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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 a period of 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, an 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. The manner in which 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 totally 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.”

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 [email protected] The personal blog is at https://lawumbrella.wordpress.com/

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Video: Three Shimla MC Workers Caught Dumping Garbage in Forest, Suspended After Video Shared on Twitter

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Shimla MC Workers Dumping garbage into forest

Shimla- Three sanitation workers of Shimla Municipal Corporation were suspended after a video was posted on social media showing them disposing of a large amount of garbage in a forest area. The incident became an embarrassment for SMC as the video went viral on Twitter and reached Central officials and green activists.

As per the local who recorded the video, on November 22 at about 1:30 PM; he saw garbage being dumped in the forest near SMC parking on the cart-road.

A green activist of Healing Himalaya organization picked the video on Twitter and brought it to the attention of the officials of the Centre government. The organization tagged BK Agarwal, Secretary Lokpal, Govt. of India and IFS officer Parveen Kaswan.

Sanjeev Gupta, Secretary, ISCS, Home Ministry, also responded on the video and Tweeted,

“An absolute shocker. Stern action should be taken against these reckless murderers of the environment (most likely working for Shimla MC). Will take it up with the State Govt & Shimla MC.”

It’s pertinent to mention that Healing Himalayas had undertaken a cleaning campaign in the said area a few months back. The organization in its Tweet said,

“It is so disheartening to see our work being undone near lift Shimla.”

The SMC was directed to take action. It was found that the sanitation workers of the SEHB society were dumping about two tons of garbage collected from the lift area during one of its cleanliness campaigns.

However, instead of carrying it up to the road for transportation, they dumped it into the forest.  The workers were identified from the video and suspended.

According to the Commissioner, SMC, Pankaj Rai, the Area Supervisor and Sanitary Inspector have been served show-cause notices.

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Baddi Dumping Yard Case: Blow to Solan Admin as HC Directs Relocation of Family, Construction of House, Cow-Shelter

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Baddi Dumping Yard Case 2

Solan-As a blow to the trickery of District Administration, Solan, and the Baddi-Barotiwala-Nalagarh Development Authority (BBNDA), the Himachal Pradesh High Court on November 21, 2019, gave a big relief to the families forced to live in inhuman conditions in Baddi’s Kenduwal. These two authorities had been reluctant to relocate or compensate victim families. They went to the extent of not following the orders of the court. In fact, this case has highlighted the hypocrisy of the government over its own Swachh Bharat campaign. 

However, hearing the petition, a bench of Chief Justice L.Narayana Swamy and Justice Jyotsna Rewal Dua on november 21, 2019, passed orders directing the Deputy Commissioner, Solan, to identify a piece of land to relocate the family, provide them with a house, electricity and water connection, and consider construction of cow-shelters for their cattle to the satisfaction of the families.  The court also appointed Rajnish Maniktala, a senior advocate as Amicus Curiae to assist the court in this petition. Further, the implementation of Solid Waste Management Rules in the entire state has come under the ambit of this petition, which was filed by Shimla-based Advocate, Deven Khanna. 

The BBNDA and Baddi Municipal Council had turned the site at Kenduwal into an illegal dumping yard. The Authority was supposed to construct a Solid Waste Treatment Plant years ago, however, instead, it simply created a dumping yard and violated several environmental laws and guidelines. As per the petition, none of the 36 Conditions mentioned in the Environment Clearance letter are fulfilled by BBNDA. Such grieve environmental violation under the patronage of the state government is a matter of huge concern for the state. 

The houses of about 32 members of four families belonging to Gujjar families were located at this site. These families had been living here for over three decades. Creating dumping yard around their habitat had made their lives unbearable as well as unsafe due to unhygienic conditions arising due to this illegal dumping yard.

 

These families had been running from pillar to post seeking relief. However, none of the state government bodies, district administration, police, or the BBNDA authority listened to their grievance. Eventually, Suleman, on behalf of these families, approaches the court to file a PIL.

About six months ago, the court had eventually asked the Authorities to relocate the family to a piece of land that is located at a considerable distance from the dumping yard.

However, BBNDA defied the orders of the court and, in a bid to allegedly threaten the families, it demolished their cow-sheds last month. Over 80 cattle, including about 40 cows and newborns, were left shelter-less to face winters under the open sky.  The families had alleged that officials trespassed and demolished their cow-sheds without showing any orders from any authority. Instead, the officials used police force, including armed jawans, to scare them. Himachal Watcher had published a story regarding the same along with a video of the said demolition being carried out.

Surprisingly, none of the other media (dailies and regional news portals) covered this news. In fact, media hardly showed any interest in this petition ever. It appears, belonging to minority community, the suffering of these Gujjar families did not appeal to anyone except the State High Court. 

Through their advocate, Khanna, the families have also filed a contempt petition in the court, which is pending.

Meanwhile, hearing the main petition, the said orders were passed by the court.

“In the peculiar facts and circumstances of the case, we permit the petitioner to approach the Deputy Commissioner Concerned by filing a separate application with a prayer for relocation of his house to the extent of land, which is in his occupation, to any other suitable area to the satisfaction of the petitioner,”

the bench said in its order.

“If such approached by way of application is made to the DC concerned, the said Authority shall consider his request and pass appropriate order at the earlier,”

the bench said.

“It is stated by the learned counsel for the petitioner that the cow-shed, having cattle, was demolished. For this purpose, DC concerned to also look into the matter while considering the application of the petitioner for relocation/construction of house/ow-shed as well as providing electricity and water connection for the decent living of the petitioner,”

the bench directed the DC referring to the act of demolishing petitioner’s cow-shelter.

It’s pertinent to mention that when previously contacted by HW, the DC, Solan, had termed this as a case of encroachment, and had said that these families are not eligible for relocation as they are not covered by any such policy.  Considering the indifference of the district administration, the current order has come as a blow to it.

The next hearing has been scheduled for December 16, 2019. 

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CBI Probe in Kotkhai Gudia Case Under Scanner, Forensic Report Suggests Involvement of More Than One Person

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Kotkhai Gudia case forensic experts report

Shimla-Gudia Nyay Manch has demanded fresh probe into the ill-fated 2017 Kotkhai Gudia rape and murder case after new revelations were made in the recent hearing in the case.   

The case was closed by the Central Bureau of Investigation (CBI) team after booking and arresting a woodcutter for the said crime with a conclusion that it was not a gangrape and only one person was involved. The turn of events left the family of the 16-year-old victim and the people of the state stumped and unsatisfied. Media reports had also challenged the probe

While CBI claimed to have solved the case after eleven months of investigation, hardly anyone was convinced that a woodcutter could have possibly committed this crime and managed to fool CBI and bribe nine police personals including IG, SP, and DSP to frame wrong people.

The accused police officials, who were booked for the custodial killing of Suraj – one of the six suspects allegedly framed by them, were defending someone, the public suspected. There were many other questions which remained unanswered thus the CBI’s claim failed to convince anyone that justice was done to Gudia.

After a silence of about one year, the inquiry conducted by the CBI is in the public court. During the hearing of the case of custodial death at Chandigarh-based CBI court, forensic experts claimed that there is a possibility that more than one persons were involved in the rape and murder of Gudia.

These forensic experts – HV Acharya, Assistant Director, Forensic Science Laboratory, Gandhinagar, and Hemangi Shah Assistant Director, Forensic Psychological Division, Directorate of Forensic Science, Gandhinagar- had conducted polygraph and Brain Electrical Oscillation Signature Profiling (BEO) tests on the five accused – Rajinder Singh, Lokjan, Deepak, Ashish Chauhan, and Subhash Singh.

During this hearing, they were cross-questioned by the defense counsel, Atvinder Singh.

Singh asked Dr Acharya if he still stands by his observation that the crime in Gudia was conducted by more than one person, Acharya said “Yes” as an affirmative response. Dr Shan also supported Acharya.

A joint observation report was compiled by the two experts and submitted to the CBI.

While their report clearly said that no role of these five accused was observed in Gudia case. Their report had also said that no role of Rajinder was observed in killing of Suraj.

Moreover, the report of these experts has also observed that there was “definite police effort to defend someone”.

The experts stood by their observation that these six accused were arrested and tortured without any direct evidence.

The Gudia Nyay Manch is up in arms again against CBI for an allegedly botched up investigation in the case. The Manch said it would be staging fresh protest against CBI soon.

What is Kotkhai Gudia Case

On July 4, 2017, a 16-year-old girl, who was returning home from her school in Mahasu are of Kotkhai, Shimla, went missing. Her naked body was found in the forest of Halaila on July 6. As per the initial investigation by the police SIT, Gudia was gang-raped and then murdered. The SIT on July 13 arrested six persons claiming that they cracked the case.

However, the family and locals were not convinced that these six accused, five of which were laborers and daily wagers, had committed the crime. The pubic, as well as the media, wasn’t convinced with the theory given by the police SIT. On July 18, public outrage was witnessed after one of these accused was killed in the police custody while locked up at the police station, Kotkhai. The locals pelted stones on the police staff and compelled them to leave the station. The station was then set on fire.

Under huge pressure from the public, then Congress-led state government asked the CBI to investigate the case. By the end of August 2017, CBI had arrested nine police officials including the head of the SIT Zahur H Zaidi, IG, Southern Range, DSP, Theog, Manoj Joshi, and six others for the custodial killing of Suraj. Later, the CBI also booked then Superintendent of Police, Shimla, D W Negi.

In its charge-sheet submitted to the court, the CBI had said that all six accused were falsely framed by the SIT.

The CBI had filed a separate case to investigate rape and murder of Gudia. The CBI team investigated for next eleven months without any success, thereby, facing backlash from the state high court over delay in the investigation. Ultimately, disappointed with the CBI, the court questioned the competence of CBI and asked its Director to appear personally before it.

Immediately after this summon, CBI claimed to have cracked the case in which a woodcutter was arrested. The case was considered to be closed thereafter.

However, doubts remain over botched up CBI investigation in the case.  

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