The Darkest Hour In Indian Judicial History - When The Supreme Court Surrendered Its Autonomy During Emergency

This was published in Indiatimes

Today, most Indians have an implicit faith in the Supreme Court righting any wrongs done to any citizen by the government. But there was a dark period during the Emergency (1975-77) when even the Supreme Court bowed down to the diktats of the government and robbed the citizens of the country of their final hope of grievance redressal.

What was the case

ADM Jabalpur v. Shiv Kant Shukla, or the Habeas Corpus case as it came to be known, was a blot on the judiciary. No citizen had any right to move to the courts against any arbitrary action by the government, which resulted in the loss of his/her liberty or even life.

Four of the five judges on the Supreme Court bench came to this conclusion at a time when Mrs. Gandhi's emergency regime was rounding up opposition political figures, trade unionists, student leaders, civil society activists etc. and throwing them into jail for their crime of speaking up against the brutal emergency regime. This violated the most fundamental principles of democracy with impunity.

How it led to the making of draconian law

Chief Justice A N Ray, beholden to Mrs. Gandhi for his appointment as the Chief Justice after superseding other senior judges, chose to disregard the unanimous conclusion advanced by all the other high courts of the country on the same question. They all agreed that, even in the darkest period of political turmoil, a citizen could approach the high courts under Art. 226 of the Constitution for appropriate remedy through writ jurisdiction. CJI Ray chose to overrule all those judgments and closed the gate of the courts to the ordinary citizen of the country demanding justice in very unjust times.

The Judge who didn't budge 

Justice H R Khanna, the lone dissenting judge on the Supreme Court bench that decided ADM Jabalpur, paid the price for his dissent when he was superseded by Justice M H Beg for the post of Chief Justice. 

What's Habeas Corpus

The phrase "Habeas Corpus" means "have the body" and is usually used to challenge illegal detention by the government. Its roots can be traced back to the Magna Carta of England in 1215. When the SC decided to rob the citizens of the remedy through Habeas Corpus, it not only dealt a blow to the principles enshrined in our constitution, but also positioned itself against a legal principle dating back more than 750 years and recognised by all civilised democracies around the world.

How the case unfolded

Mr. Shanti Bhushan, Mr. Ram Jethmalani, Mr. Soli Sorabjee and Mr. Anil Divan argued for the detainees. The government was represented by Attorney General Mr. Niren De. The Attorney General argued that the detainees had no right to move to the court under a writ of Habeas Corpus as all fundamental rights including Article 21 of the constitution were suspended during the emergency. This lead Justice Khanna to ask, "Article 21 also contains life. Would government arguments extend to it also?"

The Attorney General replied, "Even if life was to be taken illegally during the Emergency, the courts are helpless".

The Attorney General would later justify his outrageous defense of the Emergency with these words, "I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel." 

The Habeas Corpus case has been dubbed ”the biggest blow to the Supreme Court – by the Supreme Court” by the People's Union for Civil Liberties. Justice V R Krishna Iyer, an eminent jurist, called the judgment a disgrace at par with an American judgment that ruled that Negroes were slaves to be owned, not humans who could own. H M Seervai, another eminent jurist, said that through the judgment, the four Supreme Court justices had propounded the maxim "lawlessness be thou our law". 

As for Justice Khanna and his role during the gloomy days of the Emergency, these words from an editorial by the New York Times are more than enough to sum up the tale of one of the darkest cases in India's judicial history:

“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society, and the Indian Supreme Court’s decision appears close to utter surrender.”

Everything You Need To Know About Aruna Shanbaug, Whose Case Led To India's Euthanasia Debate

This was published in Indiatimes

At some point in your life, through friends, popular media or your school or college, you must have come across the term "mercy killing". The legal term for mercy killing is euthanasia and the consequences of legalising it, have over time, become a heated debate among India's intellectual, political and legal circles. The case that led to this heated debate was that of Aruna Ramchandra Shanbaug v. Union of India.

Aruna Ramchandra Shanbaug was a nurse in the King Edwards Memorial Hospital in Mumbai when she was assaulted by a sweeper of the same hospital while changing her clothes in the hospital basement. During the assault, she was tied with a dog chain around her neck, which cut off oxygen supply from her brain and rendered her in a permanent vegetative state for the next 42 years.

From the day of the assault till the day she died, Aruna could only survive on mashed food. She could not move her hands or legs, could not talk or perform the basic functions of a human being. Journalist-Activist Pinky Virani, who had published a book regarding her case titled Aruna's Story, filed a writ petition under Article 32 before the Supreme Court of India, asking for the legalisation of euthanasia so that Aruna's continued suffering could be terminated by withdrawing medical support. She contended that the patient had been in a permanent vegetative state for the past many years and did not have any chance of recovery at all.

The Supreme Court accepted the petition and constituted a medical board to report back on Aruna's health and medical condition. The medical board, comprising three eminent doctors, reported that the patient was not brain dead and responded to some situations in her own way. They felt that there was no need for euthanasia in the case.

The staff at KEM Hospital and the Bombay Municipal Corporation filed their counter-petitions in the case, opposing euthanasia for Aruna. The nurses at KEM Hospital were quite happy to look after the patient and they had been doing that for years before petitioner Pinky Virani emerged on the scene. 

The court, while delivering its judgment, distinguished between active and passive euthanasia. Active euthanasia means killing a person through the use of lethal substance or force, and passive euthanasia means withdrawing or discontinuing medical support necessary for the continuation of life. The court rejected the plea for euthanasia for Aruna Shanbaug but legalised passive euthanasia in the country.

The reason any debate around euthanasia generates such a heated discussion is because while our constitution recognises the right to life with dignity, it does not recognise the right to die. Therefore, a debate regarding mercy killing is just not a debate regarding the legality of such a wish, but is also a debate about the morality and ethics of such an act. With the concept of euthanasia, law enters that complex territory of medical ethics which has even divided the medical fraternity sharply in the recent past.

Passive euthanasia did not remain legalised for long in India. In Common Cause v. Union of India, it was urged that the judgment of Aruna Ramchandra Shanbaug v Union of India was decided based on incorrect interpretation of the constitution bench's judgment in Gian Kaur v State of Punjab, and therefore it was referred to a larger constitutional bench for review and final judgment.

Aruna Shanbaug died in May 2015, but her case helped in shedding light on an extremely complex issue of medical ethics and law. Euthanasia is currently legal in the Netherlands, Switzerland and the United States. Will India join the list?

We'll have to wait and watch.

A Tale of Two Deaths: Pratyusha Banerjee and Delta Meghwal

Over the last week there has been a lot of hullabaloo over the alleged suicide of former Balika Vadhu lead Pratyusha Benerjee. The 24 year old actress committed suicide in Mumbai over difficulties in her relationship with her boyfriend, depression and lack of work. Her boyfriend Rahul Raj Singh, was hospitalized after being described on the 'verge of madness' by his friends after two days of questioning by the police. 

On the other hand, there has been complete silence in the mainstream media about the rape and institutional murder of the 17 year old student Delta Meghwal in Rajasthan, which exposes deeply entrenched bias against students belonging to lower castes in the country's "cow belt" state as well as in the mainstream media. Delta Meghwal was allegedly raped by her Physical Training instructor and her dead body was found in the water tank of her college. She was studying in a training institute in Bikaner and her artwork had been acknowledged by the state's Chief Minister herself. According to the facts that have come to light so far, it is alleged that the institute that Delta was studying in actively conspired to cover up her rape and harassment by the PT instructor and forced an apology by both of them which stated that they were caught having sex by mutual consent. To rub salt on the wound, Delta's dead body was carried off from the institute in a municipal garbage carrying vehicle. 

The Ladies Finger, a prominent feminist website, has posed five questions to Delta's institute reproduced below:    

Questions activists are now asking, and we should all ask:
1. Why did the principal Eashwar Chand Vaid and the institution  not file a police case against Vijendra Kumar Singh, since Meghwal was a minor?
2. Why was the college’s knee-jerk reaction instead to force Meghwal to write a letter that she had been shamefully caught in consensual sex with her teacher?
3. Why was due process not followed by the police when Meghwal’s body was found? Reports say that even video evidence was not taken before Meghwal’s body was moved from the scene of the crime.
4. Why did the police use a garbage tractor to move her body?
5. What kind of institution was Vaid running where it would be considered ‘normal’ for a teenaged girl student to be sent to clean the room of a teacher?

Caste Consciousness in Mainstream Media

The case of Delta Meghwal comes close on the controversy involving the institutional murder of Dalit PhD scholar Rohith Vemula in Hyderabad. While Rohith's suicide was taken up in a big manner by JNUSU as well as HCU before coming in the mainstream media, Delta's rape and murder has hardly attracted any mainstream media attention.

This is not to say that Pratyusha Banerjee's suicide was any less tragic. True, depression in young people is a serious issue that should be debated and for which the government should be pressurized to take remedial measures such as providing additional counselling and sensitizing the public about the measures to be taken in such a scenario. However, the complete blackout of the rape and murder of Delta points to the caste bias in the media which considers suicide and murders of upper castes worth its TRPs and those by lower castes as pass overs.

Numerous studies have shown that dalits have gone almost unrepresented in India's mainstream media leading to a very slanted view when it comes to caste. This opinion piece in The Hindu, for example, documented how the representation of dalits in the Indian media had remained static since 1992 and that such static-ness was a violation of the constitutional guarantees of equality and equal opportunity. This opinion piece in Firstpost, written by someone who carried out a three month study of the journalists who passed out of IIMC, country's premier journalism training institute, records the sting of caste discrimination faced by lower caste students even in the supposedly 'progressive' mainstream media. Finally, this opinion piece in the Hindustan Times wondered aloud whether the suicide of Rohith Vemula would alter the caste dynamic and sensitivity in the country's leading newsrooms. Going by the coverage given to Delta Meghwal's death, it clearly hasn't. 

The Absent Legacy

In an opinion piece written for Seminar, NDTV's Ravish Kumar ruminated on the caste relations that are forged between different politicians and journalists and the kind of gratitude he was flooded with after airing an episode on Ambedkar Jayanti. Dr. Ambedkar's seminal role in writing our egalitarian constitution, although applauded by many, has scarcely done much to alter the social attitude towards dalits in India, who continue to be discriminated against in many spheres. Reservations in government jobs and institutes of higher education, have done a lot to empower this downtrodden and exploited section of the Indian society, but at the same time it has fueled negative feelings verging on hateful feelings against the lower castes by the upper castes in the country, as witnessed by numerous caste atrocities still prevalent in the country today.

The coverage given to Pratyusha Banerjee's death, on the other hand, displays a deep sensitivity towards the urban problems faced by youngsters, namely depression, lack of work and difficulties in love life, which figure in the 'safety' and 'love' category of Maslow's hierarchy of needs. It is only when an individual reaches these advanced stages that these issues become important. However, if an individual hasn't even progressed or is progressing from the starting point, doesn't his/her struggle assume more importance than the one who has already crossed this level just by the reason of his/her birth?

 Conclusion

The stark contrast between the coverage and attention given to Delta Meghwal's death as compared to Pratyusha Banerjee's death is a timely reminder of the discrimination faced by the lower castes both in the employment and coverage of issues with regards to the mainstream media. Before we can move towards the goal of an egalitarian society where everyone is afforded the same level of justice - social, economic and political, we will have to deliberate upon these uncomfortable questions staring our society and polity today.

As Expected: Pak JIT denies Pathankot Terrorists being Pakistani

This post featured in Blogadda's Tangy Tuesday Picks

NDTV has reported that Pakistan's Joint Investigating team, which came to India to collect evidence in the ongoing Pathankot Airbase Attack probe, has denied that the terrorists were pakistani. More from the Report:

"National Investigation Agency officials had briefed and accompanied the Pakistani team into the Pathankot air base on March 29. The team was also showed the route taken by the terrorists to enter the base.
Pakistani investigators said they could not collect evidence in this limited time, the news report said quoting sources.
The JIT returned yesterday after its five-day visit to India during which all evidence pertaining to the attack was shared with it. This included the DNA samples of four terrorists, their identities as well as call records showing involvement of Jaish-e-Mohammad or JeM terrorists."

What was Modi thinking?

Public opinion in India was overwhelmingly against allowing Pakistani JIT, comprising of officials from Pakistan's Inter services Intelligence (ISI) agency, to visit the attack site. The Indian National Congress and the Aam Aadmi Party, both reacted strongly to the development and termed the visit akin to ISI probing itself. Delhi Chief Minister Arvind Kejriwal blasted the move in the Delhi Assembly after the assembly had to be adjourned for half an hour due to massive protests by AAP legislators. Congress party volunteers protested outside the Pathankot Air force base against the visit. India has long held the position that it is Pakistani Intelligence, specifically the ISI, that has nurtured and bred Jehadis and terrorists through training camps spread all over their country in order to wage a proxy war against India. Despite the overwhelming negative feedback, the Prime Minister and the National Security Adviser, in a display of amateurish foreign policy bravado, decided to do the unthinkable and host the delegation in the country. As expected, Pakistan has once again played the time tested card of denying any involvement in the terrorist attacks, thus leaving egg on the government's face.

Backstabbing from the very start

Pakistani establishment had begun to show its true colors hours after the Pakistani JIT landed in India, when its officials claimed that they have catched a RAW spy in Baluchistan who was engaged in subversive activities. Inter Services Public Relations Agency (ISPR) made outrageous claims of the man being involved in harming the China Pakistan Economic Corridor with the Gwadar port as its target. The man later turned out to be an ex-navy official who no longer was associated with the Indian forces in any manner. Nevertheless, the relentless brandishing of the arrest as a major achievement by the Pakistani establishment even as the JIT was visiting India exposed the whole exercise as a mere pretence cloaked in a god cop bad cop script. 

Weakening of India's International Position

This blunder has gone beyond the diplomatic one-upmanship common in the bilateral relations of India and Pakistan and has weakened the position of India internationally with regards to the issue of terrorism emanating from Pakistan. Till now, India had refused to fall for the smoke screen of state versus non state actors put up by Pakistan to brush away responsibilities for the attacks. India had consistently maintained , especially after the attacks on mumbai in 2008, that the terrorists involved in attacks on India were sufficiently equipped, trained and provided necessary resources for carrying out the deadly operations by elements within the Pakistani state and that therefore the Pakistani government would have to own up responsibility for the same. 

By allowing Pakistani JIT to probe the attack site and then claim the obvious, the Prime Minister has foolishly allowed a precedent to be set where India impliedly seems to agree that non state actors totally divorced from any arm of the Pakistani state may be responsible for the attacks, therefore giving the Pakistani government, military and intelligence a clear chit. This is a blunder that can have wide ramifications in the future because Pakistan can bring up this disastrous decision again and again in the international fora to strongly claim that even the Indian government is unsure about the origins of terrorism wrecking its cities and military establishments.

Total Failure of the NSA

National Security Advisor Ajit doval, hailed as the superman of counter-intelligence in India, has so far monumentally failed to live upto the hype that his appointment had generated. Mr. Doval has so far engaged in empty theatrics when it has come to solving the Gurdaspur and Pathankot terror attacks, besides totally squandering the years of gains made under his able predecessors. His theory of "Offensive Defense", hailed in hawkish circles as the approach needed to tackle Pakistan, has so far remained a lame duck squatting on yellowing parchments in South Block rather than an actual policy implementable on the ground. Even during the pathankot attacks, he was heavily criticized for his decision to send in the NSG, instead of the regular forces better equipped with intelligence to handle the situation, which resulted in the tragic casualty of one brave commando. Of course, the Indian Army had to come to his defense.

Instead of utilizing the decade long diplomatic pressure built on Pakistan through hard work and international efforts, the NSA accompanied the Prime Minister on his cameo visit to Pakistan, thus breaking the draught of PM level visits imposed by India on Pakistan. MP Jyotiraditya scindia, while recently speaking in the Parliament, deplored the attitude of the Prime Minister regarding Foreign Policy which left most of the top level officials in the dark regarding the impromptu visit.

Modi should stop the PR, start being the PM

The Prime Minister's narcissism and vanity are not new found obsessions and have been well documented in the past. It seems that he is still in the election mode and is busy in managing his PR rather than manage affairs like foreign policy seriously as a PM. It seems that for him and his cabal, image building has become more important than nation building. This disastrous move has even silenced all the loud admirers of the PM into shame and has made them question the judgement and skill of their leader when it comes to important matters of diplomacy. It would serve the Prime Minister well if he stops acting like a know-it-all superman on matters galaxies beyond his questionable intelligence and tightens the leash on his National Security Adviser who acts like he is scouting for a role in the next James Bond movie. The Prime Minister should start listening to what his experienced and intelligent advisors advise him on matters of foreign policy rather than turning every bilateral meeting into a hug and selfie festival. If he does not start doing that soon, he may have plenty of followers on social media, but an even larger army of trolls in real life.      

A Timeless Tombstone - A Visit to the Taj Mahal

For Guruji Rabindranath Tagore, the Taj Mahal was a "teardrop on the cheek of time". However, a question that kept swirling in my mind as I went around the architectural wonder was "whose teardrops?" Were they the teardrops of a heartbroken king, accumulated over a decade, that resulted in this poetry in marble, or was it the teardrops of those thousands of labourers who worked to build this monument of their slavery? The Mughals and Marx frequently clashed in my mindscape as I inspected the hauntingly beautiful landscape as a part of the ordinary multitude.

It has been more than 5 years since I came to Delhi. However, circumstances had conspired so far to keep me from visiting this wonder of wonders which stands at a distance of only 3.5 hours from the capital. So, when I had to go to Vijaipur (my hometown) via bus because of the lack of train reservation, I made the most of the opportunity.

Here are some pictures from the visit.

P.S: What does it say about the fate of love in our times when all we care about is a 20 rupee ticket in the beginning and an ice-cream at the end? Where is the time for things such as reflection, commitment and poetry amid wailing children and scowling parents? :)