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Himachal Govt Fails on Promises Made to Pulwama Martyr’s Family

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Himachal Pradesh's Martyr Tilak raj

Shimla– On this day, last year, India was shaken by one of the deadliest terrorist attacks. On February 14, 2019, a terrorist rammed a car loaded with over 300 kgs of explosives (IED and RDX) into one of the 78 buses carrying about 2500 jawans of Central Reserve Police Force on the Srinagar-Jammu national highway in South Kashmir’s Pulwama district.

In this deadly attack, 44 CRPF jawans were martyred and several others injured.

Entire India stood in solidarity with the families of the martyred and protests erupted across the nation. While the people sought justice for families of martyrs, the Centre government made a lot of promises to the families of the martyrs followed by Balakot Airstrike in the wee hours of February 26. The Indian government claimed that hundreds of terrorists were killed in the attack. Thought, this claim remained unconfirmed and in question. However, the people found some solace in the fact that Indian Army Forces had avenged the martyrs.

Thereafter, the sentiments of the people associated with the Indian armed forces were exploited by the ruling party led by Prime Minister Narender Modi in every possible way to win the Lok Sabha Elections in 2019. Every issue was swept aside under the landslide of nationalistic sentiment. The ruling government fought 2019 Lok Sabha Elections by seeking votes in the name of the brave jawans of Indian Armed Forces who laid their lives to protect the country from external enemies, terrorists. While the bravery and capabilities of Indian Armed Forces never remained in question, the political exploitation by politicians to win elections is in fact unacceptable.

At the same time, state governments in BJP ruled states are in question over unfulfilled promises made to the families of these martyrs.

Tilak Raj, a resident of Kangra district, Himachal Pradesh was one of the martyrs in Pulwama.  He is survived by his wife, a 3-year-old son and a 22-day-old newborn.

He was cremated with state honour in his native village Dhewa in Nauna panchayat of Jawali region.

The State Government had announced financial assistance of Rs. 20 lakh to the kin of the martyr. Chief Minister Jairam Thakur had assured that State would provide government employment to the wife of the martyr. In addition, promises were made to provide pension to parents and construct a playground, roads, gate, cremation ground etc., in the martyr’s village.

The family did receive financial aid of announced Rs 20 lakh but none of the other promises were kept. Some members of a student organization- Student Federation of India- on February 13 paid a visit to the house of the martyr Tilak and talked to his father (video). These members included Amit Thakur, Saurabh Kaundal, and Aman Avasthi.

The student organization condemned the Bharatiya Janata Party ruled governments in states where the families have not received what was promised to them a year ago, not even the announced amount of compensation. The martyred CRPF jawans in Kerala, Andra Pradesh, and Delhi have already received Rs. 1 crore as a relief. However, other BJP-ruled states have still not fulfilled their promises made to the families of the martyred CRPF jawans, the student organization said.

The organization alleged the ruling BJP of politicizing the sacrifice of such martyrs and Indian Armed forces for its personal gains. The organization also said that the effect of economic slowdown on Armed Forces is evident from the fact there has been a delay in payment of various allowances to jawans for February month. It’s the second occasion when payment of allowances to the jawans of para-military forces has been put on hold.

The organization has termed this indifference as an insult to the martyrs. The organization demanded a judicial inquiry in the Pulwama attack, status of a martyr for the jawans of CRPF who lay their lives while performing their duty, and the facility of pension. Further, the organization has demanded that promises made to the families of these martyrs should be fulfilled.

Akhil Bharatiya Vidyarthi Parishad also paid homage to Pulwama attack martyrs in an event organized at the campus of Himachal Pradesh University in Shimla. ABVP also demanded an inquiry into the attack to find out how 300 kgs of explosive could reach the convey of the buses carrying CRPF jawans.

Environment

SC’s Forest Diversion Regulation a Blockade on Forest Rights Act Implementation in Himachal: Himdhara

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Supreme Court On Forest Diversion in Himachal Pradesh 2

ShimlaHimdhara Collective, a Himachal-based environment research and action group, has released a report on the implications of the regulation imposed by the Supreme Court on forest diversion under the Forest Rights Act 2006 in Himachal, through a series of orders passed last year. This brought to a screeching halt the implementation of Section 3(2) of the FRA which grants powers to gram sabhas and Divisional Forest Officers to divert upto 1 hectare of forest land for 13 types of village welfare activities like roads, schools, community centres, PDS shops etc. 

The court orders were based on the conclusions drawn by a Supreme Court Monitoring Committee, headed by a retired PCCF, V.P Mohan, that the diversions were leading to green felling and deforestation in the state. Initially, a stay was imposed on all green felling in the state (in a matter of forest diversions under FCA 1980 and FRA 2006) on 11th March 2019. This stay was partially relaxed but the Supreme court sought all FRA proposals to be brought before it for further diversion.

The report titled ‘Missing the forest for Trees’, assesses the ground reality behind the conclusions drawn by the Supreme Court Monitoring Committee based on which these diversions have been restricted.

“We have found that the Supreme court’s orders need to be reviewed because the alarm raised by the V.P Mohan committee with regard to FRA was a false one”,

stated authors of the report which is based on analysis of RTI information as well as field research.

RTI data sought from the Forest department for all cases under section 3(2) of the Forest Rights Act 2006 from 2014 to 2019 (up to January 2019), was analysed to reveal that 17237 trees were felled in an area of 887.56 hectares for 1959 activities in 41 of the 45 forest divisions of the state.

Roads, followed by schools and community centres dominate the type of activities carried out. Of the total land diverted 91% is for roads. It was found that almost 64% of these diversions showed ‘nil’ trees felled. The average number of trees felled per hectare is very low (19.52) and it may be induced that most activities have been carried out in areas with open forest or no trees.

Rohru (Shimla), Nachan(Mandi), Kinnaur and Chopal were some of the divisions which had a large number of diversions, again mostly for roads.

Case studies we carried out in Mandi and Kangra district showed the desperate need for amenities like village link roads and schools. In Himachal, there remain about 41% villages that have no road connectivity which affects access to health, education and market centres.

On the other hand, large development activities like four lane highways, hydropower projects and transmission lines, have had a much larger ecological footprint in terms of tree loss in the state compared to the very minute, incomparable diversions under FRA.

The report also finds that as far as green cover is concerned in the period corresponding to the high number of forest diversions under FRA (2015-2019), the forest survey of India’s statistics show a 333 sq.km increase in the forest cover.

Why development rights under FRA important for Himachal?

1.No Land available with revenue departments and panchayats for ‘welfare activities’ thus forest land only option

The report concludes that given the fact that 2/3rd of the geographical area of the state is recorded ‘forest area’ where strict forest laws have restricted non-forest use, the FRA provides relief for communities to access basic welfare facilities, which should be seen as their fundamental right and therefore should not be hindered.

2.Cumbersome, costly and lengthy process under FCA 1980

Before FRA it was the Forest Conservation Act, 1980 which governed forest diversion even for small local development activities. This required not only permission from the Central Government (MoEFCC Regional or Delhi Office) but also warranted that user agencies deposit funds (Net Present Value of trees) to carry out Compensatory Afforestation. The whole diversion process under FCA was cumbersome, lengthy and costly, and thus a major hurdle in providing the rural areas, especially remote areas, access to basic welfare development facilities.

 “The section 3(2) of the FRA provides relief for both governmental departments and local communities as it overrides the FCA and puts in place a simple and decentralized process for diversion”states the report.

3.FRA is meant to correct the problems that were posed by strict central forest laws

The Forest Rights Act was passed by the parliament of India in 2006 recognising that across the country there are lakhs of communities dependent on land which is legally categorised as ‘forest land’ and are unable to exercise their basic livelihood and development rights due to extremely strict forest laws. Under this act’s Section 3(1), forest-dependent communities can file claims for their individual and community rights exercised before the cut-off date of 13th December 2005.

“As it is Himachal has been sluggish with FRA implementation and only 136 titles have been issued under section 3(1). But atleast the government was proactive with the implementation of section 3(2). With the Supreme court orders regulating this provision, there seems to be an impression amongst the implementing agencies and officials that there is an over-all blockade on FRA in the state”

added members of the collective.

The report has recommended that the state government and nodal agency for the Act – the Central Ministry of Tribal Affairs, put forth the case in favour of section 3(2) of the FRA strongly in front of the Supreme Court and also move swiftly to ensure implementation of all provisions of this law in Himachal.  

 

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“When Our Country is Burning in Silent Phase”

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Poem on Citizen Amendment Act by Bharat Bhushan Sharma shimla f

2020 is upon in a haste
When our country is
Burning in silent phase
Our doors are closed on
A religion, few nations chosen
And you and I stand without treason

Yes, on the road a few
At work some unable to chew
This unconstitutional view
Our country’s regime
Has thought and holds due
Basing someone’s identity
On his attire
How shrewd will we be
Dear sire

You have the golden number
But fret the day
When we stand a count
Not long will you have a sigh
You’ll be heading to the door neigh
Power is yours
But not your virtue
In the helm you are
Take control but sanely
And uplift our glorious country

Your deeds have put us in upheaval
Steady the ship ‘coz
We’r not going to be for long in slumber
We choose not to see
But our eyes don’t wear a veil
If you choose to fail
Us again in this run
We have certain chutzpah
And it’s not going to be fun

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

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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.

 

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