiciary as well as the Bar and a mere question of construction pro-Hindutva groups. A number of race amongst a section of senior when face to face claims incidents of lynching have occurred judges to demonstrate who is more involving the liberty of the since 2014. According to a Reuters “Committed” (to the Executive), subject show themselves more Report published in June 2017, a began and it is still going on. Executive minded than the total of “28 Indians – 24 of them This commitment to the Executive Executive.” (emphasise mine) Muslims- have been killed and 124 mindedness by the judges is best Some of todays laws are more injured since 2010 in cow related demonstrated while dealing with draconian than the draconian laws violence”. the Constitutional validity of enacted during the British period. About the attacks on human rights draconian laws. Constitutional validity of all such defenders Mathew Jacob in his Article 13(1) declares:- “All laws in draconian laws have been upheld note 'Democratic space and the force in the Territory of India by the Supreme Court except the Regime', recently published in i m m e d i a t e l y b e f o r e t h e latest enacted law in 2008 making “Dismantling India –A 4 year c o m m e n c e m e n t o f t h i s drastic amendments in Unlawful Report”, “Over the period 2015- Constitution, in so far as they are Activities Prevention Act 1967 2018, Human Rights Defenders inconsistent with the provisions of (UAPA) incorporating all the A l e r t ( I n d i a ) ( H R D A ) h a s this part , shall, to the extent of this draconian provisions of TADA and documented over 300 cases of inconsistency be void. POTA. Constitutional validity of attacks on HRDs across the Article 13 (2) mandates State shall TADA was challenged in Supreme country. HRDs and members of not make any law which takes away Court in Kartar Singh vs State of their families are facing threats to or abridges the rights conferred by Punjab [SCC (1994)(3) 569]. The their personal and physical this part in any law made in judgment has been severely security. They are being profiled, contravention of this clause , to the criticized by many distinguished harassed, intimidated, ill-treated extent of this contravention be lawyers and jurists. According to and subjected to hateful abuse in void.” K.G.Kannabiran, the Supreme the media. Their physical security Even after the Constitution came Court upheld the validity of TADA and lives have been threatened in a into force on 26.1.50, the “Virtually proceeding on the systematic manner. They are government did not think that the assumption that the act is more arbitrarily arrested or detained and continued existence of laws in fundamental than the Constitution”. cases filed against them. Their contravention of Article 13(1), were Thereafter the constitutional offices raided and files stolen and unconstitutional .On the contrary, validity of POTA was challenged by confiscated. And in extreme cases, many of the draconian laws passed the PUCL. Since POTA had similar they are tortured, made to by the British to contain and repulse provisions as TADA and since the disappear or even killed. HRDs are the struggle for independence still grounds of attack in the Supreme the victims of State repression, continue today and unfortunately Court in POTA were almost the often charged with fabricated cases the judiciary too continued with the same as were argued in the case of w i t h i n s t a n c e s o f s t a t e colonial traditions, which can be Kartar Singh, the Division Bench manipulating the judiciary”. illustrated by what happened in the upheld the Constitutional validity of The above mentioned 300 cases of case of A.K.Gopalan. Justice POTA on the ground that the law attacks on HRDs are over and O.Chinnappa Reddy in his book laid down by the Constitution above ten activists and eminent “The Court and the Constitution of Bench in Kartar Singh was binding citizens who were arrested under India: Summits and Shallow” while on the Bench of two judges. UAPA in connection with Bhima- dealing with the Gopalan case The present situation is an Koregaon clashes by the Pune noted: inevitable result of Modi's election police, controlled by the Home “ T h e M a j o r i t y J u d g e s campaign and his coming into Department of the BJP-led State appeared to be still under the power in 2014. Recent years have governments in Maharashtra. Five witnessed systematic attacks on of them were arrested in June 2018 the human right defenders and the

PUCL BULLETIN, NOVEMBER 2018 5 they are Surendra Gadling, process of creating large scale showing them as “Committed”. General Secretary of Indian violence, destruction of property I conclude this note with the Association of People's Lawyers resulting in chaos. Against the following quote: from Nagpur; Professor Shoma detention of five persons arrested “The Constitution does not Sen Head of Department of on 28th August 2018, the PIL petition work by itself: It provides that English, Nagpur University; Sudhir was filed by 5 eminent citizens of any law which abridges or Dhawale Editor of Marathi the country including the eminent abrogates fundamental rights Magazine, Vidrohi from Mumbai; historian Romila Thapar and 4 shall be void. But laws don't Rona Wilson Public relation others, in which the 5 persons carry on their forehead the Secretary, Committee for the arrested also joined as petitioners mark that they are invalid. release of the political prisoners, has been disposed off by the When a person is preventively (CRPP); and Mahesh Rout, Anti- Supreme Court on 28.10.18. detained under an illegal law, Displacement activist from Bharat In a situation as it exists today it the fact that it has vitiated the Jan Andolan. The other five were seems difficult to successfully Constitution does not help you, arrested on 28th August 2018 in challenge the Constitutional validity unless by an appropriate simultaneous raids conducted in of UAPA. Be it as it may. The remedy, he can get out of jail. multiple cities across the country on Constitutional validity of UAPA Nor are laws self executing. It is the pretext of investigating must be challenged by asking the left to the Executive to Koregaon Case - Sudha Bharadwaj Supreme Court that Kartar Singh administer law and that is in Faridabad, Varavara Rao in case upholding the validity of TADA where the most serious Hyderabad , Gautam Naulakaha in by the Constitution Bench has been problem arises.” (H.M.Seervai New Delhi and Vernon Gonsalves wrongly decided and the matter of at a public meeting held in the and Arun Ferreira in Mumbai. The Constitutional validity of UAPA B o m b a y U n i v e r s i t y Pune police had claimed that all should be decided by constituting a Convocation Hall on August these 5 persons were “Urban Larger Bench. May be, that at this 20, 1982 under the auspices of Naxalites” who had links with the moment in the composition of the the People's Union for Civil Left-Extremists Communists Party Supreme Court there may not be Liberties) of India (Maoists) and were in the many Judges who are in the race of Published in PUCL Bulletin, October 1982 q Press Release: October 22, 2018 IAPL condemns the threat to arrest Justice H Suresh1 IAPL condemns the threat issued investigated violations of human March/ April 2002 following the b y S h i v a j i P a w a r , A C P, rights. Justice Suresh investigated communal riots triggered by the Maharashtra Police to arrest IAPL's the Kaveri Riots (1991) in Godhra train attack. The tribunal President Justice Hosbet Suresh Bangalore, post-Babri Bombay gathered 2,094 oral and written (Retd.) and the most alarming riots (1992/1993) publishing their testimonies and met with many portrayal by him of IAPL as a frontal findings in a 1993 report titled 'The senior police officers and organization of CPI (Maoist). IAPL People's Verdict'. In August 1995, government officials. Findings believes that such attacks on Justice Suresh issued “Forced were documented in their report J u d g e s a n d H u m a n R i g h t Evictions – An Indian People's “Crime Against Humanity”. The fact defenders which includes lawyers Tribunal Enquiry into the Brutal finding team visited the former state and organizations, require to be Demolitions of Pavement and Slum Home Minister Haren Pandya who understood in the in the light of Dwellers' Homes”, a report informed the fact finding team on rising authoritarianism and fascist documenting the use of brutal and recorded audio tape, with request attacks in the country. It is the need indiscriminate force against slum of anonymity, that then Chief of the hour for all organisations and dwellers in Mumbai. In 2000, joined Minister Narendra Modi had told individuals to come together and by former Supreme Court judge the police not to restrain the rioting resist this onslaught collectively Justice V. R. Krishna Iyer, Justice Hindus. Pandya was thereafter and to strongly condemn and resist Suresh held a two-day hearing into murdered in 2003. In reaction to the this brazen attempt to intimidate the slum clearances in which about mass killings in Gujarat, Justice Justice H. Suresh (Retd) and 60,000 people had been evicted. Suresh was one of the drafters of a members of IAPL. The Inquiry covered both legal proposed law “The Prevention of Justice H. Suresh, now in his late aspects of the clearances and the Genocide and Crimes against 80s, is a former judge of the Hon'ble human impact. Humanity Act 2004”, in light of Bombay High Court and is leading Justice Suresh along with Justice Convention on the Prevention and figure in Human Rights activism in P.B. Sawant, were members of Punishment of the Crime of India. After his brief but glorious Indian People's Tribunal (IPT) fact- Genocide, 1948 to which India is judicial service, he led a number of finding team headed by Justice V. signatory. This would make Commissions of Inquiry that R. Krishna Iyer that went to in Ministers and officials criminally PUCL BULLETIN, NOVEMBER 2018 6 responsible if they failed to exercise obligation of legally holding the especially true if the lawyer is control in cases of mass violence State accountable for excesses attempting to protect the rights of against a group of citizens. In his 60 amounting to violations of human the people against corporate or years of public life, Justice Suresh rights of the citizens of this country. government interests or is has always been vocal against It is pertinent to note that such exposing corruption. In a similar draconian laws, state repression allegations on IAPL have not been vein, IAPL and its members are and judicial corruption. made by the State prior to this presently being targeted and IAPL strongly condemns this hearing, either in the Romila arrested for working towards the brazen attack on Justice H. Thapar's et al petition before the protection and furtherance of the Suresh which is not just an Supreme Court or anywhere else. constitutional and human rights of attack on an individual or an IAPL outrightly rejects and strongly the people. It is a lawyers organisation but is a conspiracy objects to such allegations levelled organisation and all members are to silence every Judicial officer by the State of Maharashtra and human rights workers and rights who hold the Constitution and supports the Office Bearers of a d v o c a t e w o r k i n g f o r t h e the obligations that fall on such IAPL. Further, IAPL condemns the preserving of the rights of the o b l i g a t i o n s t h e r e i n a s attack on people's lawyer marginalised. IAPL's work is within paramount to their lives. organisation and such brazen and in furtherance to the four Furthermore, this is a direct efforts to portray it as a frontal corners of the Constitution of India attack on the entire paradigm of organization of CPI (Maoist). At the and is built towards ensuring the the separation of the judiciary, a outset, it is explicitly clarified that protection of fundamental human b a s i c s t r u c t u r e o f t h e I A P L i s a n i n d e p e n d e n t rights of all citizens of this country. Constitution and our democracy. organization and is the Indian Given the current political ecology This attack on Justice H. Suresh Chapter of the International of the country which is structured is not an isolated incident of Association of People's Lawyer on the fascist ideology of silencing persecution and attack on and has no direct or indirect dissent and perpetrating violence judges who refuse to become affiliation to any political party. If rather than protecting the most e x e c u t i v e p u p p e t s . T h e IAPL has been at the front of marginalised and vulnerable the mysterious events leading to the anything it is in representing all rights advocacy work of IAPL and death of Justice Loya gives us all democratic struggles in and outside the human rights work of all its sufficient cause to apprehend a the courts, providing defence to the members has most unjustly further persecution of Justice H. marginalised, and speaking up resulted in IAPL being categorised Suresh. Furthermore, such against persecution of lawyers in as the frontal organisation of the statements are not only in a India or elsewhere. These claims CPI (Maoist). It is ironic that the continuum of a conspiracy of made by the State of Maharashtra lawyer-members of IAPL and the vilification and intimidation but are an attempt to silence rights organisation in itself are both being are deeply defamatory and serve l a w y e r s , a c t i v i s t s a n d wrongfully imprisoned and to de-legitimize the invaluable organisations involved in human persecuted for the very same legacy of Justice H. Suresh. rights work and to create a hostile crimes that they have in the recent It has also come to our attention working environment for all such few years exposed and brought to through various media reports lawyers directly infringing on their light. (Times of India, Pune Mirror, fundamental rights to practice their The issues and agendas taken up Business Standard among others) profession. by IAPL are sure to rattle the higher that the State of Maharashtra while IAPL takes this opportunity to ups, especially those state forces opposing the bail applications of clarify that it is a member an against whom IAPL is constantly IAPL's Office Bearers Advocate international organisation called s p e a k i n g u p a g a i n s t a n d Surendra Gadling (General International Association of demanding accountability from by Secretary), Advocate Sudha People's Lawyer founded in 2004 exposing their actions. It is under Bharadwaj (Vice -President) and to bring together lawyers involved these circumstances and the A d v o c a t e A r u n F e r r e i r a in the legal support of collective existing political scenario that IAPL (Treasurer), argued that IAPL is a struggles for peoples' rights and in is being labelled as the frontal frontal organization of the banned situations of gross rights violations organisation of the CPI (Maoist). CPI (Maoist) Party. Senior on a collective platform. The Therefore, we appeal to all Advocates Sudeep Pasbola and international organisation has democratic rights organisations, Yug Mohit Chaudhry representing recently released a report which lawyers' organisations and A r u n F e r r e i r a a n d S u d h a brings to light that globally we are associations, bar associations, Bharadwaj respectively argued that living in a scenario where in many lawyers, activists, writers, and IAPL's lawyer-members are countries of the world, it is members of the public to come carrying out the constitutional dangerous to be a lawyer. This is forward at this time and:

PUCL BULLETIN, NOVEMBER 2018 7 1. Condemn the persecution 2. Emphasise the work done persecution of members of and victimisation of Justice by all the lawyer-members Indian Association of H. Suresh and IAPL and of Indian Association of People's Lawyers. stand in solidarity with People's Lawyers; Justice H. Suresh, President, IAPL; Justice H. Suresh and IAPL 3. S t a n d a g a i n s t t h e M. Venkanna, Vice President, IAPL; D. and furthermore collectively systematic assault on rights Suresh Kumar, Joint Secretary, IAPL; resist and expose the advocacy and cause Ankit Grewal, Joint Secretary, IAPL fascist tendencies int he lawyering; Link: 1 https://countercurrents.org/ country. 4. Demand an end to the 2018/10/22/iapl-condemns-the-threat-to- arrest-justice-h-suresh/@ 22Oct2018 q Aadhaar: The Money Bill Controversy1 Arvind P. Datar & Rahul Unnikrishnan Bar & Bench October 15 2018 An important question that required Article does not deal with the Bills to must contain only provisions that consideration in the –Aadhaar amend the Constitution, which are deal with the matters enumerated judgment KS Puttaswamy v covered by Article 368. These Bills therein. The article reads as are passed in exercise of the follows:- – was whether the Union of India constituent power of Parliament “Article 110. Definition of 'Money Aadhaar (Targeted Delivery of and have to follow the special Bills'.- Financial and Other Subsidies, procedure prescribed therein). (1) For the purposes of this Benefits and Services) Act, 2016 Article 199 is the equivalent Chapter, a Bill shall be deemed to was rightly passed as a “Money provision relating to Money Bills be a Money Bill if it contains only Bill”. By a majority, it was held that that is applicable to State provisions dealing with all or any of it was indeed a Money Bill while the Legislatures. the following matters, namely: dissenting judgment of Introduction of the Aadhaar Bill: (a) The imposition, abolition, Chandrachud J. held to the The Aadhaar Bill was first remission, alteration or contrary. introduced as a Money Bill in 2016. regulation of any tax; It is submitted that the view taken This Bill contained 59 sections of (b) The regulation of the by the majority requires early which only section 7 referred to the borrowing of money or the reconsideration as it virtually Consolidated Fund of India and the giving of any guarantee by the reduces the Rajya Sabha to a relevant portion of that section Government of India or the nullity and will enable any reads as follows:- amendment of the law with Government, which has a majority “7. Proof of Aadhaar number respect to any financial in the Lok Sabha, to simply by-pass necessary for receipt of certain obligations undertaken or to be the Rajya Sabha where it may be in subsidies, benefits and undertaken by the Government a minority. All that is now required is services, etc.− The Central of India; for any bill to merely contain a Government or, as the case © T h e c u s t o d y o f t h e provision involving expenditure to may be, the State Government Consolidated Fund or the be paid out of the Consolidated may, for the purpose of Contingency Fund of India, Fund of India. establishing identity of an payments of moneys into or the Types of Bills: The examination of individual as a condition for withdrawal from any such Articles 107 to 117 of the receipt of a subsidy, benefit or Fund; Constitution indicates the following s e r v i c e f o r w h i c h t h e (d) The appropriation of money kinds of Bills: expenditure is incurred from, or out of the Consolidated Fund of (i) General Bills (Art 107) the receipt therefrom forms India; (ii) Money Bills (Art 110) part of, the Consolidated Fund (e) The declaring of any (iii) Appropriation Bills (Art 114) of India, require that such expenditure to be expenditure (iv) Financial Bills (Art 117) i n d i v i d u a l u n d e r g o charged on the Consolidated As per the Rajya Sabha website, authentication, or furnish proof Fund of India or the increasing Financial Bills can be further sub- of possession of Aadhaar of the amount of any such divided in two categories i.e. number or in the case of an expenditure; Category-I and Category II. As individual to whom no Aadhaar (f) The receipt of money on explained later, Aadhaar is an number has been assigned, account of the Consolidated ordinary bill and, at best, it would be such individual makes an Fund of India or the public a Financial Bill-Category-II. This application for enrolment.” account of India or the custody would have required the approval Article 110(1) of the Constitution or issue of such monies or the of the Rajya Sabha as well. (This specifically states that a Money Bill audit of the accounts of the

PUCL BULLETIN, NOVEMBER 2018 8 Union or of a State; or (e) the salary, allowances and “Money Bill”. (g) Any matter incidental to any pension payable to or in (ii) The majority has wrongly of the matters specified in (a) to respect of the Comptroller and presumed that expenditure (f) above.” Auditor General of India; under section 7 is “charged” to Section 7 refers to expenditure (f) any sums required to satisfy the Consolidated Fund of which is “incurred” from the any judgment, decree or award India. Article 112(3) of the Consolidated Fund of India but of any court or arbitral tribunal; Constitution specifically Article 110(d) covers only (g) any other expenditure enumerates expenditure that e x p e n d i t u r e “ c h a r g e d ” t o declared by this Constitution or will be charged to the Consolidated Fund of India. by Parliament by law to be so Consolidated Fund of India. Significantly, the expenditure on charged.” Expenditure on the Aadhaar the Aadhaar scheme is not The other provisions which create scheme is “incurred” from the “charged” to the Consolidated Fund such charge are Articles 146(3), Consolidated Fund of India of India. Article 112(3) enumerates 148(6), 273(1), 275(1), 290, and will not be covered by expenditure which is charged to the 291(1)(a), 293(2) and 322 of the Articles 110(c) or 110(e). Consolidated Fund of India. It reads Constitution. Consequently, Article 110(g) as follows: The majority has upheld the Bill as will also have no application. “(3) The following expenditure shall a Money Bill on the following (iii) It completely destroys the be expenditure charged on the grounds:- meaning of the word “only”, Consolidated Fund of India- (a) The Aadhaar Bill was a Money w h i c h i s a d e l i b e r a t e (a) the emoluments and Bill as it had a substantial restriction on the powers of the allowances of the President nexus with the appropriation of Lok Sabha. A Bill need not be and other expenditure relating funds from the Consolidated sent to the Rajya Sabha if it is to his office; Fund of India and was directly a “Money Bill”. All other Bills (b) the salaries and allowances connected with Article 110 of have to go to the Rajya Sabha of the Chairman and the the Constitution ('Paragraph for approval. Therefore, any Deputy Chairman of the 411 of Justice Sikris Bill, which has various Council of States and the substantive provisions, in Speaker and the Deputy opinion for himself, and addition to Clause (a) to (g), Speaker of the House of the Misra & Khanwilkar JJ). cannot passed as a Money People; Thus, the majority view has Bill. (c) debt charges for which the introduced a new concept of (iv)The majority view does not Government of India is liable “substantial nexus with the consider the legislative history including interest, sinking fund appropriation of funds and of Article 110 and how it was charges and redemption direct connection” ; and expressly based on the c h a r g e s , a n d o t h e r (b) Bhushan J., in a concurring provisions of section 1(2) of expenditure relating to the view, held that section 7 would the Parliament Act, 1911 raising of loans and the service be covered by clauses (c) and p a s s e d b y t h e U n i t e d and redemption of debt; (e) of Article 110 (1). It is further Kingdom. (d) (i) the salaries, allowances submitted that the paragraph (v) In the Constituent Assembly and pensions payable to or in 411 of the decision of Justice Debates, the proposal to respect of Judges of the Sikri wrongly states that delete the word “only” in Article Supreme Court, expenditure for the Aadhaar 110 was made by Ghanshyam (ii) the pensions payable to or scheme is “chargeable” to the Singh Gupta. This was in respect of Judges of the Consolidated Fund of India. specifically rejected. Federal Court, It is submitted that the view of (vi) The scholarly book on (iii) the pensions payable to or t h e m a j o r i t y r e q u i r e s 'Parliamentary Practice' by in respect of Judges of any reconsideration for the following Erskine May specifically High Court which exercises reasons points out that if a Money Bill jurisdiction in relation to any (i) The majority introduces a test of contains other matters, which area included in the territory of “substantial nexus with the are not subordinate or India or which at any time appropriation of funds and incidental to the enumerated before the commencement of direct connection” . This will matters, it would not be a this Constitution exercises enable any future Parliament to Money Bill. Accordingly, the jurisdiction in relation to any introduce any Bill with just one Speaker of the House of area included in a Governors provision that has a substantial Commons has rejected 1/3rd Province of the Dominion of nexus with the “appropriation of such Bills. The Aadhaar Bill India; of funds and direct connection” contained several provisions and it would pass muster as a w h i c h w e r e n e i t h e r

PUCL BULLETIN, NOVEMBER 2018 9 subordinate nor incidental to Federation of Pakistan, the The Finance Act, 2016 and any of the enumerated a m e n d m e n t t o t h e B a n k Tribunal Legislation: matters in Article 110(1). Nationalisation Act, 1974, (which (i)In the Finance Act, 2017, (vii) Indeed, the Aadhaar did not related to the appointment of Part XIV contains several have the remotest claim to be Chairman, President and members provisions that have made a Money Bill as not a single of the Board of the National Bank of large-scale amendments to clause of Article 110 applied to Pakistan) by the Finance Act, 2007 numerous statutes that have any of its provisions, including was also struck down even though constituted Tribunals. section 7. introduced in the Finance Act, (ii) These provisions have also The Minority View 2007. been challenged on the ground Chandrachud J. held that the (iii) In Federation of Pakistan v. that they could not have been Aadhaar Bill was not a Money Durrani Ceramics & Others, the introduced in the Finance Bill. Bill. After tracing in detail the Supreme Court held that the Once a Finance Bill contains historical reasons of Article 110, the imposition of cess under the Gas provisions for other matters, learned Judge emphasized the Infrastructure Development Cess which are not subordinate or s i g n i f i c a n c e o f b i c a m e r a l Act, 2011 was not a tax but a fee incidental to the enumerated legislation and the importance of and, accordingly, it could not have matters, it would cease to be a the Rajya Sabha as a check against been imposed as a Money Bill. Money Bill. This has been the the abuse of power by Lok Sabha. Consequently, the statute was ground on which two of the struck down. After discussing the provisions of three cases of the Supreme the Aadhaar Act, the learned Judge Judicial Review of Speaker's Court of Pakistan have struck also referred to the legislative Certificate: Article 110(3) states down Finance Acts. These history of the Aadhaar Act itself. that if any question arises as to provisions of the Finance Act, The provision of a unique identity whether the Bill is a Money Bill or 2017 will also be open to was first contemplated by the not, the decision of the Speaker of challenge because they do not National Identification Authority of the Lok Sabha shall be final. The satisfy the “substantial nexus India Bill, 2010 which was question that arose was whether with the appropriation of funds introduced in the Rajya Sabha on Article 110(3) excludes judicial and direct connection test” laid December 3, 2010. Obviously, this review? In the cases of Mohd. down in Puttaswamy. Bill was not a Money Bill. It also Saeed Siddiqui v. State of Uttar Conclusion: It is indeed strange faced several objections by the Pradesh, and Yogendra Kumar that the Bills which were patently Standing Committee of the Finance Jaiswal v. State of Bihar, the u n c o n n e c t e d w i t h A r t i c l e and this Bill lapsed because of the Supreme Court had held that the 110(1)/199(1) were earlier not change in government in 2014. certificate issued by the Speaker struck down as Money Bills; Mohd. was final and not subject to judicial Although the earlier Bill did not Saeed Siddiqui and Yogendra review. contain a provision that was similar Kumar Jaiswal cases are examples to section 7 of the present Aadhaar These two decisions were plainly of such cases. The Supreme Court Act, it still would not make the incorrect and have been rightly did not examine these Bills from the present enactment as a Money Bill. overruled in the Puttaswamy perspective of Article 110 or the It is submitted that the minority view decision. However, there is an corresponding Article 199 that of Justice Chandrachud is correct additional reason as to why the applies to Money Bills in the State and is in consonance with the earlier decisions were wrong. Legislature. The Puttaswamy case Constitutional scheme. A Bill can be introduced either in the was virtually a test case of a Bill that could not be categorized as a Pakistan Supreme Court: The Rajya Sabha or in the Lok Sabha. If Money Bill. Supreme Court of Pakistan dealt a Bill is first introduced in the Rajya with a similar provision in their Sabha, and a question arises as to It is humbly submitted that the constitution and struck down three whether it is a Money Bill, Article view taken by the majority enactments on the ground that they 110(3) makes it clear that this doubt requires reconsideration as it now were not a Money Bill:- of question cannot be resolved by provides a gateway to Parliament the Chairman or Deputy Chairman and State Legislatures to (i) In Sindh High Court Bar of the Rajya Sabha but will have to circumvent the need for approval Association v. Federation of be referred to the Speaker of the by the Rajya Sabha or the Pakistan, the amendment to the Lok Sabha and his/her decision on respective legislative Councils by Supreme Court (Number of this issue will be final. This is the clever drafting. Judges) Act, 1997 through a Money main reason for “finality”; there was Courtesy: The Authors; and Bar and Bill-the Finance Act, 2008 was held never any intention to place the Bench. to be unconstitutional. Speaker's certificate beyond Link: https://barandbench.com/ (ii) In Mir Muhammad Idris v. aadhaar-money-bill-controversy/ @ judicial review. 22Oct2018 q

PUCL BULLETIN, NOVEMBER 2018 10 PADS Press Release: 12.10.2018 Punjab Blasphemy Law Violates Constitution and is an Attack on Democratic Rights of Citizens Punjab assembly recently passed a potential for gross misuse by state Punjab government believe that bill for an addition to IPC clause 295 authorities and fundamentalist their law is secular since it to give life imprisonment for any forces. It needs to be noted that no prescribes equal punishment for 'injury, damage or sacrilege' of four major political party or organization sacrilege of books of all major religious books, (Guru Granth of the state has come out against religions. It is further argued that Sahib, Koran, Bible and Geeta) the bill. Only Dr Dharamveer the motivation for the bill is not to 'with the intention to hurt the Gandhi, the MP from Patiala, and protect any religious sentiment, religious feelings of the people'. non-parliamentary left groups in the which would be the case with This is the first time in independent state have given public statements religion based laws like Sharia laws India that a punishment usually against the bill. Some sections in Pakistan, but to defeat plans of given for willfully murdering another w i t h i n C o n g r e s s l i k e M r. spreading communal strife. The h u m a n b e i n g h a s b e e n Chidambaram have expressed latter it is claimed is a purely secular recommended for defilement of their disagreement with the bill, but motivation without any sectarian religious books. In an article in they are a small minority. interests. Both arguments are Times of India (6/9/2018), Punjab The bill and the political support it b a s e d u p o n a g r o s s chief minister CaptAmrinder Singh has received are a sign of misunderstanding of secularism. of Congress has justified the bill longstanding misunderstandings of Democratic states are expected to and tried to explain its context. secularism and political and be secular so that every citizen From 2015 to 2017 before the last administrative malpractices in enjoys equal right of religious assembly elections, the state had India. Given the scale and number freedom without any hindrance witnessed more than one hundred of incidents of sacrilege of Guru from the state or other citizens. cases of sacrilege of Guru Granth Granth Sahib in 2015-16, it is Hence, by definition a secular state Sahib, the holy book of Sikhs who reasonable to assume that these cannot encourage deliberate and form the majority in the state, and were result of a conspiracy to mischievous sacrilege against any its torn pages were found at many agitate Sikhs for definite political religion. However, itdoes not mean places. Two people were killed in ends. Further, it is also likely that that it has to show 'equal respect' to police firing on people protesting this conspiracy enjoyed political all religious practices.If any against this sacrilege. According to patronage from certain sections of religious practice is found to violate him, these acts of sacrilege were a the political class of Punjab. The requirements of democracy, then a conspiracy to spread communal Chief Minister uses the image of secular state can declare it illegal. unrest and amounted to 'national 'iron hand' a number of times in his This is what the Constitution of security threat that needs to be article to emphasise the necessity India did with untouchability.This dealt with an iron hand'. A similar bill of a tough response. Yet the fact means that religious sentiments do was passed by the earlier remains that for nearly three years not a priori enjoy greater privilege Shiromani Akali Dal (SAD) Punjab police and the two or value than other public government, asking for life successive governments have sentiments. There is no reason why imprisonment only for the completely failed to bring the hurt to religious feelings should defilement of Guru Granth Sahib. perpetrators of this communal attract greater punishment than the The bill was returned by the NDA conspiracy to book. This is not an hurt caused by misogynist central government with the uncommon occurrence. The most orcasteist abuses. In fact since the argument that in singling out the abominable communal conspiracy latter are invariably meant to holy book of Sikhs it went against of the post independent India was humiliate and assert power over the principle of secularism for the destruction of Babri mosque women and Dalits, these should enshrined in the Indian constitution. in 1991. However, no one has been attract greater punishment. Any just Amarinder Singh government has punished for that heinous crime till legal system determines the now added the other three religious date. Needless to say, failures of severity of the crime on the basis of books, to make the bill 'secular'. state authority to apprehend and its fundamental values, and gives Many commentators, civil rights punish perpetrators of communal punishment in accordance with the organisations and a group of retired c o n s p i r a c i e s h a v e o n l y degree of crime. By declaring bureaucrats have decried the bill. emboldened communal forces. No sacrilege to be in the class of most They have highlighted its anti- 'tough' law can cover up this serious crimes, the bill demands secular character, threat to dereliction of a primary duty by that religious sentiments enjoy freedom of expression, and Indian state. g r e a t e r i m p o r t a n c e t h a n

PUCL BULLETIN, NOVEMBER 2018 11 constitutional values like freedom The bill shifts the constitutional bill appears to be designed for from oppression, and fundamental balance between fundamental misuse. Internal reform, rationalist rights. rights of freedom of expression and critique, scholarly investigations, The second argument in favour of religion on the one side and the and everyday religious practices, the bill confuses 'hurt to religious powers of the sate machinery and any of these can be declared feelings' with communal strife. organized social bodies to restrain crimes under the bill. Believers of a religion can claim to these rights on the other. In the While the two successive be hurt by any number of current social context when governments of Punjab failed to statements or actions by others. In rationalists like Dr. Dabholkar, Dr. nab conspirators of the desecration India the most commonly claimed Pansare, Prof Kalburgi and Gauri of Guru Granth Sahib in 2015-16, causes of hurt to religious Lankesh have been murdered for the people of Punjab gave a fitting sentiments have been books, films, hurting Hindutva religious reply to the conspiracy by not falling and scholarly research. The bill s e n t i m e n t s , M . F a r o o k o f for it. Public peace was largely further adds to the quiver of hurt to Coimbatore was hacked to death maintained and the state had a religious sentiments by very by Islamic fundamentalists for peaceful transition of government mischievouslyadding 'sacrilege' to declaring himself to be an atheist, in subsequent elections. Instead of the list. The latter is a theological and lynch mobs are targeting learning from the people, both the concept. Its practical implications minority citizens in the name of cow Congress and the SAD are taking are determined by religious protection, it is necessary to Punjab along a dangerous path that doctrines, whose interpretations reaffirm the primacy of rights to life, will gladden only communal are the privilege of a religious freedom of expression, and fundamentalists. Both parties are establishment. Hence, the bill conscience. The bill goes in the k o w t o w i n g t o c o m m u n a l pushes Indian legal system very opposite direction and willy-nilly fundamentalist demands that are dangerously towards theocracy. All s t r e n g t h e n s t h e h a n d o f against constitutional secularism of the above do not have any fundamentalists. It needs to be and freedoms of expression and connection with communal strife. noted that article 19(1) of the religion. The latter occurs when public constitution does not permit any People's Alliance for Secularism peace is affected due to a clash, restraint on the freedom of speech and Democracy demands that the physical attack on citizens, or on the basis of sacrilege. The right bill passed by the Punjab assembly destruction of property. If a group of to freedom of religion includes the be scrapped. If the Amrinder Singh believers claiming to be hurt by a right to critically assess existing Government persists with it, then statement or action by someone religious beliefs to fashion different the central government should else go on a rampage, then they are beliefs. That is how any religious prevent it from becoming the law of responsible for communal strife, reform takes place. Many Sikhs in the land. and need to be punished. Passing Punjab keep Guru Granth Sahib at Released by People's Alliance for on the guilt of communal strife to home and pray to it. Anyone Democracy and Secularism (PADS) the supposed cause of the hurt seeking personal vendetta may Battini Rao, Convenor, PADS cannot be sustained legally. claim 'injury (or) damage' to the (95339 75195, [email protected]) book kept at someone's home. The q

Press Statement of Five Petitioners In ROMILA THAPAR & ORS. VS. UNION OF INDIA & ORS. IN THE SUPREME COURT OF INDIA (Decided 28th September 2018) We approached the Supreme laws like the UAPA. Our history as a The violent acts of those described Court when five well-known republic shows that, if left as terrorists, who plant bombs, lawyers, journalists and civil rights unchecked, such misuse causes instigate people to be violent, activists were arrested across the grave injustices and endangers the engineer riots and deliberately country on 28th August and civil liberties of all Indians. spread fear through their acts; and charged with abetting acts of terror Those arrested on 28th August The illegal or unjustified acts of under the Unlawful Activities have been accused of being state functionaries who, instead of (Prevention) Act (UAPA). implicated in acts of terrorism. pursuing the actual perpetrators of Our intention was to draw the However, we believe that there are violence, misuse their powers to attention of the judiciary to what we two kinds of terrorism both of which harass those who do not conform to believe is a case of gross misuse of create fear and undermine the the politics of their current masters. the state's powers under draconian foundations of our democracy: When the state uses anti-terror

PUCL BULLETIN, NOVEMBER 2018 12 laws without adequate proof government of the day. Since these conjecture, and that the police had against persons known to be arrests follow similar arrests made been taking liberties with the truth working for the rights of the weaker in June, the arrests of 28th August and besmirching the reputation of sections of society, it is also point to a continuing attempt to the activists by doing a media trial. spreading a kind of terror. Arbitrary erode these rights. Under such circumstances, the arrests on implausible charges, like Our petition was essentially an police's ability to conduct a free, fair those of 28th August, are a source appeal to the Supreme Court to and impartial investigation is in of anxiety for us all. They mean that check this erosion of rights and serious doubt, as has been held by the police can walk into our homes protect the liberty and dignity of J. Dr. DY Chandrachud. and arrest us – either without a human rights activists. We, the Petitioners, are pleased to warrant, or a warrant written in a Today's judgment has provided note that at least the liberty and language we don't understand – protection to the activists for a dignity of the human rights activists and then accuse us of activities further period of 4 weeks and has has for the time being not been about which we know nothing. given them the liberty to seek jeopardized and the Supreme It has always been assumed that a remedy from the appropriate Court has protected the same. genuine democracy will respect the courts. Our stand in this case finds Signed, Delhi, 28th September constitutional and legal rights of vindication in the dissenting opinion 2018: every citizen, including the right to of J. Dr. DY Chandrachud who has 1. Romila Thapar; 2. Devaki Jain; 3. hold opinions different from – or categorically held that liberty Prabhat Patnaik; 4. Satish even in opposition to – those of the cannot be sacrificed at the altar of Deshpande; 5. Maja Daruwala q

The Caravan, 29 September 2018: Was Chandrachud's Dissent in the Bhima Koregaon case initially a Unanimous Verdict? Arshu John On 28th September, a three-judge below—mentioned only one The Supreme Court registry's notice bench of the Supreme Court judgment, to be pronounced by stating that Khanwilkar would be pronounced its verdict on a writ Chandrachud. On the morning of the pronouncing a judgment provided petition challenging the arrest of five hearing, the registry uploaded a no explanation for why the error activists, writers and lawyers notice on its website clarifying that occurred. Rajkumar Choubey, the purportedly in relation to the the “pronouncement of judgment by listing registrar in the Supreme violence at Bhima Koregaon earlier Hon'ble Dr. D.Y. Chandrachud may Court, declined to speak on the this year. The petition sought their be read as to be pronounced by record about the case. release from custody and asked for 'Hon'ble A.M. Khanwilkar and According to the senior advocate the case to be handed over to a Hon'ble D.Y. Chandrachud, JJ.'” P r a s h a n t B h u s h a n , w h o c o u r t - m o n i t o r e d S p e c i a l Going by convention, the Supreme represented one of the petitioners, Investigation Team. A majority Court registry ought to have the omission of Khanwilkar's name judgment written by AM Khanwilkar, mentioned Khanwilkar's name along was likely not by accident. “This is an on behalf of himself and the chief with Chandrachud's in the cause list important case for the government,” justice, Dipak Misra, dismissed the for the Bhima Koregaon case. For he told me. Bhushan said that it is petition. But until the evening of 27 instance, the listing for the petition possible that the government learnt September, the Supreme Court's challenging the prohibition of that Chandrachud was writing the website indicated that there would women's entry to the Sabarimala judgment and had “gotten alarmed.” be only one judgment in the temple, also heard in the chief The senior advocate Abhishek Manu case—by the dissenting judge, DY justice's court on 28 September, Singhvi, who also represented one Chandrachud. noted, “Judgment by: Hon. The of the petitioners, refused to Every day, the Supreme Court Chief Justice, Hon. Mr. Justice comment because he was a counsel registry uploads cause lists—the Rohinton Fali Nariman, Hon. Dr. in the case. The additional solicitor cases each bench will hear—of the Justice D.Y. Chandrachud and Hon. general, Tushar Mehta, also following day on its website. The lists Ms. Justice Indu Malhotra.” The declined comment, noting that “as [a mention the judges who will hear case was heard by a bench of five matter] of principle, I do not discuss each case, the scheduled time of the judges, four of whom pronounced about any matter in which I have hearing and the judges who will be judgments. (Khanwilkar was the fifth appeared.” pronouncing verdicts. judge.) Although the list did not Bhushan emphasised one aspect of In the case of the Bhima Koregaon clarify which judges would be Chandrachud's judgment, which he petition, however, the cause list as of c o n c u r r i n g o r said was a “giveaway” that it was the evening of 27 September—a dissenting—Malhotra's judgement originally a unanimous verdict on screenshot has been reproduced was a dissent—all four judges were behalf of all three judges. In the final mentioned. PUCL BULLETIN, NOVEMBER 2018 13 p a r a g r a p h o f h i s d i s s e n t , Central Bureau of Investigation in writes: “The two panch witnesses Chandrachud writes: “I would direct the interest of fair and impartial are employees of the Pune that the petition be listed after three justice. In two other cases that are Municipal Corporation. It is not days for orders on the constitution of used to deny the relief to transfer the disputed before this Court that they Special Investigation Team.” It is odd investigation, Chandrachud notes travelled as part of the police team for a dissenting judgment to order crucial facts that distinguish the which made the arrest.” He writes in that the case be listed again, matter at hand—one judgment his conclusion: especially when the majority refused a request for transfer of I am of the view that while the judgment dismisses the petition in investigation by an anonymous investigation should not be question. “He would not have written petitioner, while the other featured a thwarted, this is a proper case for this if it was a dissent,” Bhushan petitioner who approached the court the appointment of a Special said. with “unclean hands.” In the Bhima I n v e s t i g a t i n g T e a m . Chandrachud's opinion also Koregaon case, he writes, the Circumstances have been drawn contains other observations peculiar petitioners are neither anonymous to our notice to cast a cloud on for a dissenting judgment. Earlier in nor is there any argument “that the whether the Maharashtra police the final paragraph, he writes, “The petitioners have been motivated by has in the present case acted as Special Investigation Team shall p e r s o n a l g a i n o r p o l i t i c a l fair and impartial investigating submit periodical status reports to considerations.” agency. Sufficient material has this Court, initially on a monthly Even without specifically referring to been placed before the Court basis.” But again, the majority t h e m a j o r i t y j u d g m e n t , bearing on the need to have an judgment specifically rejects the C h a n d r a c h u d ' s d i s s e n t independent investigation. plea to transfer the case to a court- demonstrates other significant Another indication that Khanwilkar's monitored SIT, and permits the Pune failings of the verdict. After citing judgment was written at the eleventh police to continue its investigation. these four cases, Khanwilkar writes hour is his reluctance to consider in Pertinently, Chandrachud adds a that “no specific material facts and detail the petitioners' submissions footnote at the end of that sentence, particulars are found in the petition concerning the Pune police's which acknowledges that his is a about mala fide exercise of power by conduct of the investigation, even dissenting opinion, but provides little the investigating officer.” However, though such consideration would be clarity on the directions issued in the in his dissent, Chandrachud refers to essential to determine whether the last paragraph: “Speaking as I do for and relies on several such investigation is fair and unbiased. the minority, I have not indicated the arguments made by the petitioners. “This is not the stage,” Khanwilkar names of the personnel who would For instance, the petitioners pointed writes, “where the efficacy of the constitute the SIT. Should that out that the police had released 13 material or sufficiency thereof can be occasion rise, liberty is granted to unverified letters, which it claimed to evaluated nor it is [sic] possible to seek an appropriate direction from be proof of a Maoist connection, to enquire into whether the same is this Court.” the media. “The letters are unsigned genuine or fabricated. We do not Chandrachud makes other specific and do not bear any identifiable wish to dilate on this matter lest it references to his opinion being the particulars including e-mail would cause prejudice to the named dissenting judgment. Some of these a d d r e s s e s o r h e a d e r s , ” accused and including the co- mentions underscore another Chandrachud writes. accused who are not before the reason Bhushan offered for why he He also notes the petitioners' Court.” thought the dissent was originally a argument that seven of these 13 He repeats the phrase later in the unanimous opinion—Khanwilkar's letters were authored by or judgment as a justification for majority judgment appeared to be “a addressed to one “Comrade refraining from “dealing with the rushed overnight job.” Prakash” and that the judgment factual issues raised by the parties” The majority judgment primarily convicting the Delhi University because it may cause “serious rests on its finding that “the accused professor GN Saibaba had noted prejudice” to the accused. Again, cannot ask for changing the that he used the pseudonym towards the end of the majority Investigating Agency or to do “Prakash.” Given that Saibaba has judgment, before declaring that the investigation in a particular manner been lodged in Nagpur Central Jail five activists will remain under house including for Court monitored since March 2017, the petitioners arrest for four more weeks, i n v e s t i g a t i o n . ” H o w e v e r , argued that “the alleged letters Khanwilkar uses the same phrase. Chandrachud challenges the attributed to him after that date are He writes: “We may hasten to applicability of the case law relied ex-facie fabricated.” mention that we have perused the upon to make this assertion, raising Chandrachud also notes Singhvi's Registers containing relevant fundamental concerns over four of submissions about the police documents and the Case Diary the cases mentioned by Khanwilkar. bringing witnesses from Pune for the p r o d u c e d b y t h e S t a t e o f He shows that in two of the arrests, which the senior advocate Maharashtra. But we have avoided precedents cited—one of them said amounted to a “gross violation to dilate on the factual position written by Khanwilkar himself—the of law rendering the arrest, search emerging therefrom, lest any Supreme Court had permitted the and seizure unlawful.” Accepting this prejudice is caused to any accused transfer of investigations to the argument, the dissenting judge or the prosecution, in any manner.” q PUCL BULLETIN, NOVEMBER 2018 14 PUDR Press Release: October 1, 2018 On the Supreme Court's Verdict on the Arrest of 5 Activists under the UAPA

People's Union for Civil Liberties d e m o c r a c y , e l e c t e d custody remand orders by and Democratic Rights (PUDR) representatives, political parties, magistrates without even reading welcomes the Supreme Court's bureaucracies of all kinds—from the charges or the basis to permit order on the petition filed by Prof. revenue and land to forest and a r r e s t h a s a l l b e c o m e Romila Thapar and others for water, courts and tribunals at commonplace in the world of extending protection from custody various levels—as well as civil UAPA. The circumstances of the to the five activists- Gautam society organisations concerned present case have sharply brought Navlakha, Varavara Rao, Vernon with civil, political and economic out the abuse that the vesting of Gonsalves, Sudha Bhardwaj and rights or those promoting people's such extreme power permits and Arun Ferreira- arrested a month welfare through provision of access the same is on record with the ago by the Maharashtra Police. A to basic necessities through Supreme Court and the High three-judge bench in its 2:1 majority community efforts or charity. The Courts at Delhi and Chandigarh. judgment, even in refusing the U A PA c o n d e m n s a l l s u c h Besides lawyers, researchers and demand of the petitioners for association as criminal based on political activists, those working in constituting a Special Investigating political prejudices of governments the field of safeguarding human Team, recognised the damage to in power. Instances abound of rights are particularly prone to be individuals that can be caused by threats to and criminal prosecution victims of the abuse of law. They such arbitrary arrests and has of family members, community have to necessarily engage with enabled every possible challenge representatives, lawyers and other people, organisations and groups to this power before the appropriate advocates, civil rights activists and that hold opinions, which are at courts to secure personal liberty of those providing welfare. odds with the state or with the the five activists. An inspiring and For those charged in this manner, governments in power. In such a detailed assertion of the rights to the UAPA gives virtually unlimited context, the personal whim of a personal liberty and to political power to the police to arrest and police officer or the desire for opinion in the judgment delivered keep people in jail for long periods. vendetta for a politician or removing by Justice Chandrachud, in his Provision for bail is restricted to the an irritant for a government can dissent, is heartening. extent of either being non-existent easily lead to registration of cases The two differing opinions in the or is extremely difficult to avail, where association is criminalised judgment, have given occasion to which has ensured that all those and the innocent are framed. PUDR to reiterate the obvious flaws accused rot in jails endlessly, Therefore, an immediate stop is and possibilities of misuse within sometimes for many years, even to required to the use of this the UAPA, especially the notion of be finally acquitted and declared expansive view of association 'association' which forms an i n n o c e n t b y t h e c o u r t s . given in the UAPA, to the provisions important source of arbitrariness Furthermore, the application of to keep accused endlessly in under the law. The UAPA blurs all UAPA works as a character- prisons and to halt the arbitrary distinctions for the causes for assassination, condemning the sway of the powerful. association and overlooks the fact accused even before investigation PUDR shall continue to strive for that association may arise from has begun. Selective statements the repeal of laws such as the multiple needs involving the family by the police, even more selective UAPA and campaign against it or the community, religious, cultural anonymous releases to media through the courts, the legislatures or economic. Equally, associations houses, high-pitched accusations and society at large. may arise from institutions of masquerading as facts, leading to Shahana Bhattacharya, Sharmila Purkayastha, Secretaries, PUDR q Note: Gautam Navalakha of PUDR was one amongst the five human rights activists arrested by the Maharashtra police on 28th August, 2018 in different parts of India, along with Sudha Bharadwaj of PUCL, Vara Vara Rao, Vernon Gonsalves and Arun Ferreira. They were alleged to be involved with the Bhima Koregaon case in Pune, Maharashtra. There was a country wide uproar over the arrests which led to the filing of a PIL before the Supreme Court by a group of 5 eminent citizens led by Romila Thapar. Even before the intervention in the SC, Gautam Navalakha's lawyers had filed a Habeas Corpus petition before the Delhi High Court. After the SC pronounced a split verdict on 28th September, 2018, the Delhi High Court Bench held the arrest and remand of Gautam Navalakha to be invalid and illegal. The following statement was issued by Gautam after his release from house arrest. He has since filed a petition before the Bombay High Court to quash the prosecution launched against him. We shall carry updates on that as the case progresses. Gautam Navalakha's Statement on His Release “Statement of an Urban Naxal!” I wish to thank the majority and for putting up a spirited fight on our my freedom. It thrills me no end. dissenting Justicesof the Supreme behalf, whose memory I will My dearest friends and lawyers led Court for their judgment, which cherish. I am humbled by the by Nitya Ramakrishnan, Warisha allowed us four weeks to seek relief solidarity, which crossed borders, Farasat, Ashwath, along with in this matter, and the public- rallying in our support. others in the legal & logistics team, spirited citizens & lawyers of India From Delhi High Court I have won literally, 'moved heaven and earth'

PUCL BULLETIN, NOVEMBER 2018 15 to win me my freedom. I don't know their monumental victory recently Friends, sacchai aur imandari se if I can ever repay this debt. Nor to after a relentless and stubborn lade shabdgoli aur gaali se the senior lawyers who argued in struggle, which has opened the z y a d a t a k a t v a r h o t e h a i n , our favour in the apex court. The door for as significant a social a a j y e h s a a b i t h o r a h a h a i . period of house arrest, despite the reform movement as the one fired Hamaregeet aur kavitayon mein restrictions imposed was put to by Babasaheb Ambedkar for the josh hai,aur hamarekaam aur good use, so I hold no grudge. annihilation of caste, exhorting us lekhnikaaadhar reason aur facts However, I cannot forget my co- all to 'educate, organise and hain. accused and tens of thousands of agitate'. Our solidarity was slow in To all my nearest and dearest, let us other political prisoners in India coming, but your perseverance continue to speak up for the who remain incarcerated for their forced us to change. You brought a enforcement of our constitutional ideological convictions, or on smile back on our faces and freedoms and against oppression & account of false charges filed rainbow colours in our lives. exploitation in all forms. against them, and/or wrongful Also, freedom won by Bhim Army's Let's recall Pash ke yeh anmol conviction under Unlawful Activities Chandrashekhar Ravan and his bol: (Prevention) Act - UAPA. Fellow comrades Sonu and Shivkumar 'Hum LadengeSaathi accused in the same matter have from preventive detention is Ki ladne ke baghair kuch bhi gone on hunger strike against the particularly reassuring because it nahimilta maltreatment inside the jails and shows the power of indomitable Hum ladenge demanded that they be recognised resistance against a socially Ki abhitak lade kyonnahi as political prisoners/prisoners of entrenched casteist tyranny, from Hum ladenge conscience. Other political ground below. Apni sazakabulne ke liye prisoners too have time and again My Salaam to friends in JNUSU for Ladtehuey mar jaane walon ki sat on hunger strike and demanded the historic victory of the United Left yaadzindarakhne ke liye the same. Their freedom and their panel which proves yet again that rights are precious to Civil Liberties united resistance is the need of the HUM LADENGE SAATHI & Democratic Rights movement. hour - only thus can we face Lal Salaam! But, there is reason to celebrate. persecution and struggle so that it Gautam, Monday, October 1, 2018 q I salute the LGBTQ comrades for gathers critical mass support. Bhima Koregaon case: Delhi HC orders release of activist Gautam Navlakha from house Arrest1 The Scroll, 01st October, 2018 The High Court also rejected the spirited fight on our behalf, whose violence in Bhima Koregaon. This Maharashtra Police's petition to memory I will cherish,” Navlakha was part of a larger plot, the extend his house arrest by at least said in his statement. “I am police claimed, to assassinate two days. humbled by the solidarity, which Prime Minister Narendra Modi and The Delhi High Court on Monday crossed borders, rallying in our overthrow the government. The ordered the release of activist support.” activists are currently under house Gautam Navlakha, who was He also mentioned the other arrest. arrested in the Bhima Koregaon activists arrested along with him On September 28, the Supreme case on August 28, ANI reported. and said he cannot forget them Court allowed investigation The court said his detention was “and tens of thousands of other officers to continue with their untenable by law and ended his political prisoners in India who inquiry into the violence. The court, house arrest immediately. The remain incarcerated for their in a 2:1 judgment, rejected the plea ideological convictions or on for an inquiry by a Special judge also set aside the transit account of false charges filed remand ordered by a court in the Investigation Team into the arrests against them and/or wrongful of activists in the case. It also city's Saket locality against conviction under Unlawful Activities Navlakha. extended the house arrest of five (Prevention) Act”. activists by four weeks. While Chief The High Court also rejected the The Pune Police arrested Maharashtra Police's petition to Justice of India Dipak Misra and Navlakha, Vernon Gonsalves, Arun Justice AM Khanwilkar delivered extend Navlakha's house arrest by Ferreira, Sudha Bharadwaj and at least two days. the majority judgment, Justice DY Varavara Rao on August 28 as part Chandrachud was the sole The activist said he was thrilled by of their investigation into violence the court's order and thanked his dissenter. during an event in Bhima Courtesy: The Scroll.in legal team. “I wish to thank the Koregaon near Pune on January 1. 1https://scroll.in/latest/896584/b majority and dissenting Justices of The police claimed the activists hima-koregaon-case-delhi-hc- the Supreme Court for their were “urban Naxalites” who used judgement, which allowed us four orders-release-of-activist- an anti-caste commemoration gautam-navlakha-from-house- weeks to seek relief in this matter, event in Pune to whip up arrest @ 15Oct2018 q and the public-spirited citizens and sentiments that resulted in the lawyers of India for putting up a

PUCL BULLETIN, NOVEMBER 2018 16 Why I am with the minority opinion in the split verdicts on Aadhaar, Sabarimala, Activists' Arrests1 Girish Shahane The Supreme Court pronounced a suggests there may have been a prosecution withdrew its case. series of important verdicts in late late U-turn in their opinion, after Although imprisoned by a September. Refreshingly, all dealt they had initially concurred with succession of regimes, he is yet to with matters that are properly the what is now a dissenting minority be convicted a single time. And now c o u r t ' s d o m a i n , n a m e l y opinion by Justice Dhananjaya we are asked to believe he has fundamental freedoms and rights, Chandrachud. been plotting the murder of rather than policy issues which are The petition seemed like a long Narendra Modi. best left to legislators but which the shot. The petitioners invoked Entry of women at Sabarimala: In court routinely takes on, like the Article 32 of the Constitution, which the case of the entry of women into question of how dark your car's allows the Supreme Court great t h e A y y a p p a n t e m p l e a t windows can be. I'm not joking, latitude in injecting itself into Sabarimala, the majority held the back in 2012, the Supreme Court matters where fundamental rights view that the infringement on entertained a public interest are at stake. However, the highest women's right to practise their litigation on window tinting, and court was unlikely to accept a plea religion under Article 25 (1) of the ruled on how dark glass could get by unrelated people to interfere in Constitution was serious enough to without promoting heinous acts in an investigation that was still in warrant an intrusion into religious travelling vehicles. The verdicts progress and being conducted by a practice. In this case, I side with and dissenting opinions revealed a competent authority. That the Justice Indu Malhotra, who wrote a t u g o f w a r b e t w e e n t h e matter ended in a split verdict dissenting opinion. There are Constitution's stress on individual shows what a sham the Pune hundreds of thousands of temples liberty on the one hand, and its P o l i c e i n v e s t i g a t i o n w a s . in India where women are h a n d i n g o f w i d e - r a n g i n g , Chandrachud pointed to several welcomed; in fact, there are potentially intrusive powers to the lapses, such as a quote from a Ayyappan temples in every city with state on the other. Bertolt Brecht play being read as a a significant Malayali presence, The court's verdicts on adultery and sign of terrorist intent; a letter and almost none of them bar the gay rights were unanimous, and purportedly written by Sudha entry of women. Nor is there a welcomed by liberals. On the issue Bharadwaj, one of the accused, blanket ban against female of the Bhima Koregaon arrests, which contained 17 words spelled worshippers in Sabarimala, only women's entry into the Sabarimala the Marathi way, although she those between the ages of 10 and temple and Aadhaar, the court s p e a k s n o M a r a t h i ; t h e 50. This restriction derives from a produced divided verdicts, and I memorandum of arrest being mythology of celibacy and found myself siding with the signed by Pune Municipal asceticism associated with the dissenting minority. In each Corporation employees who particular deity. The shrine's power, instance, the majority opinion travelled to the site with the police, for believers, is intimately attached favoured the rights of the state over although protocol demands at least to that mythology, and the those of individuals, corporations one witness be a local known to the elaborate rituals and pilgrimage and belief systems. accused; and leaks by police they undertake draws from the Bhima Koregaon arrests: In the officers to the media of letters that same ideas. Given the plethora of first case, Romila Thapar and other found no mention in the transit female-friendly temples in every prominent intellectuals petitioned applications filed by the police. town and city in India, I do not see the court against the arrest of the The majority did not rule on the how denying women of child- activists Gautam Navalakha, factuality of any of these matters, bearing age entry into this Sudha Bharadwaj, Varavara Rao, having decided the rights of the particular shrine curtails their Arun Ferreira and Vernon accused had not been so blatantly freedom of worship significantly Gonsalves by the Maharashtra disregarded as to warrant the enough to justify the pain the Police. The petitioners asked for a court's intervention. I hope there change in rule will cause to the Special Investigation Team to be will be a more robust pushback at faithful. established to probe the issue and some point against the foisting of The denial of access to women of accused the police of making cases by the police and their child-bearing age leaves many dissent a crime. The majority t r e a t m e n t o f p r o c e s s a s outraged, but that outrage has little opinion, written by Justice AM punishment. Consider that one of to do with a perceived curtailment Khanwilkar on behalf of himself and the accused, Varavara Rao, who is of freedom of religion, and Dipak Misra, who was the chief now 77 years old, has been everything to do with a sense that it justice then, rejected the implicated in 25 cases over the is a discriminatory provision. petitioners' demands, although an years, starting in the 1970s. He was Discriminatory practices are intriguing thesis outlined by Arshu acquitted in 13, discharged in three, everywhere in every faith, but the John in Caravan magazine while in nine instances the Supreme Court isn't about to

PUCL BULLETIN, NOVEMBER 2018 17 mandate, for example, that women throated support of civil liberties e s s e n t i a l l y r e t u r n e d t h e be given a position on par with men and individual privacy against the programme to its original intent as in the Catholic clergy, nor should it threat of a surveillance state. The an efficient enabler of government do so. It is critical for a secular state majority judgement was spun in the b e n e f i t p r o g r a m m e s . T h e to have the power to override press as being “pro-Aadhaar”, as if scrapping of Section 57 is a major religious faith, particularly in a it was an up-down vote in favour or boost for privacy advocates and a nation like India with its ghastly against. In truth, there were a massive blow for the Modi h i s t o r y o f c a s t e - b a s e d number of different issues government's Aadhaar mission- discrimination, the denial of access considered, and what the majority creep. The greatest danger of to places of worship to people did was to affirm the right of the Aadhaar was that it would allow deemed untouchable. However, state to mandate Aadhaar not just data harvested by private there is also a danger in not giving f o r b e n e f i t s a n d s o c i a l enterprises to be meshed easily customs and traditions their due, as programmes, but also for tax with data collected by the I mentioned in criticising a previous returns. On the other hand, it struck government. As far as I can tell, that Supreme Court verdict banning the down a number of clauses of the threat has now receded. While I sale of firecrackers during Diwali. Aadhaar Act, notably Section 57, cheered Justice Chandrachud's The Aadhaar verdict: The final w h i c h a l l o w e d p r i v a t e stand, I can happily live with the split verdict is the most far-reaching organisations to use Aadhaar- majority verdict. of the lot, the long-awaited related biometric data as 1https://scroll.in/article/896920/why-i- judgement on Aadhaar. I have authenticators of identity. am-with-the-minority-opinion-in-the- made my position on the issue Aside from a few small additions, split-verdicts-on-aadhaar-sabarimala- clear, and was gladdened by like the linking of PAN cards to activists-arrests @ 12Oct2018 Justice Chandrachud's full- Aadhaar, the majority judgement Courtesy: The Scroll, Oct 04, 2018 q

PUCL TN & Puducherry Press Statement, 21st October, 2018: PUCL Condemns Death Threat issued to D. Ravikumar, Former MLA and also a Former President of PUCL TN & Puducherry PUCL is greatly concerned by In 2011 bombs and dangerous ( V i d u t h a l a i S i r u t h a i k a l increasing news about the growth weapons were seized from the Katchi).PUCL is extremely of activities of Sanatan Sanstha, a offices of this organisation. With a concerned over this news. PUCL Hindu extremist organization in history of extremist activities, condemns the targeting of Mr. Ravi Tamil Nadu. This organization, Sanatan Santha is also allegedly Kumar by a Hindu fundamentalist / which started functioning in 1999, involved in the assassination of extremist group. PUCL also has openly declared its objective of secular intellectuals and thinkers condemns the creation of a list to establishing a Hindu Rashtra by the like Narendra Dabholkar, Goving target those who have given a call year 2025. The extremists activities Pansare, Kalburgi and Gauri against communalism and divisive carried out by this organisation Lankesh as has been stated by politics. towards this goal is causing threat police officials. PUCL demands that the Tamil to India's sovereignty. A case field The organization is working to Nadu government and the police by Maharashtra Government develop a sense of hatred amongst should keep constant watch over before the High Court describing Hindus towards members of other the activities of Sanatan Sanstha this organisation as a religious religions. There is news that the and take action against the extremist organisation is still organisation is also providing organisation for its unlawful pending. Many criminal cases are training in use of weapons. A report activities. PUCL warns that unless pending in courts in different states of the Intelligence Agencies has the activities of such communal against Sanatan Sanstha members reported that with such a history of extremist organisations like the of allegedly being involved in criminal, extremist activities the Sanatan Sanstha are nipped in the religious terrorist activities. Some Sanatan Sanstha has started bud, (in the beginning stages), the members of the organisation have openly functioning in Tamil Nadu history of communal harmony in been convicted for having also and and that it has prepared a Tamil Nadu will be seriously committed offence of placing list of persons to be assassinate / affected. bombs in a hall in Thane, (near killed. The police has reported that Gana Kurinji, President, R. Mumbai). 6 members of the amongst the persons in this list is Murali, General Secretary, PUCL organisation have been implicated also the name of Mr. D. Ravikumar, Tamil Nadu & Puducherry in a 2011 bombblast case in Goa. General Secretary of VCK Party ATTENTION! PLEASE NOTE: PUCL National Office has now shifted to 332 (Ground Floor), Patpar Ganj, (Opposite Anand Lok Apartments., Gate No. 2), Mayur Vihar Phase-l, New Delhi-110091. (Landline: 011-22750014) PUCL BULLETIN, NOVEMBER 2018 18 Solidarity Forum for Dissent In solidarity with Greenpeace India, The Quint and The News Minute Released at Press Club of Bangalore, 15th October 2018 Over the past week, we have been those who take up unpopular Solidarity Forum for Dissent is a witness to raids by Income Tax causes.” platform of those who have decided Department and Enforcement The act of Enquiry and Dissent are to stand up and assert democratic Directorate of the Indian Finance fundamental aspects of citizenship, rights of people and civil society Ministry on the offices of The Quint and helps shape a vibrant and organisations and stand in and Greenpeace India, two key productive democracy. Any solidarity with those who are being civil society organisations of India, i n d i v i d u a l o r o r g a n i s a t i o n arbitrarily targeted and subjected to i n D e l h i a n d B a n g a l o r e exercising this Fundamental Right abuse and harassment by the respectively. We were to learn later of Citizenship, which is also a State. In the last ten days, three that The News Minute office also Fundamental Duty of Citizenship, organisations of India who had IT officials dropping in, key must not be harassed or terrorised celebrate dissent, The Quint, The journalists were questioned and by any form of abuse of power; be News Minute and Greenpeace copies of documents taken. t h i s i n t h e G o v e r n m e n t , India, were raided by the agencies In the case of Greenpeace, the ED Corporation, Public Sector, Civil of the Central Government, which officials had no warrant to search Society, Academia and Media. We from all angles appear to be an the office. Yet, almost 8 to 10 of believe such encroachments of attempt to muzzle creative them entered Greenpeace office in fundamental rights constitute an alternatives to the vision of the Bangalore, questioned key attack on the Constitutional country, and threaten those who officials, searched documents and promise of delivering a secure and dare to dissent. The raid on took away copies of several fearless Citizenship for all, Greenpeace happened even documents, all without any official especially those who dissent. without even a warrant or a notice communication or authority vested The Constitution of India has served on them. by the due process of law. vested with the citizens of the The bank accounts of Greenpeace Although Greenpeace India stated country an inviolable set of India has been frozen, threatening clearly that they had nothing to hide democratic rights, empowering the livelihood of hundreds of and can share documents related them to live life in the true spirit of a employees there. Greenpeace is to financial transactions openly, mature, sovereign republic. a l s o a c c u s e d o f i l l e g a l l y their accounts were frozen by the Though baby steps, these channelising foreign funds into end of the day by the ED officials. constitutional rights have formed India, when independently audited We consider this as not merely an the traditional moorings of statements of the organisation of attack on these organisations governance and withstood many the past three years very clearly alone, but on civil society in challenges in the form of an show that the entire funds in the general, media included. We note imposed emergency in the 70s and Greenpeace accounts were raised that those who are critical of the the political vacuousness in later through individual donations from Government, as also those who are decades. Every time, democratic the people in India. Despite exposing and challenging human voices have emerged stronger. It is cooperating with the authorities, rights and environmental violations this culture of democratic their bank accounts remain frozen. of certain Corporations, are being rejuvenation that is in peril in This is a direct assault on a targeted. We also note that those current times. b o n a f i d e , i n d e p e n d e n t l y who work with and for advancing Today's State appears determined functioning, environmental t h e r i g h t s o f v u l n e r a b l e to uproot the foundational organisation. Now, they have been communities, especially Dalits, principles of a democratic India by verbally communicated to provide Adivasis, LGBT communities and criminalising all and every opinion the list of all individual donors so the women, are being systemically that doesn't commit to its exclusive agencies can make 'random calls' targeted as well, in such raids and mono-culturist views. The t o v e r i f y t h e v e r a c i t y o f across India. Often, this has belligerent and often feudal manner Greenpeace's claims. This when resulted in arrests of key activists in which the State is using each and every transaction is and journalists. d e m o c r a t i c i n s t i t u t i o n s legitimate and involving bank to We wholesomely agree with predatoriously against it's own bank transfers. This potentially Supreme Court Judge D. Y. c i t i z e n s a n d c i v i l s o c i e t y atomises state surveillance to the Chandruchud who has held: organisations, is a matter of grave level of each individual who support "Dissent is a symbol of a vibrant concern. When every thinking mind organisations like Greenpeace, the democracy. Voices in opposition is under threat, democracy suffers Quint and The News Minute. The cannot be muzzled by persecuting the most. State, it seems as institutionalised

PUCL BULLETIN, NOVEMBER 2018 19 Postal Regn. No.: DL(E)-01/5151/2018-2020 Posting : 1-2 November, 2018 at New Delhi PSO Date of Pub.: 27-28 October, 2018 the 'If you are not with us, you are Signatories: Leo F. Saldanha our targeted enemy' idiom into its (Environment Support Group), R: Regd. Office : governing framework. Manohar (Human Rights Defenders 332, Ground Floor, Patpar Ganj Solidarity Forum for Dissent is a Alert), Aakar Patel (Amnesty India), Opp.Anand Lok Apartments, Mathew Phillips (SICHREM); Nandini p l a t f o r m o f c i v i l s o c i e t y Mayur Vihar-I, Delhi 110091 (Greenpeace Supporter), Vijay Kumar Tel.: +91-11-22750014 organisations, individuals and (Karnataka Janaarogya Chaluvali), concerned citizens that has been Aruna Chandrashekar (Independent Fax : (PP) +91-11-42151459 established to protect the space of Journalist), Lekha Advavi (Alternative E-mail : [email protected] dissent in democracy. We are Law Forum), Vijay Kumar Seetappa, [email protected] together in solidarity with those Karnataka Janarogya Chaluvali, K. P. Website : www.pucl.org most vulnerable due to their Singh, Swaraj Abhiyan and others. dissenting views and to assert the Video Recording of the Press Conference is a c c e s s i b l e a t : h t t p s : / / y o u t u . b e f o u n d a t i o n a l p r i n c i p l e s o f /_d1BUYfrD6U q democracy in India. Founder : Jaya Prakash Narayan President : Ravi Kiran Jain PUCL Announces the Publication of the Compilation of General Secretary : V. Suresh Judgements of the Supreme Court in PILs filed by the PUCL Treasurer : Surendra Kumar Vice-Presidents : Binayak Sen, Taking Human Rights Forward G. Saraswathi (Ms.), N.D. Pancholi, P.B. D’sa, Radhakant Saxena, People's Union For Civil Liberties (PUCL) Sanjay Parikh. Secretaries : Kavita Srivastava (Ms.), Judgments Rohit Prajapati, Sudha Bharadwaj (Ms.), Vandana Misra (Ms.), YJ Rajendra Organising Secretaries : Ajay T.G., Arjun Sheoran, Nishat Hussain (Ms.).

Editor : V. Suresh Editorial Board : Sanjay Parikh, Ms. Kavita Srivastava, Ms. Sudha Bhardwaj, Ms. Daisy Narain (Prof.) Assistance : Babita Garg

V. Suresh, General Secretary, PUCL, on behalf of People's Union for Civil Liberties; Printed at: Royal Offset, 489, Patparganj Indl. Area, Delhi-92; Published at: 332, Ground Floor, Patpar Ganj, Opp.Anand Lok Apptt., Mayur Vihar-I, Delhi 110091; Editor: V. Suresh.

Contribution Rs. 295/- per copy (plus postage extra) Copies may be obtained from the following address: PUCL National office, 332, Ground Floor, Patpar Ganj, Opp. Anand Lok Appartments (Gate No.2) Mayur Vihar-I, Delhi - 110 091 Tel.: 011- 22750014

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