Friday 1 April 2022

JUDICIAL PERFIDIES-14

 

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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