Take a break. The thread
of this series just got entangled with some current events. No doubt, the
judiciary is the topic of discussion here too.
On 20 March 2022 a celebrity
artist, Dr Neena Prasad, conveyed her agony, through a facebook post, on how
her dance program at a book release function, the previous day, had been
interrupted and had to be abandoned midway on the orders of a District Judge
staying close to the venue. The venue was a Government Lower Primary School,
where such programs, and even noisier ones, had been organized frequently in
the past. Many judges had occupied the official quarters nearby and some had even
gone on to be judges of higher courts too.
Legally speaking, the
organizers had all the necessary permissions, including the use of loud
speakers, to have the program till 9:30 pm, well ahead of the deadline
permitted for use of loudspeakers.
She had posed a very
pertinent question too: should artists
perform based on the unjust and unacceptable personal whims of judges and
bureaucrats? Poor lady, I must say, how far removed is she from the
realities of everyday life in India.
A few more pertinent
questions that arise are:
1.
Was it an
official order issued by the District Judge that was enforced with such alacrity?
2.
Did the District
Judge follow the procedure which any citizen has to follow to pursue a
complaint of nuisance due to sound of loud speakers?
3.
Did the police
follow the procedure they are required to follow on receipt of such a complaint,
given that it was they who had sanctioned the use of loudspeakers for the
program?
4.
Did the police
ever warn the organizers that the sound level was more than what was permitted?
Malayalees all over the
world came to know of this atrocious incident through online media on 22 March
2022 (https://www.onmanorama.com/news/kerala/2022/03/22/police-stop-dance-performance-noise-complaint-palakkad-neena-prasad.html). By evening, of the same day, English media too
posted reports of the incident at their online sites (https://www.thehindu.com/news/national/kerala/judge-draws-flak-for-stopping-mohiniyattam-show/article65246666.ece and https://www.indiatoday.in/india/story/row-in-kerala-as-police-stops-traditional-dance-after-judge-takes-offence-to-loud-music-1928550-2022-03-23)
A silver lining in the
whole despicable episode was the condemnation of the interference by the judge
by not only fellow artists and political leaders but also by the members of the
bar.
A report of 25 March 2022
at https://youtu.be/4HslmDRm8xk informed its viewers that the judge had explained
that it was not he who had objected to the program but his staff. But even the
reporter could not help expressing how it lacked credibility. The question also
arises as to who were this ‘staff’ working in the residence of the judge at 8
o’clock in the night.
Interestingly, this judge
is the brother of a retired high court judge, who had been going around
delivering provocative speeches against the Citizenship Amendment Act. The
video of one of his speeches, in Malayalam, can be seen at https://youtu.be/80rIASpi-Oc. I had, on 06 Jul 2021, sent an e mail to the Chief
Justice of the Kerala High Court bringing it to his notice. For those who do
not the language here are the main points he had made:
At 2.20 minutes he can be heard saying,
in the context of a question on whether the anti CAA agitation would end if the
apex court gave a ruling on it, that this
is not a matter to be decided by the court but it is an emotional subject and
the protest should continue till the Act is withdrawn. (My note: doesn’t it sound familiar? Remember Shaheen
Bagh, the Farmers’ Protest? And now, some comments after the Hijab verdict of
the Karnataka High Court?)
At 5.30 minutes he says that the aim of
the Bill (sic) is to give a false assurance to Hindus, Sikhs, Buddhists, Jains,
Parsi and Christians that the government is with them and to give muslims, an
unwanted class (according to him), that they are nobody. In effect, to create
polarisation based on religion.
At 11.30 he says that the inner line
permit is being used to divide the country by the current Union Government, (My
observation: the inner line permit has been in existence long before the BJP
had come to power in the Centre).
At 15.00 he blatantly lies that the
government has said that they will decide who amongst those who claim to be
citizens are actual citizens.
This
is not an aberration. Another report, dated 11 February 2022, again in
Malayalam, of this former high court judge speaking at a function organized by
Indian Muslims in Riyadh, Saudi Arabia is available at https://youtu.be/buz3tYHa1q0. The topic was ‘The role of Koran in Legal System’.
He can be seen explaining the concept of taqiyyah
and how and why to use it to mislead non-Muslims in societies where Muslims are
minorities.
Before I narrate one of my
experiences there is a need to recapitulate a bit of related history.
The Kerala High Court had
rightly banned bandhs long back as it infringed on the rights of the public to
move freely and carry on with their lives without being held to ransom by the
protestors. The apex court had also upheld this order and it had become the law
of the land. However, the perpetrators continued with the same bandh by simply
referring to it as hartal. The courts have remained mere spectators.
Some reports in the media
indicate there have been on an average 300 hartals per year in Kerala, mostly
localized but enough at the state level. Going by experience, even mere strike
at the national level gets enforced effectively only in Kerala. There was one
last year even when the nation was reeling under Covid. There was one,
panimudakku (or boycotting work) on 28-29 March 2022. While in the rest of India it did not adversely
affect normal life, in Kerala there were plenty of instances of violence by the
protesters and evidences are available in the video clips posted by citizens on
social media. Of course, we need not discuss the validity of the court orders
as we have seen how the apex court dealt with the anti CAA protests and
farmers’ agitation.
But in Kerala, the High
Court, while doing nothing against the violation of their orders holding bandhs
illegal, went one more step ahead and held that holding meetings on road sides or
processions on roads was also illegal. Thankfully, the court had also ordered
that places should be earmarked for protestors to vent their grievances
publicly, which has not been complied with till date. On this, a politician
commented that the judge was a dimwit and got 6 months in prison for contempt
of court.
However, what has been
implemented is a procedure to seek permission to hold meetings and use
loudspeakers. But how it has been implemented is even more questionable. One
has to submit an application with a prescribed fee to the local police
authorities almost a fortnight in advance. Mostly no response will be received
and the organizers can go ahead with their program without much ado. If
anything goes wrong the organizers will be hauled up for not taking due
permission. And here is where my experience begins.
Anti Corruption Movement
Kerala had a young and dynamic secretary, who had submitted an application, well
in time, for holding an event in a public place (not road side) after paying
the prescribed fee, for using mikes, in the treasury. 5 days before the event
he went to collect the sanction letter. He was informed that the application
was missing and advised to submit a fresh one. He took me along to pay the
prescribed fee in the treasury and submitted the application afresh. On the day
of the scheduled event he went to the police office to collect the sanction
letter. He was told that the file was with the Deputy Superintendent and that
since the officer wasn’t available in the office, he could go ahead with the
program. Left with no alternative he went about organizing the event.
I was an invitee as a
speaker. Presence of two police officers raised my hackles. I walked up to them
and enquired if there was any problem. I was told that since the organizer had earlier
created a scene in a function attended by the then Chief Minister, the youth of
the party were agitated and there was a need to ensure nothing untoward
happened.
As soon as the function
was over, two police personnel in mufti walked over to the secretary and asked
him if he had permission to use mike. He explained the situation. As if
preplanned, they then took the mike set to the police station, followed by the
mike set provider and the secretary. Another participant and I followed them.
After making us wait, the mike set was released by evening and all of us left
for our homes. Months later it was only when the secretary received summons
from the court, for all three of us, that we realized that the episode was not
over.
The court case carried on
for about 4 years before we were acquitted.
Meanwhile I pursued the
issue of sanction with the police authorities under the Right to Information
Act. The copy of the file noting I received shocked me. The application had
been rejected on the ground that the applicant was an accused in another case
(of protesting at the venue of the function attended by the Chief Minister).
Interestingly, the same civil society organization had been given permission
earlier when the applicant had been another functionary.
Another report that
attracted my attention recently was a post on Facebook. It said : 31 years later, killed Kashmiri Pandit’s
family moves court against Bitta Karate. The family of Satish Tickoo, believed
to be one of the first Kashmiri Pandits murdered by separatist Farooq Ahmad Dar
alias Bitta Karate, moved Srinagar court for status report on FIRs registered
against Karate. The court criticized J&K government for its inaction in
last 31 years. In a 1991 interview, Karate admitted to killing several Kashmiri
Pandits.
A quick search on Google
revealed a few more reports. The one at https://www.business-standard.com/article/current-affairs/sc-rejects-plea-to-probe-genocide-of-kashmiri-pandits-in-valley-in-1989-90-117072400316_1.html was titled ‘SC rejects plea to probe genocide of
Kashmiri Pandits in Valley in 1989-90’. The reason reported was that almost 27 years have passed and it will
be very difficult to gather evidences in cases of murder, arson and looting
which had led to mass exodus of Kashmiri Pandits from the Valley. The court
did not miss the opportunity to castigate the petitioner organization ‘Roots of
Kashmir’ in so many words: You
(petitioner) sat over it for last 27 years.
Possibly, encouraged by
the success of the movie Kashmir Files, Roots of Kashmir has filed a curative
petition in the apex court, as per the report at https://www.tribuneindia.com/news/j-k/kashmiri-pandit-organisation-moves-supreme-court-seeking-probe-into-1990-massacres-380373 and a Public
Interest Litigation has been filed by ‘We the Citizens’, as per the report at https://www.tribuneindia.com/news/nation/pil-in-sc-seeks-sit-to-identify-those-responsible-for-genocide-of-hindus-sikhs-in-j-k-381286.
Interestingly, the
dismissal of the original plea of Roots of Kashmir on 27 April 2017 due to
presumed difficulty in gathering evidence had forced the petitioner to quote a Delhi High Court order of 2018 in the matter of Sajjan Kumar,
convicted in a case related to the 1984
Sikh genocide in the national capital. The court had said: It’s important to assure those countless victims waiting patiently that
despite the challenges, truth will prevail and justice will be done...
One of these report also
informed the readers that the case
against Yasin Malik for alleged gruesome murder of four officers of Indian Air
Force on January 25, 1990 is still pending before a CBI court. Other
pertinent information culled from these reports is:
215 first information reports (FIRs) had
been lodged relating to the murder of over 700 Kashmiri Pandits and none of the cases have reached a
logical conclusion.
Hundreds of FIRs on murders of Kashmiri
Pandits during 1989-90, 1997 and 1998, are lying un-investigated by J&K Police even after expiry
of 26 years.
Need to transfer all such FIRs
pertaining to murders of Kashmiri Pandits, from J&K to some other state,
preferably Delhi, so that the witnesses, reluctant to approach police or courts
in view of their safety concerns, can freely and fearlessly depose before probe
agencies and courts.
Let me conclude this part
by quoting what I had written, in 2002, in an article titled ‘Democracy?… East
Is East And West Is West!’:
Rule of Law not Rule of Judges. The mainstay of any civilized society, leave alone a democracy, is the
rule of the law. For any law to be effective it should, first of all, be
simple, clear and unambiguous. The affected people should understand it and
imbibe it in letter and spirit. The need to go to courts to get interpretations
for each and every clause certainly doesn’t speak well of the competence of our
legislators. And worse, when the judiciary interprets the same law to mean
different, sometimes even contradictory, things under different contexts, the
public can only get confused and confounded, as they are now. In this context
it would be worth recalling that confusion had prevailed even in recognising
the preamble of our Constitution as an integral part of it! In 1961, the
Supreme Court had observed that ‘the preamble is not part of the Constitution’,
but in 1973, it held that ‘the preamble of the Constitution was part of the
Constitution and the observations to the contrary in Berubari Union case were
not correct’! Our present Union Minister for Disinvestment, Mr Arun Shourie,
has done yeomen service in compiling a number of intriguing cases in a book
titled ‘Courts and their judgments’. At the function held to release the book
he also made a tongue-in-cheek suggestion: that there should be a group of
scholars reviewing all sensitive rulings of the higher courts so that the
judges were also careful that their judgments were subjects to scrutiny!
P M Ravindran/raviforjustice@gmail.com/310322
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