SHAHEEN BAG JUDGEMENT -Oct 7, 2020--A QUICK ANALYSIS of AMIT SAHNI case

 

SHAHEEN BAG JUDGEMENT -Oct 7, 2020 AMIT SAHNI case

by Justice Kaul

1. It was pleasant surprise to see Shaheen Bagh judgement (Amit Sahni v Commissioner of Police, Delhi) in 13 pages, 23 paras when the issue involved was art 19 (1) (a) and (b) and the controversy was Shaheen Bagh.

2. The judgement rejected the argument of "R" model of democracy (Rights model) and reiterated the "RR model" (Rights with restrictions model). It lays emphasis on D4-Democracy, dissent, demonstration and designated place. Democracy cannot survive without dissent. Dissent can be expressed in the form of demonstration. But the right to dissent and demonstration is limited by designated place else it "would only lead to a chaotic situation". [But I think the authorities ought to see that the designated place rule under D4 does not lead to D5 ie deserted place rule.] 

 

 3. The Court also reminded that the protest during colonial rule and democratic rule is not similar thing. Democracy gives rights and imposes obligations. 

4. The conflict between art 19(a) and (b) vis a vis 19(d) was noticed and balance was attained. However, art 19(f) was equally in conflict which remained a subconscious element in the judicial process. 

The Supreme Court had 7 hearings. In Feb-5, Sept-1, Oct-1. 

Initially it was with the division bench of Justice Sanjay Kishan Kaul and KM Joseph. 

07-02-2020---- hearing, Application for permission to file additional documents/facts/annexures is allowed,

10-02-2020----- Issue notice returnable on 17.02.2020.

17-02-2020----- The Court observed that 

1. despite article 32 challenge to CAA, the right to protest is not taken away. 

2. With people with different points of view, demonstration in public ways will lead to chaotic situations. [Indeed the mood of the court was clear on Feb 17 that such demonstration is misuse of art 19 and rightly so.]

3. such protests on public ways should stop everywhere. 

4. two interlocutors appointed, Mr. Sanjay R.Hegde and Mrs. Sadhana Ramachandran, learned counsel 
   
   

24-02-2020--- Report in sealed cover submitted by interlocutors. 
Meanwhile many interverner applications were received. 

26-02-2020--- As there were riots in Delhi, the Supreme court was expected to do something on riots. However, the Supreme court  framed issue for clarity----whether the persons who are aggrieved by a legislation can sit on the road in the area which is known as Shaheen Bagh. It held that the High court, Delhi has already hearing on riots, therefore the Supreme court will not takeup any other issues. 

21-09-2020---Bench changed

1. Though the date was given in March but due to covid it was heard in September. Meanwhile the protest was over due to a pandemic. 

2. On this date many petitioners either withdrew the petition or were not present. The Court observed that the petitioner lost interest in the petition and also that “supervening circumstances have made any direction for relief not necessary at this stage.” 

3. The bench composition changed. Now it was Justice Sanjay Kishan Kaul, Justice Aniruddha Bose, Justice Krishna Murari. [if someone wants to mislead or create disrespect, distrust in the Supreme court s/he can say that initially a division bench with Justice KM Joseph was hearing. He was from a minority community. The protest against the Citizenship Amendment Act, 2019 is also about minorities' concern. A person who wants to create confusion as to the integrity of judges and the government can state that KM Joseph heard most of the hearings. But in the second last hearing, ie Sept 21 a new bench was set up. It had no judge of the minority community. A propagandist can imagine that the Government must have exerted pressure on CJI and the bench composition was modified. What was the need to modify? Since the last few months and indeed the last few years, a hate campaign against the Supreme court and the Supreme court judges are going on. They amount to contempt, tarnish the image of judges and cause huge damage to the reputation of the Supreme court.]

07-10-2020— 

The decision came in. The heads in colour and the sentences in bold are mine. As PDF judgement has been changed to word (non PDF was not available) there are some problems in settings. Pl bear with me.

The analysis of this author suggests that the judgement can be read under following heads--

1. Introduction 

1. Philosophical 

2. Factual Introduction

2. Delhi High court decision

3. Two interlocutors

4. Interlocutors failed as protestors had Cross views 

5. Hand of God

6. Argument of absolute right of peaceful protest

7. Prior permission essential but clear regulations for permission equally essential 

8. Protest against colonial rule and democratic rule : distinction 

9. Pubic Ways can not be occupied

Shaheen bag--undesignated as well as  blockage

10. Technology digitally fuelled movements and risk 

Shaheen Bagh-strength and weakness

11. Criticism of HC And Police Administration  

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3282 OF 2020

AMIT SAHNI …APPELLANT

Versus

COMMISSIONER OF POLICE & ORS. …RESPONDENTS

J U D G M E N T

SANJAY KISHAN KAUL, J.

PHILOSOPHICAL INTRODUCTION

1. Our country made tryst with destiny  on  the midnight hour  of  15th August  1947, shedding the colonial yoke. Despite the pain and turbulence of the partition, the best of the legal and political minds assembled together in the Constituent Assembly to give us one of the most elaborate and modern Constitutions.

One of the bedrocks of the Constitution of India is the separation of powers

between the Legislature, the Executive and the Judiciary.  It is the function of the

Legislature to legislate, of the Executive to implement the legislation, and of the

Judiciary to test the constitutional validity of the legislation, if a challenge is so laid.

FACTUAL INTRODUCTION

3. The Legislature, in its wisdom, enacted the Citizenship (Amendment) Act, 2019, which has its share of supporters and opponents. The Legislature performed its task. A section of the society, aggrieved by this legislative amendment, has filed petitions before this Court under Article 32 of the Constitution of India, assailing the constitutionality and legality of this amendment, which is pending consideration. There is no stay of the legislation for the purpose of record.

4. There have been protests against this legislation in Delhi and in different parts of the country. We had noted in our order dated 17.02.2020 that despite the law facing a constitutional challenge before this Court, that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation. We, however, simultaneously noted that the question was where and how the protest can be carried on, without public ways being affected.

Delhi High court decision

5. The aforesaid was in the context of a petition which was originally filed before the Delhi High Court, as Writ Petition (Civil) No. 429/2020, which was disposed of on the very first day, i.e., on 14.01.2020. The grievance made in the petition was that the persons opposing the Citizenship Amendment Act and the National Register of Citizens, the details of which were yet to be propounded, had
   

adopted a method of protest which resulted in the closure of the Kalindi Kunj- Shaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.

6. The High Court directed the respondent authorities to look into the grievances ventilated by the petitioner in the writ petition in accordance with the law, rules, regulations and Government policies, but simultaneously, it asked the respondent authorities to keep in mind the larger public interest as well as the maintenance of the law and order. It was also emphasised that the respondents had all the powers, jurisdiction and authority to control traffic wherever protests or agitations were going on, in the larger public interest. In such a situation, it was observed that no specific writ, order or direction can be issued as to how to handle the agitation or protest, or even the place of protest and traffic, as the same would be determined based on the ground reality and the wisdom of the police, especially where situations may keep changing every 10 minutes.

7. However, since the situation remained the same, the petitioner therein filed the present appeal by way of a Special Leave Petition against this order of the High Court.
   

8. We may note that intervention applications were also filed by parties claiming to have the best interests of the agitators in mind, or rather having sympathy for them. In our order dated 17.02.2020, we had put to the learned counsel of one of these applicants our concern that there may be persons of different points of view who may tomorrow seek to emulate this protest and such a scenario would only lead to a chaotic situation. Such kind of protests were, thus, required to cease on public ways everywhere.

two interlocutors

9. In our endeavour of pursuing an out of the box solution, we had considered it appropriate to appoint two interlocutors - Mr. Sanjay R. Hegde, learned senior counsel who was present in Court and Ms. Sadhana Ramachandran, who is a mediator trainer, to meet the protestors at the site. The interlocutors made appreciable effort and submitted a report before this court, which was taken note of by us on 24.02.2020. We had perused the report and found that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. However, unfortunate developments in other parts of Delhi required us to adjourn the proceedings.

interlocutors failed as the protestors had cross-purposes among them  

10. We had the benefit of a second report received on 22.03.2020 and perused the same. We believe that the interlocutors had done their best, but their efforts could not fructify into success, although the number of people at protest site had
    

eventually diminished. The report suggested that the views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance. While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road. Even after the arrival of the pandemic, when a visit was made to the site on 20.03.2020, it was found that there were about 35-40 takhts inside the tent and each takht had 2-3 women occupying the space, resulting in a rough estimate of about 75-100 women inside the tent, as well as 200 or more outside the tent having a connection with the protest. While the tent was occupying half of the carriageway, the remaining half  of the carriageway had been blocked by creating facilities such as a library, a large model of India Gate and a big metallic three-dimensional map of India located upon a very strong metal scaffolding and was anchored by heavy stones making its removal very difficult. It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other. Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realising the

ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.

11. We are conscious that we chartered a different path and thought of an out of the box solution towards an effort which can loosely be called a mediation. However, this did not produce a solution. But then, we have no regrets as we are of the view that it is better to try and fail, than not to try at all!

hand of God

12. The hand of God subsequently intervened and overtook the situation as not only our country, but also the world grappled with the Coronavirus pandemic. This pandemic, by its very definition, required coordination across the country and even beyond the borders of our country. This resulted in repeated appeals of the desirability of seclusion as a method to fight the disease. Greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared, albeit with some police action to remove the aforementioned structures. The pandemic has, however, not seen its end and we are still battling with the same. Thus, really speaking, the reliefs in the present proceedings have worked themselves out.

absolute right of peaceful protest-No

13. We, however, pen down a few more lines for clarity on the subject on account of its wider ramifications. Learned counsel for the applicants Mr.  Mehmood Pracha has sought to canvass that there was an absolute right of peaceful protest, both in respect of space and numbers. He submitted that the right under Article
    

19(1)(a) and 19(1)(b) of the Constitution of India are only circumscribed by the provisions of Clauses (2) & (3), and the only applicable aspect would be ‘public order’, but such restriction must be reasonable in character. On the other hand, the appellant herein sought to contend that such a situation should be avoided in the future and some norms may be laid down.

prior permission essential with clear regulations-Himat Lal K. Shah

14. Mr. Tushar Mehta, learned Solicitor General referred to judicial pronouncements to rebut the case sought to be made out by the applicants. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad ,1 a challenge was made to the rules framed by the Commissioner of Police, Ahmedabad, by the powers conferred under Section 33(1)(o) of the Bombay Police Act, 1951. One of these rules required prior permission to be taken for the holding of public meetings. The Supreme Court opined that the State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interests of public order. With regard to whether or not these rules violated Article 19(1)(b) of the Constitution of India, it was held that while the State cannot impose any unreasonable restrictions, a right to hold meetings on public streets was subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. However, as the rule requiring prior permission of the concerned authority did not

contain any guidance as to when such permission to hold a public meeting may be refused, it was found that the same conferred arbitrary powers and gave an unguided discretion to the concerned authority, and this was accordingly held to be ultra vires Article 19(1)(b) of the Constitution.

15. In Mazdoor Kisan Shakti Sangathan v. Union of India., this Court was concerned with regulating the aspect of demonstrations in the earmarked space by the concerned authorities at Jantar Mantar. The judgment endeavoured to emphasise on the principle of balancing the interests of the residents in the area vis-à-vis the interests of protestors to hold demonstrations at Jantar Mantar. The concerned police authority was directed to devise a proper mechanism for the limited use of the Jantar Mantar area for peaceful protests and demonstrations and to lay down parameters for the same. With regard to the orders being passed under Section 144 of the Code of Criminal Procedure, 1973 prohibiting activities like holding public meetings, processions, etc. in areas in and around the Parliament area, the Court noted that the tenor and language of such orders indicated that the concerned authority was to examine every request and take a decision as to whether it should or should not allow the proposed demonstration, public meeting etc., keeping in view its likely effect, namely, whether it would cause any obstruction to traffic, danger to human safety or disturbance to public tranquility etc. However, as such orders were repeatedly being passed, the same were held to amount to create a situation of perpetuity, and also amounted to what would be equivalent to the “banning” of public meetings, demonstrations, etc. The police and other concerned authorities were accordingly directed to formulate proper and requisite guidelines for regulating protests in and around the area.

protest against colonial rule and democratic rule : distinction 

16. India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self- ruled democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e., the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the
    

regulation by the concerned police authorities in this regard. Additionally, as was discussed in the Mazdoor Kisan Shakti Sangathan case, each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.

Pubic WAYS can not be occupied

17. However, while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippmann, who said “In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”), we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. 

shaheen bag--undesignated as well as  blockage-

The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest. Justice K.K. Mathew in the Himat Lal case4 had eloquently observed that “Streets and public parks exist primarily for other purposes and the social interest

3. See (supra)
   

promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.”

TECHNOLOGY, digitally fuelled movements and risk 

18. Furthermore, we live in the age of technology and the internet where social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication. Technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses. 

strength 

The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often-leaderless aspirations and evade usual restrictions of censorship; 

weakness

however, the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments, which often see parallel conversations running with no constructive outcome evident. 

Shaheen Bagh-strength and weakness

Both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks - as has been opined by the interlocutors and caused inconvenience of commuters.

19. We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.

CRITICISM –HC AND ADMINISTRATION-

20. We are also of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.

21. We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.

22. We, accordingly, close these proceedings, once again expressing our appreciation of the difficult roles played by the interlocutors.
    

23. The Civil Appeal stands disposed of, leaving the parties to bear their own costs.

…….J. [SANJAY KISHAN KAUL]

…….J. [ANIRUDDHA BOSE]

NEW DELHI. OCTOBER 07, 2020.

……….J. [KRISHNA MURARI]

पुलिस और प्रशासन की जवाबदेही-166A IPC FIRST ARREST SINCE 2013

 पुलिस और प्रशासन की जवाबदेही तय करने के लिए राजनीतिक, सामाजिक और कानूनी प्रणाली मौजूद है. जरुरत है उसे लागू करने की. विधिक प्रणाली में प्रशासनिक , दीवानी विधि और आपराधिक विधि तीनों का सहारा लिया जा सकता है. मध्यप्रदेश का यह समाचार आपराधिक विधि द्वारा पुलिस की जवाबदेही का एक उदाहरण है. इसे हर राज्य को लागू करना चाहिए. नरसिंहपुर, मध्य प्रदेश में पुलिस ने दुष्कर्म के मामले को दर्ज नहीं किया. दो पुलिस अधिकारियों के विरुद्ध FIR दर्ज कर गिरफ्तार किया गया है. संभवतः यह FIR, IPC की धारा 166A (c) के अंतर्गत हुई है, जो २०१३ से ही अस्तित्व में है. संभवतः यह इस प्रकार की पहली गिरफ्तारी है. सर्वोच्च न्यायालय ने भी एक मामले (  In Re Assessment of The Criminal Justice System In Response To Sexual Offences On 18 December, 2019) में यह स्वतः संज्ञान लिया है और राज्यों से पूछा है कि 166 A में क्या हो रहा है. इस मामले की सर्वोच्च न्यायालय को हर महीने सुनवाई करनी चाहिए,

https://www.outlookindia.com/newsscroll/mp-cop-held-for-not-registering-complaint-of-rape-victim/1947942?fbclid=IwAR0loIj_bWnbPKPjU1l2udxR90TdRa0OBIm2hLPNnVgHq9iNrx--Yr9bUo8

Narsinghpur (MP), Oct 3 (PTI) A policeman has been arrested in Madhya Pradesh''s Narsinghpur district for allegedly not registering a Dalit "rape victim''s" complaint for four days, following which she ended her life, a top officer said on Saturday.

The arrest was made after Chief Minister Shivraj Singh Chouhan took serious cognisance of the alleged lapse and ordered that a case be registered against the local police official. Two senior officials were also shunted out as per the orders.

The woman, who was allegedly raped by three men four days ago, committed suicide on Friday, police said.

An official in Bhopal said that Chouhan had ordered on Friday night that Assistant Inspector of Police (ASI) Mishrilal Kodapa of Gotitoriya police outpost in Gadarwara tehsil, some 50 kms from Narsinghpur district headquarters, should be booked and arrested for not registering the victim''s complaint of gang-rape.

Besides, as per the orders, Additional Superintendent of Police (ASP) Rajesh Tiwari and Gadarwara Sub Divisional Officer of Police (SDOP) S R Yadav were shunted out from Narsinghpur, he said.

"A case was registered against Kodapa and he was arrested under 166 (c) (public servant failing to record information) of IPC on Friday night," Jabalpur Zone Inspector General of Police Bhagwat Singh Chauhan told PTI.

The ASP and the SDOP have been transferred from Narsinghpur, he added.

Kodapa had been suspended on Friday after a video went viral in social media, in which the husband of the deceased woman accused the policeman of not registering a complaint of rape, police said.

The man was purportedly heard saying in the audio- visual clip that instead of taking action in the case, he was held based on a complaint lodged by the accused and had to cough up Rs 50,000 as a bribe for his release.

"Three men identified as Arvind and Parsu Choudhary, who belonged to the same community as the victim, and another accused Anil Rai, allegedly gang-raped the 32-year old woman on Monday. They trio has been arrested," Narsinghpur SP Ajay Singh said.

According to police, the accused allegedly raped the woman when she was in a field cutting grass for the cattle.

The police, however, said on Friday that the woman''s two nieces said that the accused caught hold of her and teased her, but did not confirm that she was raped.

As per the girls'' version, when they raised an alarm, the accused fled from the spot, police added.

SDOP Yadav, who has been shunted out, had said on Friday that the woman and her husband had orally complained to the police on the same day but there was no clarity in the complaint.

On Friday, when the victim went to fetch water from a tap, a local woman had allegedly taunted her, after which the victim returned home and hanged herself, police said.

Police said they have have already arrested that woman.

"Besides, Motilal, Arvind''s father, too, was arrested under IPC section 306 (abetment of suicide) as he had said something insulting to the woman," Yadav had said.

After the Dalit woman hanged herself, the police registered a case of gang rape against the three accused on Friday after four days. PTI COR LAL NP NP

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Disclaimer :- This story has not been edited by Outlook staff and is auto-generated from news agency feeds. Source: PTI

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https://www.thehindu.com/news/national/other-states/mp-police-officer-held-after-death-of-rape-victim/article32754960.ece

Family alleges police inaction leading to death of Dalit woman. 

The Narsinghpur police on Friday arrested an assistant sub-inspector of police (ASI) for not reportedly registering a case of rape against three men on the complaint of a 32-year-old Dalit woman on Monday, hours after she was found dead at her house.

“Her family members said the ASI refused to register the report,” Assistant Superintendent of Police Rajesh Tiwari told The Hindu. The police had suspended Mishrilal Kodapa and registered a case under section 166A(c) of the Indian Penal Code, he added.

On Friday morning the police found the woman dead at her house, said Gadarwara Sub Divisional Officer of Police (SDOP) S.R. Yadav. “She had gone to fetch water from a common tap where one Leela Bai taunted her, after which she returned home and reportedly died by suicide,” he said.

Meanwhile, the father-in-law of the woman told reporters she had died as the police didn’t act in time. “If the police had acted when she had approached them, she would have been here with us,” he said.

On Friday, the police arrested Arvind Choudhary, one of the accused, and his father Motilal, who allegedly insulted her. On Monday, the woman had gone to fetch fodder for cattle along with her nieces when the alleged incident took place.

The other two accused of rape, Parshu Choudhary and Anil Rai, were absconding and the police had declared a reward of ₹5,000 for information on them, said Mr. Yadav. “We are yet to receive the post-mortem report.”

https://www.hindustantimes.com/bhopal/mp-cops-abused-and-turned-away-gang-rape-victim-booked-for-delaying-fir/story-qY8SeqoWysUZanKWCgxa2J.html

MP cops abused and turned away gang-rape victim, booked for delaying FIR

The victim was broken after he rape and the treatment meted out by the police and took her own life on Friday.

BHOPAL Updated: Oct 04, 2020 11:23 IST

HT Correspondent | Edited by Abhinav Sahay

Hindustan Times, Bhopal/Jabalpur

The cops, however, claim that the rape victim’s complaint was very vague and therefore not registered. (Courtesy: Police Headquarters website)

  Another cop was booked in Madhya Pradesh’s Narsinghpur district on Saturday for allegedly refusing to lodge a first information report (FIR) of an alleged gang-rape victim, who died by suicide on Friday, said police.

The police also arrested two more accused- one for the gang-rape and the other for abetment to causing death by suicide.

However, police officers alleged that the FIR was not lodged since the woman’s complaint on September 28—the day of the incident-- and also on subsequent days, was vague. They also refused to share the details of her post-mortem report on Saturday.

On Saturday, Chichli police station in-charge sub inspector Anil Singh was booked under section 166A for non-recording of information under the Indian Penal Code (IPC). Earlier on Friday evening, Gotitoriya police outpost in-charge assistant sub-inspector Mishrilal Kodapa was booked and arrested under the same provision of IPC. Both have been suspended, said Ajay Singh, superintendent of police, Narsinghpur.

Also Read: Dalit woman dies by suicide in Madhya Pradesh, kin allege police inaction on rape complaint

Police also arrested the third accused in the gang-rape case and the second accused in the abetment to suicide case on Saturday. Earlier, two accused in gang-rape case and one of the two accused in the abetment to suicide case—including a woman-- were arrested on Friday. All the accused are from the victim’s village, said the SP.

Also Read: Bhopal newborn found dead with stab wounds, police say grandparents guilty

The 32-year-old Dalit woman was allegedly gang-raped on September 28. Her husband said, “We tried to lodge FIR first at Gotitoria police outpost and then at Chichli police station...but the police personnel lodged my elder brother and I in the lock-up and abused my wife.”

“Upset with the treatment of police and the rape, my wife ended her life,” he added.

The superintendent of police (SP) Ajay Singh said, “Police are interrogating the accused and further investigation is on.”

(With inputs from Monika Pandey)

LEGAL AID CHALLENGES : PAGES FROM PERSONAL EXPERIENCES

Oct 3, 2020

My part time helping hand (Su) at home (loosely called maid servant) gives me various occasions to think about my education and position. 

Loan issue

In the last week of Sept 2020 she came early so that she can go to a cooperative bank in Ghaziabad. She told me that three ladies are taking loans of 40000/ each (1.5lakh) together @ 12% per annum. For 40000 she was required to pay around 2000/month for 24 months. She had another loan from another bank where for Rs 50000 she was paying 2600/month for 25 months. From Banks she was paying Rs 1.20 for a rupee while the private person was charging Rs 5/ for a rupee. She also took a loan of Rs 50000/ from one private person (who does the business of loans at an exorbitant rate of interest). She was required to pay Rs 5000/month which was only interest. Such persons are very well established in our system in rural as well as  urban poors. They are often called Soodkhor. (Sood-interest, khor-one who eats). To avoid this exploitative loan, she tried for a cooperative bank. For this she had to go to Ghaziabad. Next day she could not come because the bank work was not completed. We are so dependent that one day off for such a helping hand makes our lives little haphazard.  

In Oct first week, 2020 on my inquiry she informed me that the loan jointly granted to three ladies  was cancelled because one of the ladies has withdrawn as she is getting a loan from another place. 

Now she is again back to square one. 

A loan at normal rate is her immediate need so that she can get her own house repaired. Her father in law has caused a partition and distributed property among heirs. Now joint property is partitioned. The property needs a wall of separation, separate kitchen, bathroom etc. 

 To support her is a part of legal aid. I talked to a friend in my society whose wife is a bank manager somewhere. He assured me to help and referred me to OBC bank (now PNB)bank near our residential society.  Su informed me that her husband has a bank account in the same bank. She will try. 

Let us see what happens. 

THE ATTACK ON JUDICIARY : A THREAT TO JUDICIAL INDEPENDENCE

Is the Supreme Court slow or biased on certain matters

Anurag Deep 

ILI, New Delhi

Introduction 

The attack on the judiciary is continuing. The attackers are certain respectable members of Bar and Bench, besides intellectuals, media people. Justice AP Shah is the leader of those who are making a consistent frontal assault on the judiciary. The center of the argument is that the Supreme court has failed to protect democratic values of secularism, fundamental rights, rule of law and independence of judiciary. With great respect to Justice AP Shah, who is among a few judges active in public domain, his views need reconsideration.  

Democracy is not something like a weak tree of bananas, which can be uprooted. Indian democracy is a banyan tree, it has deep roots, It will sustain, till Intellectuals, mainstream media and the SC do not bow before the govt like they did during emergency.

It has sustained emergency. A group of intelligentia is worried, and has expressed their apprehensions since the new regime has come to power in 2014. This is good for democracy but the basis of apprehension does not convince. The attack on the government has been intensified since 2019 when the government was reelected with an improved majority. This is understandable and also good for better performance of the government. However the attack on the Supreme court has also been intensified. This is a new trend and is neither convincing nor good for democracy. In the words of Dr Chandrachud, the SC is not the right forum for political score setting. Despite a few odds, the SC has played satisfactorily to save democratic values.  The whole trust deficit about the Supreme court owes its origin to certain things like--

1. The slow judiciary-  The slow progress SC on JK reorganisation and CAA cases.   

The slow progress is as per principle of judicial review. National security and foreign policy issues need deferential review and not liberal review. This difference needs to be kept in mind. Therefore the SC is rightly  slow in taking up these matters. 

2. State oriented decision-The decisions given in Rafale, Judge Loya, Ram Janambhoomi, Anuradha Bhaseen, PM cares fund case with Prashant Bhushan contempt as it's culmination were alleged to be suspicious. Doubts have been raised by certain distinguished intellectuals on these judgements. Some of them feel the judgement is not based on established principles, while some go to the extent of levelling charges of quid provision qua or bias. (Courts have rightly identified, in Rafael and Judge Loya case, that there was no prima facie evidence to order an SIT or register FIR. Judges like Joseph also supported the view that perception cannot be a ground for criminal action.  Dr Chandrachud, another well known judge held that the SC was misused for political scores by petitioners, who passed wild allegations, Ayodhya verdict was unanimous and seems to be written by Dr Chandrachud, again whose credentials are beyond an iota of doubt. Justice Nazir also favoured the verdict. Anuradha Bhaseen was written by Justice Rammana, the next CJ with judges agreeing. PM cares was by Justice Bhushan, again unanimous, and was well written. On PB contempt we have already discussed recently, that he was taking free speech for granted, was a petitioner in many cases and the whole tweets were a type of threatening the judges who may be engaged in the decision making process supported by CB precedents. )

3. Judicial in-activism- The non intervention of the Supreme court in Lock down cases especially migrant workers was one issue of dissatisfaction. In demonetisation also the Supreme court remained inactive. The argument is that the Supreme court must have demonstrated an active role in these developments.    

Such arguments show scant disregard to separation of power. They amount to governance by judiciary. During lock down the SC interfered in cases which were purely their domain like extension of limitation periods in the courts, release of prisoners, essential matters through virtual hearing. However, in cases which were in the executive domain and policy matters, initial inhibition by the judiciary was very much understandable. One cannot expect the judiciary to govern the country when an unpredictable, unprecedented, unchecked domain knocks the door. Wait and watch is the best policy for a judiciary which has limited expertise, resources and restricted democratic mandate.

4. Quid Pro qua-There are allegations that the government is rewarding judges for State oriented interpretation and judicial legitimacy. They  link Justice Gogoi, former CJI’s  nomination as Rajya sabha membership, as an example. This is a political decision but really a matter of concern that some Supreme court judges are offered positions by the Government, and the Modi government is no exception. The politicians of all parties need to sit together and pass resolutions. The parties in power in different States should also pass such resolutions and regulate instances of the judges of Supreme court and High court getting benefits from the government. The independence of the judiciary needs to be protected from these practices. The Supreme court can itself pass a resolution. 

At the same time the judges are among the best legal brains. Many of them sacrifice their lucrative practice, public exposures and family pleasures. Their intellectual services ought to be used for the country. They are best suited for legal reform proposals besides other assignments. Some windows should be open for them that need serious thinking. The Constituent assembly debates also suggest that the talent of judges should be used in some way post retirement. The judges retire at the age of 62 (high court ) or 65(Supreme court). Justice Ruth Bader Ginsburg of the US SC died at the age of 87 on Sept 18, 2020. She remained in the office till death. This has many benefits. One, the charges of favouring the government for post retirement benefits can not be raised in the USA. Two, the best legal brain is available for the country to adjudicate matters. Three, the chances of inconsistency in the judicial pronouncements are low because less number of judges spent decades on the bench.  The only risk is that the judges in the USA are political appointees. The politicians decide everything. The judges are supposed to be supporters of the ideology of either liberal Democrats (like Obama) or conservative Republicans (like Trump). The President nominates and the Senate (Upper house) confirms. If a less competent judge or highly biased judge is appointed solely because of his good terms with the President, he can damage the institution for a longer period. In India the retirement age of a judge should be modified to 70 years for both the High court and the Supreme court.    

VILIFICATION OF JUSTICE ARUN MISHRA (RTD) : A TEXTBOOK CASE OF ABUSE OF FREE SPEECH

Judge is known in future

Justice Arun Mishra retired from the Supreme Court of India on Sept 2, 2020. Judges retire but the judgements whether right or wrong live with them. The judgements are criticised or appreciated. They are followed or overruled in future. This is a part of the judicial process. Judges are also targeted sometime. In the 1970s, Justice VR K Iyer, when joined the bench, was criticised because of his expressed affiliation with the left party and the way he was selected by the regime. Many noted lawyers wrote against his appointemnt.  He proved to be one of the best judge in history.  AN Ray, CJ was criticised for his proximity with Indira Gandhi regime and for his elevation as CJ. He did not earn honour in the legal fraternity. In 1976 the four judges of the SC who constituted majority in ADM Jabalpur case were condemned in judicial history, though all four became CJ of India. HR Khanna, with lone dissent was criticised by the Congress regime  but history not only in India but in the world treats him as a hero of the voice of democracy. Therefore, a judge and his judgement is best known in future. 

Criticism of judgement is essential but attack on judge is injurious

Criticism of a judgement or some time criticism of the approach of a judge is welcome. Indeed it is an essential tool of check and balance in democracy. But the words and sentences used for such criticism ought to be decent and must not lose the minimum sense of dignity, at least in the intellectual discourse. The desperations of criticism does not mean to avoid the principles of criticism. While a judgemental statement is easy to make, to write something relevant based on evidence, arguments, and precedents is always a tough task. The attack on the Judges of the SC, especially on Justice Arun Mishra needs to be appreciated in this light.

Hate campaign against the SC judges and Justice Arun Mishra

 The life of judges is very difficult. After retirement also they are haunted. This is natural because of the post they hold. But attack ought to be on the  judgements delivered. One can write why the judgement is wrong on the touchstone of P5(principles of law, Provisions of law, Precedents of law, Policy of law and Professional opinion on law). However, attack based on hypothetical assumptions on the attitude and approach of  a judge is irrational.  Justice Arun Mishra has been in the eye of storm since the last couple of years. He is hated by a group of intellectuals. The hate reached its nadir during Prashant Bhushan contempt judgement, (Aug 14, 2020). Even after the retirement of Arun Mishra, J.  a group of disgruntled  intellectuals have not stopped spitting in foul language.

Attack on Judges-Abuse of free speech

A very odd piece is published about his personality as a judge which sounds very bad in taste. You would recall that Justice Arun Mishra also delivered a judgement which led to the demolition of high rise towers in Maradu, Kochi because they were a serious threat to the environment. (https://www.thehindu.com/news/national/kerala/maradu-flats-demolition-decision-a-painful-duty-says-sc/article30561533.ece)  

One journalist has written a comment on Sept 15, 2020 (https://www.theleaflet.in/letter-to-justice-mishra-constitution-not-conscience/#) which is prima facie contemptuous. (you would recall that when the tweets of Prashant Bhushan came, my immediate reaction was that it is contemptuous). Such writings are clear abuse of free speech.

Contemptuous intention

While every writing must be evaluated by the test of the intention in toto, and a few sentences cannot be basis for inferring violation of law. Pl see the words used by the commentator which is centred against the Maradu demolition judgement (2018)--   

1.      You satisfy your ego

2.      your arrogance

3.      your provident fund etc should be attached to meet a part of the cost  

4.      your abhorrent act

5.      you gave your like Tughluq like order! … who had a greater common sense for he changed his decision

6.      Arrogance has been defined as knowledge without wisdom.

7.      You caused a social turmoil in Kerala by dispensing justice totally in favour of the Orthodox faction

8.      they allowed a character like you to decide the case

9.      I have noticed that the most arrogant persons are the most subservient to their masters. You were no exception….

    10.  You may become a governor or a minister or a      chairman of some authority which will fetch you a     lot of power and pelf (--Money, especially when gained in a dishonest or dishonourable way.)

Concluding remarks :

Such attacks in this manner is a disservice to intellectual discourse. While courageous and constructive criticism of judiciary is a virtue, we do need to maintain the minimum ethics in our expressions. Many best brain in the Courts do not wish to join the judiciary. Some join with great hope and deep sense of service to the nation. Judges are and have to be open to all sort of harsh criticism. But they are also human being. Use of abusive language, motivated satire, inappropriate comparison, targeting for judgement which went against petitioners, use of social media against them, publishing something on online media to exert frustration is misuse of free speech. Just because the Courts do not punish the high profile abusers of free speech, the judiciary ought not to be taken for granted. Such expressions have chances to intimidate judges and have potential to cause chilling effect not on judgement writings but also on others. This discourages those lawyers who are willing to join the bench. Once a judge delivers a judgement, it generally disappoints one party and make other party happy. The party disappointed will always allege unfairness, injustice, arrogance, ego problem, abhorrence, ideological inclination, and label the judicial order as tughlaqi farman. In this way you are killing the morale of the generation of lawyers and judges also who wish to join judiciary. Such approach is destructive and against the independence of judiciary.