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A Roar of a Lion- Right to free speech, Right to Dissent, Sedition and Majoritarianism

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Justice Deepak Gupta's Fearless Speech 2

Of Roaring Lions and Squeaking Mice!

Francis Bacon had once described the judges as ‘Lions under the throne.”However decades later in the famous Second World War case of Liversidge v Anderson, where Lord Atkin delivered his powerful dissenting speech, he commented on the arguments of the lawyers and stated that this level of reasoning would have been acceptable to the Court of Kings Bench in the time of Charles I (a monarchy) but not in a democracy, sadly this reasoning was accepted by all of his brother judges. The subjective interpretation adopted by his brother judges who were then pleasing to politicians provoked a letter to Lord Atkin from Mr Justice Wintringham Stable. The letter expressed approval of Lord Atkin’s dissent, and then added:

“I venture to think the decision of the House of Lords has reduced the stature of the judiciary, with consequences that the nation will one day bitterly regret. Bacon, I think, said the judges were the Lions under the throne, but the House of Lords has reduced us to mice squeaking under a chair.

The time is right to celebrate the courage shown by one of our very own, Justice Deepak Gupta, who has roared like a lion in times where just speaking against the ruling Governments would amount to sounding of the death knell for some. In times where we have judgments after judgments trying to bypass the constitution in novel ways so that the mighty and the powerful may not get offended (remember the dissent of Justice Chanderchud where he talks of a fraud played on the constitution and present grant of adjournments in habeas corpus petitions in SC), in times where police is more active in catching hold of people who have written something on their Facebook wall or WhatsApp (under an extinct provision of Section 66A) rather than looking for rapists and murderers, in times where a lawyer if he knows the politician he becomes a judge or an advocate general, in times where dissatisfaction with the government will brand you as an anti-national, in times where freedom of speech is being attacked across the country and fight for human rights and civil liberties is undermined in every nook and corner, a sitting judge of the Supreme Court, and our very own, ‘son of the soil’ has had the spine to publically say THE TIMELESS TRUTH of our democracy.

The Hon’ble Judge expressed himself On September 7. The following are edited excerpts of his lecture.

Right to Dissent

There cannot be any democratic polity where the citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner which they feel like.

The right to freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree.

Thus, the right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief.

Every society has its own rules and over some time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with the well-accepted norms of society. If everybody follows the well-trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found. If a person does not ask questions and does not raise issues questioning age-old systems, no new systems would develop and the horizons of the mind will not expand.

Whether Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and religious practices would not have been established, if they had quietly submitted to the views of their forefathers and not questioned the existing religious practices, beliefs and rituals.

In a secular country, every belief does not have to be religious. Even atheists enjoy equal rights under the Constitution. Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution.

The judgment of HR Khanna, J. in A.D.M. Jabalpur case, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible Judge. Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill will. First and foremost part of the duty is to do one’s duty without fear.

Law of Sedition

It was enacted at a time when India was ruled by a foreign imperialist colonizing power. The British brooked no opposition and did not want to listen to any criticism. Their sole aim was to deprive the people of this country of their rights including the right to express their views.

Interestingly, though sedition was an offence in the first draft of the Indian Penal Code (IPC) drafted by Lord Macaulay, somehow this did not find its way into the IPC when it was enacted in the year 1860. The IPC was amended in the year 1898 when Section 124A was introduced.

When Section 124A was first introduced, we were told that this provision was not to curb legitimate dissent but was to be used only when the writer or the speaker directly or indirectly suggested or intended to produce the use of force.

Interestingly, another reason given was that there was a Wahabi conspiracy by a man who had preached Jihad or holy war against Christians in India and therefore the need to introduce such a provision.

Though Section 124A was inserted for fear of Muslim preachers advocating Jihad or religious war, it was initially used against Hindu leaders. The first such case was of Jogendera Chunder Bose wherein in a newspaper called Bangobasi, the Editor objected to the English rulers raising the age of consent of sexual intercourse for Indian girls from 10 to 12 years.

Subsequently, the British used the law of sedition to curb any demand for independence said Gupta citing the case of Queen-Empress v. Bal Gangadhar Tilak.

I would also like to refer to the Father of the Nation Mahatma Gandhi, who in this city of Ahmedabad was charged with sedition. Appearing before Sessions Judge Broomfield, Mahatma Gandhi while dealing with the word ‘disaffection’ had this to say: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

I think this brilliantly sums up what I want to say today that mere criticism without incitement to violence would not amount to sedition. However, the Mahatma was sentenced to undergo imprisonment for 6 years.

You cannot force people to have affection for the government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.

However, in present times there is no healthy discussion but only shouting and slanging matches, lamented Justice Gupta. If one does not agree with another, that person becomes an anti-nationalist.

There is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, and anti-nationalist.

The constitutional validity of Section 124A has to be read in the context of Article 19 of the Constitution of India. Thus, advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted.

Sedition can arise only against a government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the government….Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony.

Police cannot deal with law and order problems but have time for sedition

Majoritarianism Can’t be Law

During the dark days of Emergency, an attempt was made by one party President to equate his leader with the country. I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual.

A majority government does not mean that minority voices should not be heard. Majoritarianism cannot be the law. Even the minority has the right to express its views. We must also remember that in India we follow the first past the post principle. Besides, he also stated that even Governments which come in with a huge majority do not get 50% of the votes. Therefore, though they are entitled to govern or be called as the majority, it cannot be said that they represent the voice of all the people.

The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under POCSO carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or Section 153A or implementing the provisions of Section 66A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity.

It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country. In a country which professes to live by rule of law, this cannot be permitted.

Thus, the law of sedition is more often abused and misused and the people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from the court, he has suffered the ignominy of being sent to jail. How the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition. Sedition is a crime only when there is an incitement to violence or public disorder.

But the law as laid down in Kedar Nath Singh’s case regarding sedition is not being followed.

‘Right to Criticise Government’

I think our country, our Constitution and our national emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. You may force or compel a person to stand while the National Anthem is being sung, but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person’s mind or in his heart?

In Chhattisgarh, a 53 years old man was arrested on charges of sedition for allegedly spreading rumours over social media about power cuts in the State. It was said that this was done to tarnish the image of the then Government running the State. The charge was absurd and again highlights the misuse of power. In Manipur, a journalist made a vituperative attack on the Chief Minister of the State and used unparliamentary language against the Prime Minister of the country. The language was intemperate and uncalled for but this was not a case of sedition.

Criticism of government by itself cannot amount to sedition. India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the Government. Criticism of the Government by itself cannot amount to sedition. In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives.

The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view. Criticism of the policies of the government is not sedition unless there is a call for public disorder or incitement to violence. The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. In a free country, people have the right to express their views.

Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony.

Judiciary Not Above Criticism

In fact, I welcome criticism of the judiciary because only if there is criticism, will there be an improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected.

Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be.

Section 66A of the IT Act, which put restrictions on the freedom of expression in an online space, is still being used by the lower judiciary and the police, even after being struck down in the Shreya Singhal case.

It does not speak well of the Indian judiciary that the magistrates are unaware of the law of land, and day in and day out, we hear of magistrates granting judicial custody or police remand in relation to such offences.

Cyber Bullying

The recent trends have instilled fear in people when it comes to expressing their opinions on criticising governments in power. A very important aspect of a democracy is that the citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but a mere expression of such views cannot be a crime and should not be held against the citizens.

No doubt, the views must be expressed in a civilised manner without inciting violence but a mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media. It is indeed sad that one of our celebrities had to withdraw from social media because he and his family members were trolled or threatened of dire consequences.

‘Nationalism is a Great Menace’

Gurudev Rabindra Nath Tagore had a view on nationalism, which is the anti-thesis of the view which many of us have. He, in fact, had not appreciated the Satyagrah movement. He, who wrote the National Anthem also held the view that ―nationalism is a great menace. I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindra Nath Tagore less an Indian, less a patriot than any of his contemporaries. Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today‘s world, if any person was to say ―nationalism is a great menaceǁ he may well be charged with sedition.

If this country is to progress not only in the field of commerce and industry but to progress in the field of human rights and be a shining example of an effective, vibrant democracy then the voice of the people can never be stifled. I can do no better than quote the words of Gurudev Rabindra Nath Tagore:

“Where the mind is without fear and the head is held high,

Where knowledge is free.

Where the world has not been broken up into fragments

By narrow domestic walls.

Where words come out from the depth of truth,

Where tireless striving stretches its arms towards perfection.

Where the clear stream of reason has not lost its way

Into the dreary deserts and of dead habit.

Where the mind is led forward by thee

Into ever-widening thought and action.

Into that heaven of freedom, my Father, let my country awake.”

(The post was first published in https://lawumbrella.wordpress.com/ )

 

Deven Khanna is a Lawyer, practicing at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School. For any queries related to the articles, he can be contacted at 7018469792 or at khannadeven@gmail.com. The personal blog is at https://lawumbrella.wordpress.com/

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With Neighboring States Going to Curfew, Himachal’s Tourism Sector Again Comes to a Halt

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curfew in himachal pradesh

Shimla-Himachal Pradesh Government may not have imposed restrictions on tourist movement, but the industry is facing the heat of second wave of coronavirus pandemic, which has now reached an alarming level.  Alarmed by massive spike in new cases and fatalities, Delhi yesterday imposed a curfew for six days. 

Further, with neighboring states including Panjab and Haryana going into a lockdown-like situation with the imposition of weekend curfews, tourist influx in Himachal Pradesh has dropped drastically, hitting the tourism industry in Himachal Pradesh. Last weekend the hotels claimed the occupancy was almost zero. The hoteliers and other stakeholders said the current situation is similar to what they faced during the lockdowns last year. After lockdowns spoiled the peak tourist season of the last year, the industry is hardly in a position to take another blow, hoteliers said. 

Conditions in Himachal are no better. In 19 days of April month alone, the state has recorded over 14,000 cases and the infection has claimed 155 lives, which is a massive surge in a very short duration. The rates of the surge in new cases and fatalities have also been recorded to be much higher as compared to the previous year.

The state government on Monday said that all educational institutions of the State would remain close till May 1 2021, and faculty of schools, colleges and universities wouldn’t have to come to duty.

The State Government also decided to put a complete ban on transfers of field functional staff.

Right after getting a nod from the Centre, the state government had also postponed the board and UG examinations.  Further, the HP Board of School Education is reportedly mulling over promoting class 10 students.

Chief Minister on Monday also said that the government could take more decisions to contain the spread in the meeting to be held on April 22. Some media reports said that the state government has hinted at the imposition of a curfew. While interacting to media yesterday, Chief Minister had also said that there are no plans for a complete lockdown, but if the situation continues to worsen, a curfew can be imposed. The Chief Minister had been maintaining that a lockdown would be the last resort as it would hurt the tourist influx, thus, cause economic damages.  

However, if the businessmen and hoteliers are to be believed, currently keeping the state open for tourism is hardly providing any relief. Moreover, they are not able to differentiate between a curfew and lockdown. They have begun to seek relief from the state government.  

On the other hand, in case the state decides to impose a curfew, the situation would get quite difficult for the poor, especially migrant workers, daily wagers, and small street-side vendors too.  

Further, fear of the collapse of health infrastructure haunts the state as the government is still in the phase of passing directions to the officers to enhance the bed capacity in the hospitals.  As per the statement given by Chief Minister on Monday, the state is yet to take steps to ensure the proper availability of oxygen and staff.

“Steps would be taken to ensure the proper availability of oxygen and medical staff in the State.  Bed capacity would be enhanced in Nerchowk Medical College, IGMC Shimla, Zonal Hospital Dharamshala, Tanda Medical College, Sunder Nagar Hospital and various other hospitals. Health workers would be posted in appropriate number for the care of Covid-19 patients,” Chief Minister said.

Chief Minister is being condemned for not completing make-shifts hospitals during the lockdown period along with strengthening the health services the way the it was required.

With the re-notification of Shimla’s DDU hospital- one of the busiest in the state- as a dedicated COVID care hospital, the OPDs has been closed. With the ongoing surge in new cases, more hospitals are likely to be re-notification as dedicated COVID care hospitals, and regular OPDs would be closed for other daily patients.

Moreover, for setting bad examples for the people, all political parties and their leaders, including Chief Minister Jairam Thakur, had faced severe criticism over blatant violation of COVID-19 protocols during campaign rallies for the elections to the Municipal Corporations. As a result, the public is hardly taking the second wave seriously and lowering their guards against the infections, which is only worsening the situation.

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HP Govt’s Guidelines Formed in Defiance of GoI and Court Directions Leave Disabled Students Troubled

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HP Govt Guidelines for written examination for persons with disabilities

Shimla-The rights of the disabled aren’t only a human rights issue, but it is also a developmental issue. Yet, in India, this section of society is struggling to get into the mainstream and compelled to go to courts to fight for their rights, including equal access to education. Himachal Pradesh is no different when it comes to adopting a comprehensive approach and modern technology to level the field for these students. Display of sensitivity is limited to showing sympathy and feeling sad for persons with disabilities that undermines their potentials and individual capacities to excel in life.

Owing to erroneous attitude towards persons with disabilities, children trying to access education often face neglect from governments that makes their already hard lives harder.  

Very recently, such gross negligence and defiance of court orders on the part of the Department of Social Justice and Empowerment, HP Government, came to light after an autistic student of the first year at Government Degree College, Kandaghat, couldn’t take his exams because the current guidelines of the state government make it a mandatory condition that the qualification of his scribe should be one step below the qualification of the candidate taking the examination.

Contrary to these “Guidelines for conducting written examinations for the Persons With Benchmark Disabilities” Hon’ble High Court of Delhi in Aditya Narayan Tiwari Vs. Union of India (dated 4.12.18) has clearly directed the Ministry of Social Justice & Empowerment, Government of India, to not fix any qualification and age criteria for scribes until the examining body doesn’t have its own panel of scribes. Following these orders in the said case (a writ petition), and Union Minister of Social Justice and Empowerment and the University Grants Commission had sissued fresh notifications with special clarification on the criteria of qualification and age on January 6, 2019, and February 26, 2019, respectively.  

Moreover, the principal of the college was not clear on the guidelines.

The college told the father of the candidate, Mr Vishal Gupta, that it had forwarded the matter to the University for further clarification, which did not come as quickly as it was supposed to. Himachal Watcher also spoke to Mr Gupta.

“My son is suffering autism (60%) and recently got admitted to BA Part-1 course at Government Degree College Kandaghat, Solan. The previous principal was very co-operative and had allowed a scribe after consulting the University. But now, ahead of my son’s house exams, I was asked to visit the college. The college asked me to provide a copy of the guidelines. I told the Principal that the college was supposed to have these guidelines already,” he told Himachal Watcher (HW).

“The Principal told me that the exams of my son will be put on hold and would be considered only after receiving a copy of the guidelines from the University. While all other classmates are taking examinations, my son couldn’t take two exams which begin from March 13, 2021,” he further told HW.

“I don’t blame the college for this. This entire issue and inconvenience stem out of a grieve negligence on the part of the HP University as it did not circulate directions of the UGC in this regard to the colleges,” Mr Gupta said.  

However, when HW took up the issue with the University authority, it turned out the varsity was not at fault either. The varsity was yet to adopt the new guidelines issued by the Department of Social Justice and Empowerment in 2020, hence, previous guidelines (2013) were already applicable. Therefore, the varsity wasn’t supposed to issue any new notification. 

Mr Gupta contacted Ajai Shrivastava, Chairman of Umang Foundation (NGO) and Expert Member, HP State Advisory Board on Disability, HPU, and brought the matter to his attention.

It’s pertinent to mention that Mr Shrivastava had been fighting vigorously for the rights of the disabled in Himachal Pradesh, especially for their right to equal access to education at all levels for over a decade now. It was on his PIL that the State High Court had given a landmark judgement directing the Himachal Pradesh Government to provide free education to the students with disabilities up to the university level. 

Also Read: HP High Court’s landmark judgment brings huge relief to children with disabilities

The court had also enhanced the amount of their scholarship and awarded Rs. one lac to the Umang Foundation to be spent for the welfare of the disabled children.

Mr Shrivastava, on being contacted by Mr Gupta, immediately wrote to the Chief Minister requesting him to make the Social Justice and Empowerment Department to withdraw its guidelines which are illegal as these did not comply with the court decision and UGC notification. He also held a press conference at the Press Club, Shimla on March 14, 2021.

“Addl. Chief Secretary (SJ&E) to the Govt. of HP has issued and further circulated the “Guidelines for conducting written examinations for persons with benchmark Disabilities 2020” for implementation on 16th December 2020,” he wrote in the letter.

“In fact, the above-mentioned guidelines have been issued by the HP Govt. in violation of the orders of Hon’ble High Court of Delhi in Aditya Narayan Tiwari Vs. Union of India, dated 4.12.18. In this litigation, Ministry of Social Justice and empowerment, GOI; Ministry of Education, GOI, and UGC etc. were respondents,” he further wrote.

Mr Shrivastava clarified that the Ministry of Social Justice and Empowerment on dated 1.1.2019 issued an Office Memorandum for the “Compliance of orders of Hon’ble High Court of Delhi in the matter of Aditya Narayan Tiwari Vs. Union of India.”

He also clarified that the UGC dated 26.2.2019 wrote to all Registrars of Universities across the country for compliance with the order of the Hon’ble High Court for implementation. The Ministry of S.J. & E. and the UGC, both have reproduced the order of Hon’ble High Court of Delhi as under:

“Till the panel of scribes is formed if any examination is conducted by any of the departments wherein the petitioner and similarly situated persons appear in the exam. the guidelines dated 29.8.2018 shall not be applicable, however, the candidate shall appear in terms of guidelines dated 26.2.2013. ”

Mr Shrivastva further went on to say that it very unfortunate that despite the above, the Department of Social Justice and Empowerment, Himachal Pradesh ignored the directions of the Union Ministry of Social Justice and Empowerment and issued its guidelines.

“It’s gross negligence on the part of the state government. And, the Department of Higher Education whose examinations are governed by UGC through Himachal Pradesh University, has already implemented the said illegal guidelines. HP State, he said.

Further, he wrote that the Education Board has also implemented it.

Mr Shrivastva asked the Chief Minister to keep in view the directions of The Ministry of S.J. & E. and the UGC, withdraw these guidelines of the State Government issued on dated 16.12.2020 in the interest of justice to persons with benchmark disabilities.

However, the Chief Minister Office seems to have its priorities.

Currently, one of the topmost priority of the current government led by Chief Minister Jairam Thakur appears to be the preparation for the Swarnim Himachal” celebrations and Swarnim Himachal Rath Yatra. Chief Minister is personally looking into preparations and has even constituted a High Power Committee regarding preparation for the said celebration. As a matter of fact, yesterday, the Chief Minister held a review meeting for the same at Peterhof, Shimla. Another priority,  which huge billboards placed across the state indicate, is to advertise the “Swarnim Himachal” celebration.

The state of these students is a spoiler for the “Swarnim Himachal” celebration as it contradicts claims of achieving milestones in developmental works. 

It should be kept in mind that fighting their battle in courts for their rights wasn’t enough to make the state government attend to this section of students. Further, the deliberate contemptuous approach of the bureaucracy is also clearly visible.

Before jumping to some references to the government’s grieve world of neglect for the disabled, try to realize the sensitivity of the matter with comments provided by Deven Khanna, a practising advocate at the HP High Court.

“It is necessary that an explicit, unequivocal and comprehensive procedural mechanism are constituted for the benefit and betterment of disability rights. It is pertinent to fathom that human rights of those living with disability cannot be fought for and secured in a vacuum,” Deven says.

It is apparent that the issue of disability is linked with several other social, economic and political aspects including those of chronic poverty, gender inequality, mal-administration and political victimization. This must be eradicated to create the ‘disability right’ an actual reality. As far as planning and policy-making process about lives and complete recognition and implementation of the human rights of the disabled and other associated rights are concerned, there must be active inclusion of the disabled people in the same process, he says.

India, one of the first few signatories to the United Nations Convention on the Rights of Person with Disabilities, has not complied with the provisions of the same, he says.

The Constitution of India, under Article 41, imposes a duty on the State to generate necessary and effective provisions for securing the right to work, right to education, and to public assistance in cases of unemployment, old age, sickness and disablement.

Laws Relating to Disability:

  1. Constitution of India – Article 19, 21, 41 and 226
  2. The Rights of Persons with Disabilities Act, 2016.
  3. UNCRPD Article 9
  4. Rehabilitation Council of India Act, 1992
  5. The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, 1999
  6. Rights of Persons with Disabilities Act, 2016
  7. Mental Health Care Act, 2017

“The State must conduct a discussion of human rights for the persons with disabilities in-depth, so that benefit can be availed out of it. As human beings along with access to and realization of all fundamental and elementary rights, persons living with disabilities require a safe, secure, convenient, beneficial and accessible environment which respects their human dignity,” Devens adds.

Now, consider the following references:

In May 2016, Mr Shrivastava had highlighted how the government was violating orders of the High Court by not providing library facility to the blind and deaf students in the special school at Dhalli. Blind students needed digital library apart from Braille books.

Also Read: Despite HC orders, Himachal’s blind & deaf students denied hostel, library facility at special school Dhalli: NGO  

There was no science laboratory in the school. The dead line fixed by High Court to appoint new teachers had also expired on 3rd December 2015, he had alleged. 

Also Read: HPU’s Disabled Students Denied Reservation and Basic Facilities Despite Court Orders

The government had completely failed to implement the High Court orders that had given relief to the disabled children studying in special schools at Sundernagar and Dhalli, Shimla on the PIL filed by Ajai Srivastava.

Also Read: Despite High Court orders, disabled students in Himachal deprived of rights by Govt.

In September 2016, the Chief Commissioner for Persons with Disabilities (CCPD) from the Centre was visiting Himachal Pradesh to take stock of the status of facilities for disabled persons, Mr Shrivastava had alleged that the state government of portraying a misleading picture of the disability sector. He had submitted to the CCPD  alleging the government had not implemented the CCPD’s examination guidelines for the blind persons despite the High Court’s order on his PIL. He had apprised the CCPD that special school for blind and deaf girls at Sundernagar and a special school for boys at Dhalli, Shimla were poorly managed and lack basic amenities.

Also Read: Now HP Govt. misleading CCPD on disability issue after blatantly violating High Court orders

In a separate case, Indu Kumari, a poverty-stricken girl from the backward region of Chamba district, in her letter on July 21, 2017, told the Chief Justice that she completed her BA from Rajkiya Kanya Manha Vidyalaya College, Shimla.

However, she was denied admission in MA (Political Science) by HP University despite a provision of a five percent quota for disabled candidates under the Rights of Persons with Disabilities Act, 2016.

Not just Indu, but several other students were also told that the provisions of the new Act were not implemented in the university. These students had to return disappointed.

However, the High Court had come to the rescue of these students by considering the letter as a Public Interest Litigation (PIL).

In August 2017, as a tight slap on the face of Himachal Pradesh University and the State Government, the State High Court had asked them to explain reasons for not ensuring a five percent quota in higher education institutes for disabled students.

Also Read: HP High Court pulls up Govt & HPU over denial of 5% quota to disabled students

Earlier, the division bench comprising Justices Rajiv Sharma and Tarlok Singh Chauhan has passed a judgment on 4th June on the PIL filed by Umang Foundation (No. 30 / 2011). The bench had directed the Dr. YS Parmar University of Horticulture and Forestry (UHF) Solan, Himachal Pradesh University, Shimla and CSK Agriculture University, Palampur to provide free education to disabled children within a period of six weeks. But despite court orders, the UHF Nuani had denied doing so and Ajai Shrivastava had to write to the Registrar of Dr YS Parmar University of Horticulture and Forestry, warning that if the university does not provide free education as per the court’s order, a contempt petition will be filed.

Also Read: HP University of Horticulture & Forestry says no to disable students despite HC orders

In September 2017, the Disabled Student Association had alleged the Department of Social Justice and Empowerment of withholding scholarships of the thousands of disables studying at the government educational institutes.

When these students approached the Directorate of Scheduled Cast, OBC, and Minority Affairs; they were simply told that there was no budget for their scholarship. Pertinent to mention here that the majority of these disables belong to economically weaker sections of the society and come to the varsity from remote regions in hope of higher education.

Also Read: Thousands of Himachal’s disabled denied scholarship, No budget, says Govt: DSA

In October 2017, The Disabled Students Association (DSA) wrote to the Governor of Himachal Pradesh Acharya Devvrat and urged him to immediately demanding the implementation of reservation of seats in MPhil and PhD under the Rights of Persons with Disability Act, 2016. 

However, it did not bring any relief to them.

Also Read: HPU’s disabled students demand stay on M.Phil, Ph.D entrance exam results

Further, this indifference toward disabled students is apparent from the fact that the accessible library for the disabled students of Himachal Pradesh University was inaugurated by Chief Minister Jairam Thakur on July 22, 2019, didn’t have basic facilities like a washroom and students, especially visually impaired girls faced huge inconvenience. For a toilet, the Disabled Students and Youth Association (DSYA), Himachal Pradesh, had to submit a memorandum to the Governor and Chancellor, Bandaru Dattatreya, on December 13, 2019. 

It was not surprising that the Chief Minister inaugurated a library facility without basic facilities because it was merely a formality performed in response to an order of the State High Court passed in a PIL filed by a disabled student, Banita Rana, in 2014.

Also Read: HPU’s Disabled Students Denied Reservation and Basic Facilities Despite Court Orders

In March 2020, visually impaired and other disabled candidates, who were qualified for teaching posts, had to approach the Himachal Pradesh High Court complaining that the government is violating the Rights of Persons with Disabilities Act, 2017 by not implementing reservation to visually impaired and other disabled candidates, who are qualified for teaching posts, in schools, polytechnics and colleges.

Also Read: HP Govt Ignoring Rights of Disabled, No Reservation in Teaching Posts Despite Provision: DSYA

Considering the way disabled students were made to fight for their right to equal access to education and even the most basic facilities, previous and current governments laid more focus on their political interests than attending to the hardships of these children.  

Unfortunately, while the previous Congress Government failed these disabled children, the current BJP Government went one step ahead in making their lives harder by passing new Guidelines of its own in 2020 which contradicts court orders and directions of the Union Ministry of Social Justice and Empowerment.

Also Read: Extremity of HP Govt.’s corruption – Swallows share of deaf & blind students

The topmost priority, not only of the current government but also previous ones, is to ensure retention of power through politics than attending to very sensitive and urgent matters, like making education equally accessible to disabled children of the state.  

Regarding Court Orders in Writ Petitions Filed in 2013 and 2018 Over Availing Scribe for Written Examinations

On a Writ Petition filed in the Delhi High Court (Subhash Chandra Vashishth vs Institute of Chartered Accountants of India) in 2012, the Court in its judgement given on 11, 2013 had directed the Government of India “to abolish current restrictions/conditions imposed on scribes in terms of qualifications.”

Later, in Aditya Narayan Tiwari Vs. Union of India case dated 4.12.18,  the Delhi high court clarified on revised guidelines and made it clear that “Till the panel of scribes is formed if any examination is conducted by any of the departments wherein the petitioner and similarly situated persons appear in the exam. the guidelines dated 29.8.2018 shall not be applicable, however, the candidate shall appear in terms of guidelines dated 26.2.2013. ”

But no such panel was formed and the responsibility of availing scribe still lies on the candidate.  

Based on a notification issued from the Ministry of Social Justice and Welfare in January 2019, in February 2019 UGC issued a notification to all concerned Universities directing them to communicate the same to all colleges/institutes affiliated with it.

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Here is What CM Jairam and MLA Dhawala Said While Proposing Legalization of Cannabis (Hemp) Cultivation in Himachal

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Cm jairam on cannabis legalization at budget session

Shimla-As usual, while the Budget presented by the Himachal Pradesh Government for the 2021-22 financial year is being hailed by legislators and leaders of Bharatiya Janata Party, the oppositions are terming it an eye-wash and a directionless budget. As usual, the budget speech contains a plethora of promises including filling up about 30,000 functional posts and constructing 12,000 news houses for the poor.

However, there is one proposal that deserves appreciation in particular. Not only it would open more doors of employment in rural areas, but could also prove to be a crucial decision in revolutionizing the state economy. A potential source of income that remained untapped.

It’s about permitting commercial hemp cultivation in the state. In his budget speech, Chief Minister Jairam Thakur told the House that the State Government would frame a policy to legalize hemp cultivation.

“Commercial hemp cultivation is permitted & regulated in many countries and in some States in India. This creates investment and employment opportunities. State Government proposes to frame a policy to permit commercial hemp cultivation with the proper regulatory framework,” he said during his budget speech on March 6, 2021.

The State High Court had already given its nod and put the ball in State Government’s court by stating that it has no objection over permitting the cultivation of industrial and medicinal hemp. Himachal Watcher had covered the issue when it was in court.

It’s pertinent to mention here that Hemp is one of the varieties of Cannabis sativa, which cannot be used as a psychoactive substance to get high. In simple words, it would not get you high even if you try to do so by smoking it because it contains a negligible amount (.1%) of the psychoactive substance Tetrahydrocannabinol (THC).

Also Read: Misconceptions keep Himachal from making fortune on ‘green gold’ and eradicate charas mafia

On March 5, 2021, Ramesh Chand Dhawala, MLA of Jawalamukhi constituency, introduced a resolution in the Budget Session proposing the legalization of the cultivation of hemp.  He had argued over the benefits of doing so at a length. Chief Minister Jairam Thakur had also agreed that the state should frame a policy and undertake the cultivation of cannabis in a controlled manner. Chief Minister had also said that cannabis is has a strong association with the culture of the state. He admitted that traditionally fibre obtained from cannabis plants, which is known as “Shail” was used to make ropes, shoes and matts. He mentioned how extracting cannabis oil to use it in winters with food or as body lotion was common practice. Further, these seeds were used to be a part of the famous Himachali cuisine “Siddu”, he mentioned.

“American Cancer Research Association has found that cannabis is effective in slowing down the development of brain tumour and lung and breast cancer,” he said in the House.

Further, he mentioned that the Commission on Narcotic Drugs (CND) has remove cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs — where it was listed alongside specific deadly, addictive opioids, including heroin, recognized as having little to no therapeutic purposes.

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Dhawala, prior to Chief Minister’s reply, told the house that the NDPS Act was introduced to check substance abuse, not to prevent the manufacturing of clothes and medicine. Traditionally, the cannabis plant was used locally to create clothing. Currently, he said, 70-80 percent of prisoners are booked under the NDPS Act. Record cases under NDPS have come to light in Kullu and Chamba for the illegal cultivation of cannabis.

Also Read: Industrial hemp can revolutionize Himachal’s economy, end war on drugs, says petition seeking legalization

These include poor people who remain behind bars for decades as trials take a huge amount of time. The use of cannabis as a drug is rising among youth who are getting addicted to it. Legalizing hemp cultivation can solve this problem along with opening new doors for employment, he told the House.

In higher hills, the rural people can harness only one crop as the land remains covered in a thick blanket of snow for six months. Which pushes these people to get indulged in illegal cultivation of cannabis and paddling of smokable substances extracted from cannabis plants, like charas and hashish, for livelihood.

While those who are caught with a quantity more than 100 grams and kingpins must be acted upon, there are youngsters who are booked for possessing even small quantities, he said.

Further, emphasizing on commercial use of hemp, he told the house that a large number of goods that can be manufactured from hemp in addition to cannabis oil, which is in huge demand in the international market for its medicinal use, can bring fortunes to the state and the rural population deprived of any other sources of income.

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He referred to other states like Bihar, Madhya Pradesh, Uttarakhand etc. where the governments have framed policies to permit the cultivation of commercial hemp. He said industries have been established which uses this cultivated hemp, especially its oil for the manufacture of medicines.

Further, not only goods like cloth, shoes, furniture, ropes etc. but bricks can be manufactured by using waste material. These bricks are highly durable when combined with lime. He said these bricks have more strength, are light-weight and are waterproof. In Island, Mark and Spencer’s company constructed its showroom completely using these bricks and world-renowned car manufactures like Ford are also using hemp for manufacturing of car accessories, he said.

Also Read: Two Himachal Youngsters to Launch State’s First Hemp Start-up: An Online Market for Green Products

Dhwala also said that legalizing hemp cultivation can also revolutionize the clothing industry. In India, mostly cotton is used in the clothing industry. Cultivation of cotton requires double the land and four times the water required for the cultivation of hemp. Also, hemp can be harnessed within three to four months as compared to cotton which takes about nine months, he said.

He also referred to the mention of cannabis as a medicine in Vedas.  All parts of the cannabis plant – root, stem, leaves, fruit, seeds- are usable for various purposes. Ayurveda, in which cannabis is called ‘Vijaya’, also recommend the use of cannabis for cancer, neurological diseases, bacterial infection etc. and modern science also verify it, he said. The United States of America is using cannabis-based medicines for the treatment of diseases like Parkinson’s, Autism, Alzheimerinn ol, and others related to dementia. Other foreign countries are also using it as a medicine to treat heart-blockage, he told the House. Further, it is also used to provide relief to people suffering from disorders like migraine and stress.

Back in old days, cannabis oil was used as a pain reliever to mothers during delivery, he added.

The cannabis plant is the only plant that has up to 80 percent polyunsaturated fatty acids and a high quantity of nutrients Omega-3, Omega- and Omega-9. Other than cannabis, only fish contains these nutrients.

India’s neighbouring country Nepal has realized the potential of this plant and has formed a separate ministry that looks into the cultivation of hemp.

“It’s a matter of surprise that clothing, bags, shoes etc. made of hemp in Nepal are sold at high prices in Dharamshala, McLeodganj, and Manali,” he said.

Instead of wasting time and energy of the police force in uprooting cannabis plants and wasting them, the state government should permit its cultivation for industrial and medicinal use under Section 8, 10 and 14 of the NDPS Act, like it has been permitted in Uttarakhand, M.P, Orissa and some North Eastern States.

Scientists have confirmed that cannabis can be used for the treatment of cancer patients and to stimulate appetite in AIDS patients.

Clothing made of hemp fibre is known for its anti-bacterial features, which is why countries like Canada has patented undergarments made of hemp fibre, he said.
cannabis cultivation in himachal

He further argued that currently, the wood used for the manufacture of furniture takes years before it’s ready for use, while a hemp plant takes only four to five months. Comparatively cheaper furniture could be prepared from this plant, which would not only offer an alternate source of income and employment but also prevent deforestation.

Though the United Nations had prohibited cannabis cultivation from 1985 onwards, in 2020, the same organization has lifted the restriction on its cultivation considering its immensely beneficial medicinal use, he told the House.

This plant is in high demand in the international pharmaceutical market and this demand is only growing.

The ban on cultivation relates to using cannabis as a psychoactive drug, which is only one of its 400 characteristics. There are two sub-species of cannabis – one which has a high amount of THC and others which have a negligible amount of THC (.3%), he said. In Uttarakhand, the type of plant which is being cultivated possess a negligible amount of THC and, thus, can’t be used as a psychoactive substance, he said.

Though Himachal Pradesh is known for apple production, the fact is that the cultivation of apple is limited to only Kullu, Shimla, Kinnaur, Bharmaur etc.

He also compared it to alcohol in terms of hazards.

“People die after consuming alcohol, but I never heard that anyone ever died after consuming cannabis, “he argued.

Citing another example to control the use of cannabis as a psychoactive substance, Dhawala said,

“People in a village that doesn’t have a legal liquor vendor start producing and selling home-made liquor. But if a legal liquor shop is allowed, it works as a deterrent for illegal production and sale.”

“Similarly, I believe that cultivation of cannabis should also be legalized so that not only people could get employment but also refrain from indulging in peddling, he said.

He also referred to the dependence of the State on debt taken from the Centre and said legalizing cannabis cultivation can help solve this problem.

“When the laws are more dangerous than the drug itself then a fight for civil liberties becomes necessary. Stopping research and knowledge is not only unconstitutional but a crime against evolution, Deven Khanna, a practising advocate at Himachal Pradesh and the man behind this initiative to transform the state’s economy.

Deven has been working with policymakers and arguing his petition to legalize the cultivation of industrial hemp in the State High Court for the last four years. It was on his petition that the court had given a go-ahead to the government. Not only the court, but Deven had also been collaborating with stakeholders in the hemp industry/villagers and doctors.

“The purpose of my petition was to open the market for non-narcotic/medical and industrial use of Hemp so that the locals have an alternative source of income, patients have access to safer natural medicines and for making available biodegradable /organic alternatives to plastic and construction material in the state,” Deven told Himachal Watcher.

“The foremost objective was empowerment and “creation of choice” for the local inhabitants who presently are being lured into illegal activities due to lack of avenues for making a decent livelihood. The only way to prevent people from doing illegal drug trade is sadly not deterrence which everyone is really fond of, its actually giving them an alternative choice to make a decent life,” he added.

“People are deterred by hunger more than jail. If this plant is used for non-narcotic purpose which generates money for the locals then there is a hope that they will choose the less risky and equally rewarding source of income rather than selling contraband,” Deven said.

“Right now, there is very little choice/opportunity in the villages and the drug mafia is solely controlling this plant. It’s appalling that drugs are easily available in society and medicines are not! What we seek is that the plant is rather put in the hands of our doctors, industrialists, food manufactures and not in the hands of the illegal drug market, he said.

“There are 100s of industries and youth startups who want to open hemp businesses in the State and with a billion-dollar industry the state can prosper a lot, this plant can do more for the people of the state than what apple did many years ago,” Deven said.

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