Connect with us

Law & Justice

The Opaqueness of the Collegium Orders and Resignation of a Competent Lady Judge 

Published

on

Why Justice Vijaya Kamlesh Tahilramani Resigned e

Shimla-Justice of Madras High Court “Justice Vijaya Kamlesh Tahilramani”, Days after the Supreme Court Collegium declined her request for reconsideration of transfer to Meghalaya High Court, has preferred to resign rather than to succumb to the order of the collegium.

Justice Tahilramani is one of the senior-most judges and one of the two women High Court Chief Justices.  She was the third woman to assume the charge of Chief Justice at the Madras High Court.

The Collegium had ordered on September 3 that the transfer was recommended in the interests of “better administration of justice”. No other reason was provided in the transfer order.

The Madras High Court is one of the oldest and the fourth largest in the country, whereas the Meghalaya High Court is among the smallest. The transfer was being seen as a punishment by many as it is rarely seen that a serving Chief Justice of a big High Court is given a charge of a smaller High Court. From being the Chief Justice of a court that has a sanctioned strength of 75 judges, Justice Tahilramani was chosen to head a High Court with just three judges.

Instead of accepting her obviously humiliating transfer, Justice Tahilramani has chosen to resign.

As the acting Chief Justice of the Bombay High Court, Justice Thaliramani in May 2017 upheld the conviction of 11 people for life imprisonment in the “Bilkis Bano gang-rape case” (March 3 in 2002, during the riots, 14 people –  including four women and four children – were killed while 19-year-old Bilkis Yakub Rasool who was 5 months pregnant was gang-raped in a moving truck and left to die. But she survived the brutality and fought for justice). As a judge of the Bombay High Court J. Thilaramani had ruled that 11 of the accused deserved life sentence.

In another important case as a judge of Bombay High Court, Justice Thaliramani laid down guidelines regarding pregnant women prisoners.

She rejected the plea of 1993 serial blasts convict to be released on parole to attend to his ailing wife in one of her last judgements for the Bombay High Court.

“Consideration of sympathy for him cannot be permitted to overshadow the consideration regarding the security of the society,”

the division bench of the acting Chief Justice and another judge had observed.

Is “Better Administration of Justice “a “Self-Explanatory Reason”?- The Opaque and Arbitrary Decisions by the Collegium 

If the judiciary has to be a bulwark for the protection of the “rights of the individual” and mete out even-handed justice without fear and favour” then it should be independent.

Exercise of the judicial function is one which requires more than any other work a proper balance of mind and an undisturbed and peaceful life. Administration of justice cannot properly be done by a disgruntled judge. If transfer hangs over his head as a Damocles’ sword, the balance of justice slips out of his hand. An immediate and unnoticed transfer may cause so great inconveniences that it may compel him to quit rather than comply with the transfer order.

In the judges’ case, the Supreme Court held that the consent of the judge was not necessary for his transfer from one High Court to another. According to the Court, there are three safeguards against arbitrariness in the use of the President’s power to transfer judges under Article 222. They are:

  1. There must be full and effective consultation with the
    Chief Justice of India.
  2. The power of transfer can be exercised in public interest only and not by way of punishment.
  3. Judicial review of the decision of the President to
    transfer a judge.

However, do these safeguards suffice to preserve the independence of the judiciary, one of the cardinal faith of the Constitution? Judges, unlike government servants, judges hold an office under the Constitution and there is no master-servant relationship between the government and the judge. A close study of Sankal Chand’s case and the Judges case would reveal that the Supreme Court has miserably failed to bring out the clear distinction between the transfers by punishment and transfers in public interest or in the present matter, as the order put it, “for better administration of justice“. These expressions are not capable of any precise definition and in a given set of circumstances may be applied differently by different people. In many cases, it would not be possible to rule out some element of a penal character. The present procedure, as it stands, has instead of limiting the scope of transfers only enhanced its scope by giving a very elastic definition of public interest and ‘better administration of justice”.

The great Mr. Palkhiwala, after examining the Judges’ case had rightly pointed out that the dichotomy was not between transfer in public interest and “for better administration of justice” and transfer by punishment, but the dichotomy was between transfer in’ public interest’ and transfers for ‘extraneous considerations’. According to him, the object of the transfer and not the result, or effect, of the transfer is the decisive factor. the object of the purpose needs to be clearly spelt out in such orders and this cannot be done in a slip-shod manner.

Justice Bhagwati in Sankal Chand’s case and reiterated in the Judges case that the “transfer is made consensual” was the only effective safeguard for a judge against arbitrary transfer and only if such an interpretation is accepted, the noble concept of independence of the judiciary can be preserved. This view is shared by many eminent jurists, judges, lawyers etc. The Lord Chief Justice of England, Hon. Lord Lane, speaking on “Standards of Judicial Independence” expressed the view that a judge ought not to be liable to be transferred from one High Court to another without necessarily seeking his consent. Justice H. R. Khanna, a former judge of the Supreme Court, regretted that the Law Commission’s recommendation that no judge should be transferred without his consent unless a panel consisting of the Chief Justice of India and his four seniormost colleagues find cause for such a course has fallen into deaf ears.

The resignation of the Hon’ble  Justice Vijaya Kamlesh Tahilramani is another dark chapter in the matters of transfers of the judges of the Superior Courts. The Hon’ble judge not only ‘did not give her consent‘ but also ‘opposed her transfer by writing a letter to the collegium’. Better administration of justice can be achieved by providing detailed reasons to the Hon’ble judge and to the people of India. Transfers without reason can instil fear in the minds of the judges, the first casualty of which would obviously be the justice itself.

The constitutional provision (Article 222) on the transfer of judges has a direct and proximate connection with the independence of the judiciary. This provision, like many other constitutional provision, can be made use of for achieving many useful purposes as well as evil purposes until a clear and reasonable interpretation is given to the Article keeping in view the principle of “independence of the judiciary”  in mind. Its abuse will have many dangerous effects on the judiciary and its independence. If the judiciary loses its independence and becomes subservient, the net result would be that the Constitution will lose its prominence. Justice Khanna has aptly put it like this:

“Once the independence of the judiciary is undermined and the seats of Justice came to be occupied by men with pliable conscience’ and subservient to the political wing of the State, the first casualty would necessarily be the supremacy of the Constitution, for it, would be open to every branch of the State to ride roughshod over the provisions of the Constitution.”

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/

HW Community

CAA and NRC – A Dissent on Grounds of Equality and Fraternity

Published

on

CAA and NRC Legal Interpretation by Advocate Deven Khanna 2

Shimla- In the past few days, there has been unrest in the country over two actions of the parliament i.e firstly, due to introduction of a law called Citizen Amendment Act (CAA), which deals with granting of citizenship to refugees, and secondly, due to the declaration that India will soon have a register of citizens (NRC) where all citizens will have to prove their citizenship with documentary evidence.

About 60 petitions already stand filed in the Supreme Court challenging the (CAA) law. This is the first time in the history of the nation that religion has been considered as a determining factor for grant of privileges in a state enactment. The concern of the people is whether there exists a threat to fundamental values of “fraternity”, “equality”, and “secularism” upon which this nation is built upon. The question is “Whether Something which is not allowed to be done directly is being done indirectly i.e exclusion on the basis of religion in the grant of citizenship”.

Another decision of the Government, the “NRC (National Register of Citizen)” is being sought to be imposed nationwide. This exercise has costed public funds from between 1200 Cr to 1600 Cr in Assam already. It has also led to 40 lakh people being declared stateless by the Government in the first instance, just in Assam. This exercise was, however, erroneously done, and on re-checking, the Courts found that the number was actually 19 lakh. There was an error of 20 lakh “Human Beings”, who stood declared stateless.

The number of deportation affected by this entire exercise of NRC in Assam has been found to be negligible. This begs the question, what is the need for conducting such an expensive and unreliable process and whether the present decisions of  parliament are even necessary. Most importantly, if Acts themselves at all are permissible from the perspective of constitutionality, humanity and ethical standards.

Citizen Amendment Act (CAA)

The Law as it Was Before The Amendment:

The law before the amendment essentially said:

If you are in India and you are a non-citizen, without relevant papers, then you are an “illegal immigrant” and, in that case, you have no right be in the country and you are liable to be subjected to be detained and ultimately deported.

Exception to the above rule was;

If one could show that he was a person who was in India, and had come to India due to legitimate fear of being persecuted on any ground in the home country, then he would be eligible for a long term visa. The idea was that if someone is a refugee fearing persecution, then he can stay in India on long term visa basis and the case would be evaluated on ‘case by case basis’.

Notably and rightly so, “religion” had no role to play in the unamended law whatsoever.

The New Law

The 2019 amendment changes the above provision/ position. It creates classes of people who would be entitled to immunity. These classes have been made on the bases of “Religion and Nationality”.

The amendment draws the distinction between persecuted people who have been living in the country from, on or before, December 31, 2014. It puts them into two categories and says that; one category who are of a particular religion and nationality would be entitled to benefit in “grant of Indian citizenship” and other sets of people who belong to certain “Religion and Nationality”, would be ineligible for immunity in “grant of citizenship”.

The Act also reduces the requirement of residence in India for citizenship by naturalisation from 11 years to five years for these particular communities.

Classes of People Who Stand Excluded by Virtue of Section 2 (B) of CAA 2019, are:

1. On the basis of ReligionAnyone who is not a Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians. The exclusion of Muslims, Atheists or any other religion is apparent.

2. On the basis of Nationality – a classification based on country, by restricting the benefit of acquiring citizenship through naturalisation to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

In other words, it says that for certain classes of people there is no immunity from being deemed illegal immigrants, and these classes of people can be denied citizenship and coupled with NRC they can even be put in detention centres or deported to their home country.

Due to such grave consequences, a closer examination of this classification made by the State warrants scrupulous scrutiny.

Violation of Equality

In the new law, the distinction is drawn between “persecuted people living within India” as refugees from before 2014. Amongst these persecuted people, one set is given benefit by the state and the other set is not. The distinction between persecuted people has been drawn just on the basis of religion and nationality. In a secular country, religion cannot become the basis of granting or denying privileges to any person, be it citizen or a non-citizen. This idea goes against the mandate of “Fraternity”, “Equality” and “ Secularism” hence violates the basic structure along with various other constitutional provisions.

It is a settled position/principle of law that whenever there is an exclusion on the basis of classification then;

a. There must be a yardstick to differentiate between those included in and excluded from the group, and
b. That yardstick must itself be reasonable.

Where a legislation discriminates on the basis of an “intrinsic and core trait” of an individual, which in the present case is religion, it violates the “Right to Equal Protection from Laws”. This protection is available to non-citizens settled in India also. Classification based on religion does not form a reasonable classification based on an intelligible differentia.

Therefore, the yardstick is reasonable only if it is not based on an “intrinsic and core trait” of an individual such as religion or sex, this is a constitutional limitation placed on the power of the State.

The determining principle for granting citizenship can never be religion, the only relevant factor was ‘persecution’, as it was in the unamended law.

Citizenship can be granted on the grounds of birth, descent, persecution, and naturalisation alone. Bringing religion as a criterion for granting citizenship cuts through the guarantees of Fraternity, Equality, and Secularism which form the basic structure of our constitution.

For example, if you have 10 people living in India as refugees from the past 40 years, all of them have been persecuted. Now you want to save them; you can choose to save all of them or none. However, if you chose to save few and not save the others, then those few who are excluded cannot be excluded purely on grounds of their religion, there has to be some other basis of making this choice. In the old law, it was just persecution. A secular state is bound by principles of secularism and cannot make decisions based on the identity of religion.

It is a capricious and unconstitutional law supported by impermissible sense of purpose. Few important legal positions are;

1. It is incorrect to say that the Act only applies to non-citizens and that Indians need not worry about it. Even though CAA  does not at present impact Indian citizens, it impacts human beings who are living in India, who are being treated unequally and the State is acting against the fundamental fabrics of our constitution in handing out such treatment.

If you are a Hindu who came from Pakistan 50 years ago, you get immunity from being an illegal immigrant but if you are a similarly situated Ahamadia or Sufi or Atheist from Pakistan/ Afghanistan/Bangladesh, you don’t get immunity. Such a law cannot be passed by a secular nation.

2. It is incorrect to say that law is inclusive and seeks to benefit immigrants. On the contrary, the irrationality of exclusion is apparent from the fact that now, if a person is suffering from the wrong type of persecution, he won’t get immunity. Persecution in itself is not enough as it earlier was when the old law was in force. Now a determination of citizenship grant is made dependent upon a fact-finding probe into an individual’s religious beliefs.

A human being who has been persecuted have been divided unreasonably, arbitrarily into impermissible categories (religion), hence benefit is being denied in violation of Article 14.

3. The amendment arbitrarily pics up the three nations without any rationale. If you are a persecuted person living in India and you belong to the privileged group of countries, only then you get this immunity and if you don’t belong to these three countries, then you don’t get this immunity. These three countries are not the only neighbouring countries where people have been subjected to violence and religious persecution, for example, Tamils And Rohingyas, or Buddhists from Tibet. There is a ‘pick and choose’ method without having any determining basis or underlying rationale in selecting these three countries. Religious persecution has happened in other countries around us and there are people settled in India, from other countries, who are being excluded from this benefit. This action of exclusion on the basis of nationality is manifestly arbitrary as there is no basis for choosing these three particular countries.

4. The inclusion of a few religions and nationalities is a welfare measure, but the problem is that persons who are equally entitled to get this immunity are being denied of this protection. This offends the equality principle and is discriminatory.

5. It is an incorrect argument to say that Policy matter cannot be tested upon the constitution and cannot be struck down on being arbitrary. The most fundamental principle of equality is that every person in India is entitled to equal protection of laws. Equal protection of law allows the govt to draw certain classifications, which must be reasonable, non-arbitrary and with a defined purpose.

If the purpose of this act is to save people from persecution then it cannot draw these distinctions. And if the purpose of the act is to save only certain religions from persecution, then the purpose itself becomes discriminatory, being only on grounds of religion. On this ground alone, the policy can be struck down.

FRATERNITY

Is a Law/Policy Undermining Fraternity Constitutionally Permissible?

A law can be struck down if it violates the basic structure of the constitution. One of the basic features of the Constitution along with “Equality” is “Fraternity” which is mentioned in its preamble. Fraternity is a prime value from where other principles like secularism take root. It is the first time in the history of the country that a law has been passed where the “determining principle” of classification of human beings is on the basis of their “religion” alone. This has naturally caused unrest in the country, but among the protests, the voices of “unity of religions” and “brotherhood” are being raised. The voices counter a “Law” which on the face of it, is being perceived to be against the unity of the nation and drawn on communal grounds. As mentioned earlier, law cannot solely be based on religion, as that would violate the equality principle and Article 14. In addition, this law also offends the principle of fraternity.

In a country such as India, with several disruptive forces, such as religion, caste and language, the idea of fraternity is imperative for ensuring “unity of the nation”, through a shared feeling of a common brotherhood.

According to various decisions of the courts this value has been understood to be of prime importance, though not many precedents exist. None the less, there are few which have given the meaning of this principle and have applied it for circumventing State’s power.

Looking at the issue raised in the present case, this principle can be expounded by the Apex court, as the heart of this problem lies in the values of “fraternity and brotherhood” amongst human beings.

According to the jurisprudential understanding, a fraternal bond is one that does not relate to the shared use of goods but rather a shared feeling that is intrinsic to the existence and functioning of the agents themselves. Any law which undermines or poses a threat to fraternity should outrightly be struck down as the other two great values of “liberty and equality” become illusory in the absence of the fundamental value of fraternity.

Drawing the relation between these three fundamental values, it is said that;

a) Liberty without fraternity, for instance, would bestow upon individuals unlimited powers to pursue individual aspirations, without regard to community sentiments and considerations.
b) Equality without fraternity is characterised as a ‘barbaric’ equality, as individuals would have no consideration for the standing of other disadvantaged persons.

In light of this, it becomes imperative to ask that;

a)  How have the courts interpreted the rights granted on the basis of fraternity?
b) Can a law be struck down as it offends the “guaranteed commitment to fraternity” in our Constitution?
c) Have the Courts directed the State to frame policies keeping these principles and constitutional limitations in mind?

The answers to the above questions can be found in the decisions of the Hon’ble Supreme Court. A Couple of important ones are discussed below;

In S.R. Bommai v. Union of India, amongst several conclusions the Court arrived at, it declared that the principle of secularism was an essential feature of the basic structure of the Constitution. In arriving at that conclusion, the Court employed the principle of fraternity in a variety of contexts to assert that the idea of fraternity is a precursor to the attainment of secularism. The Court explained that the inclusion of secular ideals in constitutional provisions was not a product of mere chance but was consciously deliberated upon by the framers in response to the religious foundations of Pakistan. In substantiating this claim, the Court stated that India was historically a country where religious tolerance and a culture of fraternity existed, and the inclusion of secular provisions was accordingly a natural one.

The Court also established that “secularism is the bastion to build fraternity”, and therefore asserted that secular practice and thinking between diverse religious groups, would aid in the fraternal relations between those communities. The outcome of such religious tolerance would have a double impact on fraternity: it would ensure both the unity of the nation through peaceful interaction and the dignity of each citizen.

The Court held that the Constitution strives towards the promotion of secular ideals that would ensure fraternal relations which is the ultimate goal of the framers.

In the Nandini Sundar Case the Courts employed the idea of fraternity in three distinct fashions:
a. As a buffer to unchecked state power;
b. As a mechanism to promote more inclusive policy by the State and finally
c. To reinforce the Centre’s responsibility of upholding human rights in a federal structure.

The governmental policies that disempower humans on the basis of religion are against the constitutional vision. The constitution mandates that power must vest in the State for the welfare of all and not few. The constitutional vision of welfare must be achieved, according to the promotion of fraternity.

The judges in Nandani Sunder case further added that when state power is not exercised in a responsible manner, then there is an inevitable breach of Articles 14 and 21. In using fraternity in such a manner, the Court has elevated the idea of fraternity to a constitutional principle and not merely a noble declaration. In drawing a clear link between unchecked state power and Articles 14 and 21, the Court has created a nexus between the threat to fraternity and a consequent breach of fundamental rights.

The Court also employed the principle of fraternity to judicially review the policy of the State, it stated that it was the responsibility of the Government to ensure the security and integrity of the nation by means which were within the four corners of the Constitution.

The Court in the issue at hand can certainly adjudicate on the basis of the principles mentioned in the above two cases and further expound it. The Courts have the duty to preserve constitutional morality which here is an idea of a “unified nation”, where a culture of fraternity flourishes. Hence any policy of the Government which gives rise to “disaffection and dissatisfaction” from its citizens and is a threat to the unity and secular ethos is liable to be struck down on this ground alone.

NRC National Register of Citizens

Assam is a border state and is suffering from the problem of immigration. In the 70s and 80s, the immigration problem led to a strong movement in Assam, which ended with “Assam Accord”. The part of the agreement between Assam and Indian union was the preparation of NRC, which essentially was an exercise of identifying “citizen of India in Assam” and rest who were “non-citizens”.

What we have seen in the last five years is that this NRC process has led to widespread exclusion and disenfranchisement. This is because the NRC procedure relies on documents, the documentary evidence showing that you are a citizen of India.

In a country like India with widespread illiteracy and poverty, this is a very difficult task. The most vulnerable people will be up for exploitation and harassment.
In Assam, the experience shows that 19 lakh people have been left stranded as ‘stateless non-citizens,’ as they have no documents. Amount of more than 1200 crores have been spent on this exercise with negligible deportation. More worrisome is the fact that 20 lakh people in Assam were found to be wrongly excluded by the Supreme Court in this exercise.

Can NRC go National as the Home Minister Has Suggested?

Data collected till now highlights three major issues which have come in the implementation of NRC in Assam, these are;

1. The most marginalised suffer the most and
2. The women suffer more than men due to insufficient documentation
3. A negligible amount of people are actually deported, and the law does not even serve its purpose efficiently even after consuming lots of time and public money.

Hence, if data shows that these two oppressed groups are the most affected by such an exercise and there has been no good benefit achieved, then implementing the same in the rest of the country is totally illogical.

If you combine CAA and NRC, what you get is that if you are a non-Muslim, who has been left out of NRC, then you still have a possible path of citizenship from CAA. A class of people gets automatic immunity based on religion and nationality. If you are a Muslim, atheist, etc., you are completely ruled out even if you belong to these countries. Ultimately, you are subjected to deportation, or you are put in detention camps. It’s relevant to point out here that the condition of detention camps is terrible and inhumane and is a separate issue in itself.

Conclusion

CAA read alone is discriminatory as it discriminates between persecuted people and divides them in an impermissible category on arbitrary grounds.

The amendment to citizenship Act has brought about disaffection, dissatisfaction and fear in a class of people and has caused unrest in the country. There is internet shutdown (which amounts to the curtailment of the right to speech and expression) in various parts of the country and Section 144 stands imposed in few states. We have an exercise like NRC which wrongly excluded 20 lakh, people, from being a citizen. Now, this is being proposed for the whole country, in the coming days. Worryingly, this might lead to the biggest statelessness crisis of the world causing immense human suffering.

A class is being discriminated on the basis of religion, by state action. The law is arbitrarily neglecting certain communities which is against the Fraternal and Secular values of our country.

The role of the courts as the bastion of fundamental values of the nation is about to be tested. In such times, our commitment to “fundamental duty” and the true values of our country i.e brotherhood and unity and non-violent protests are also under test.

 

Continue Reading

HW Community

Legalisation of Non-Narcotic use of Cannabis (Hemp) in Himachal: Policy in Making

Published

on

Cannabis Legalizatoin in Himachal Pradesh 2019

Shimla-A policy for the cultivation of Cannabis (Hemp) in Himachal Pradesh could see the light of the day as the government has hinted at legalizing it for non-narcotic use. The Excise and Taxation Department, HP, is framing a policy on the lines of neighbouring state Uttarakhand to legalize the cultivation of cannabis for the production of life-saving medicines and some other limited number of industrial products. It was confirmed by Sanjay Kundu, the Principal Secretary, HP Excise and Taxation Department recently.

Advocate Deven Khana, a resident of Shimla, has been fighting a long legal battle in the state high court. The High Court had already given a green light and directed the government to take the final decision time and gain. However, the state government has been seeking time for the past two years in the Court. In the last order of the High Court, eight-week time was given by the division bench headed by Hon’ble Chief Justice Surya Kant and again by the bench headed by Justice V Ramasubramanian (both now justices of Hon’ble Supreme Court). The petition has been heard by 4 different benches of the Hon’ble High Court i.e 8 judges, all have agreed with the submissions and have asked the state to take action.

Advocate Deven Khanna, a resident of #Shimla, currently practicing at the State High Court of HimacahlPradesh is…

Himachal Watcher द्वारा इस दिन पोस्ट की गई बुधवार, 24 जुलाई 2019

However, now, it is being speculated that ahead of government’s Global Investor Meets, some foreign countries have shown interest in procuring cannabis as raw material from the state for production of medicines, research, and other products.

There is a possibility that the government would consider approving this policy in the cabinet meeting to be held in November before the Investors Meet.  If legalized, this step would offer an alternative source of income to the people of rural areas like Malana, which are currently infamous for narcotic use of cannabis.

UP has already become the first state to sanction a research and development (R&D) project on cannabidiol (CBD) and tetrahydrocannabinol (THC), compounds found in cannabis. The same direction has been given by the state high court of Himachal Pradesh.

Earlier, unawareness and lack of education regarding the difference between hemp and recreational cannabis and the political link between the two, the topic of legalization had been facing criticism and state was missing a big opportunity to cash on it. Himachal Watcher (HW) had published a detailed report to clear this misunderstanding.

It’s available here. HW has also highlighted the fact as to how legalization of hemp cultivation could revolutionize the economy of the state. 

The petition further states that the goal of such a policy would be to ultimately reduce the availability of narcotic cannabis plant to the drug market and instead make it available for non-narcotic purposes to our scientists, doctors, industrial leaders and farmers. Further, the drug problem will be checked If industrial hemp or low THC plant is grown as it will reduce the potency of wild cannabis (which is high in THC) due to cross-pollination (this has been tried in other countries and backed by research in the petition).

Must Watch: Impact of Hemp Legalisation in Himachal Advocate Deven Khanna, a resident of #Shimla, had filed a petition in the HP High Court, seeking directions to the State Government to legalise hemp cultivation in #HimachalPradesh. Owing to his battle for the legalisation, the court also gave a green signal. He created awareness among people in villages, and now a large number of panchayats are supporting him in this campaign. You must listen to Deven speaking why he is perusing a vigorous fight to legalise hemp cultivation in the State. "When the laws are more dangerous than the drug itself, a fight for civil liberties becomes necessary Stopping research and science are not only unconstitutional but a crime against evolution. The petition seeks to open the market for medical and commercial use of cannabis in the Himalayas so that the locals have some alternative source of income, patients have access to effective natural medicines, making available biodegradable alternatives to plastic," he says. #HempLegalisation #Hemp #Cannabis #CannabisLegalisations #Himachal #HPGovt

Himachal Watcher द्वारा इस दिन पोस्ट की गई शुक्रवार, 22 मार्च 2019

Other Details Regarding the Petition Filed in the State High Court

Approx 8000 pages of research have been submitted from the past 2 years in the High Court and with the State government by the Petitioner Advocate.
  1. The research includes 60 peer review ‘medical hemp studies’,
  2. Comparative analysis of ‘ market projections of industrial hemp’ by various companies and foreign Governmental bodies,
  3. Projected profits for farmers, Government, and Companies for Himachal Pradesh,
  4. Comparative analysis of laws of various countries (like Canada Israel, USA, South Africa, Mexico, etc),
  5. licensing terms and conditions of different countries,
  6. Testimonials of patients especially those who suffer from cancer and epilepsy who need immediate help,
  7. The research of Indian research institutes like AYUSH, CSIR, etc,
  8. The text from Indian scriptures and mention in Ayurveda of the plant and its recorded medicinal usage from past centuries.

 

The petition states that by making Non-Narcotic use of the plant, dependent upon the Government’s discretion (through Section 10 of NDPS), makes it incumbent upon the government to take a reasonable and a rational decision. By not taking the decision, the State is violating fundamental rights and is also hampering the economic and commercial growth of the society. The Non-Narcotic use for medicines and economically/ecologically viable products has the potential of revolutionizing the economy of the State, and better the lives of people suffering from various diseases.

The petition extensively quotes various sections of the NDPS Act 1985 and its interpretation by the courts of law. The petition also goes through cases of various countries involving medicinal use of cannabis and its industrial applications where the courts have declared them to be a matter of right for citizens.

After hearing the petition and the arguments, in its  order dated 01.2018, it was directed by the Division Bench of the Hon’ble High Court that:

“Based on scientific data, writ petitioner points out that perhaps if the Executive were to rationally formulate a policy and also effectively implement the provisions of Narcotic Drugs and Psychotropic Substance Act, also with the genetic modification of the plants of cannabis, not only there would be rapid economic growth checking problem of unemployment in the rural areas, but would also reduce pollution. In fact, the larger public interest would be served with the use of the extract of the genetically modified plants for health purposes. The end product of the cannabis plants, which thus far, rather notoriously, has been used as a psychotropic substance, with proper regulation, sensitization and awareness, can be used for advancement of industrial economic growth and betterment of life of such of those persons, who in particular are suffering from cancer and neurological disorder. Perhaps, it is in this backdrop that the Central Government has also made an endeavour to formulate a policy, which is commonly known as the National Fiber Policy, 2010. The writ petitioner also points out the extensive research, so carried out by him, indicating the change in the trend, throughout the world, of putting the end product of a genetically modified plant, for medical use.”

 

Then in an order dated 07.2018 in it was directed by the Division Bench of the Hon’ble High Court that;

 

“Para 20, (ii). Government may also consider hiring services of some Research Agencies, who in turn may advise/recommend alternate use, especially medicinal use, if any, of cannabis plant grown in the State of Himachal Pradesh, so that local residents, involved in illegal trade of cannabis, are encouraged to use cannabis plants for producing some medicines or other substance which can be used legally.”

 

Then in an order dated 07.2018 in it was directed by the Division Bench of the Hon’ble High Court  again directed;

“The matter has been adjourned from time to time to enable the State Government to revisit the whole issue, take a holistic view and come out with a new policy decision. Various stakeholders and subject experts are stated to have been consulted in the process of decision making. On 23rd April 2019, the petitioner also has filed/supplied voluminous record along with DVD, containing relevant material on the issue to the State Authorities. Learned Senior Additional Advocate General seeks and is granted more time for the final decision. We have no reason to doubt that the competent Authority shall consider the entire material, including one supplied by the petitioner before taking a final decision in the matter. It shall be appreciated if the decision is taken within a period of eight weeks.”

The petition in the High Court of Himachal Pradesh is seeking two things:

1. Cultivation of Industrial Hemp (or a Non-Narcotic Plant) , about 0.3% – 1.5% THC

2. Collection by Government of Wild Himalayan Cannabis Plant, 5% – 10% or more THC (Tetrahydrocannabinoids, the intoxicating ingredients that makes you high)

Hemp and Marijuana both come from the same plant – Cannabis Sativa L. The term ‘Hemp’ commonly refers to the industrial/commercial use of the cannabis stalk and seed for textiles, foods, papers, body care products, detergents, plastics, and building materials.

The term ‘marijuana’ refers to the medicinal, recreational use involving the smoking of cannabis flowers. Industrial Hemp can not be used as a recreation drug.

Industrial hemp is a nonpsychoactive verity of cannabis which can be used for 50000 commercial products, as it does not contain THC  (narcotic compound) it can be grown like any other crop. It can be grown in rotation with apple. It grows in a cycle of 90 to 120 days and can be used to make paper (which saves cutting of trees) and bio-plastic, fibre and medicines, etc.

 Not only is Industrial Hemp useful for economically viable raw material, but it also prevents the growth of high THC plant.

The petition further states that if farmers have this alternative source of income, it will provide them with a choice of making money through the legal means,  and it will prevent them to falling pray at the hands of the illicit drug market for quick money.

The second part of the petition deals with collecting wild Himalayan cannabis and using it for medicinal purposes, as it is all on govt land or forest land, the government can collect it That wild-growing cannabis plant thus can be collected and supplied as raw material (its stock for fibre, its seeds as medicine) to industries and stakeholders. This will not only reduce the availability of the plant for drug use, but it would also generate income for the villagers (who collect) and commercial units.

Summary of Relief Sought from the High Court

First, the government should define industrial hemp (based on the percentage of THC) and authorize the cultivation and possession of industrial hemp by creating an advisory board or commission.

The petition also appeals to facilitate the cultivation, processing, and use of only industrial and medical hemp, so that the public could receive is commercial and medical benefits.

The petition seeks to authorize a state licensing or registration program for growers and seed breeders. The state departments should be allowed to collect funds for research programs, said the petition.

The government can promote research and support the development of markets for industrial and medical hemp.

The court can direct the government to collect important information on industrial and medicinal hemp to further make regulations/guidelines on easy access to open industries, scientific research labs, and institutes for Industrial and medicinal hemp use.

Continue Reading

HW Community

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

Published

on

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.”

Continue Reading

Trending