The India Cable: Disha Ravi Gets Bail but Indian Democracy is Failing Habeas Corpus Test

Plus: Modi plays CEC, trouble for BJP in UP bailiwick, RBI calls for fuel tax cut, SC pulls up govt on RTI petition, Indians work more for less, in talkative West Bengal, a salamander gives tongue

From the founding editors of The Wire—MK Venu, Siddharth Varadarajan and Sidharth Bhatia—and journalists-writers Seema Chishti, Sushant Singh and Tanweer Alam. Editor: Pratik Kanjilal

Snapshot of the day
February 23, 2021

Pratik Kanjilal

Despite police claims of her being a dangerous seditionist, a Delhi court today granted the 22-year-old environmental activist Disha Ravi bail in the so-called ‘toolkit’ case.

The police wanted to continue her custody in order to “confront” Disha with co-accused Nikita Jacob and Shantanu Muluk. But over exactly what is not clear as the police still haven’t said what laws the three of them broke by editing the ‘toolkit’.

While campaigning in Assam and West Bengal, the Prime Minister has announced when the state poll dates will be announced, inviting rich sarcasm. State leaders have asked if the PM is the Chief Election Commissioner. NDTV is carrying forward its observation from the 2019 general elections, that clubbing state events and political rallies may be financially beneficial for Modi ― the taxpayer could be footing part of the bill for party politics. Indeed, in West Bengal, the Prime Minister addressed a rally at the old Dutch town of Chinsurah and inaugurated a stretch of the Metro rail. These days, official government functions look like the ruling party’s election rallies. And the Central investigative agencies have, coincidentally, swung into action in various cases involving the Trinamool Congress.

The Chief Justice of India has ticked off a law student for addressing the court as, “Your Honour.” “We are not the US Supreme Court. Do not address us this way,” he said, and adjourned the case, which concerns the appointment of judges, for four weeks, “since you have addressed us incorrectly.” Indian judges are supposed to be addressed as “My Lord”, but surely this is an excessive punishment for a student who may have been binge-watching American courtroom dramas. 

Hitting back at Agriculture Minister Narendra Tomar for saying that crowds mean nothing, Bharatiya Kisan Union leader Rakesh Tikait said, “The minister says that mere gathering of crowds does not lead to revocation of legislations.” He added: “They have lost their mind. When crowds gather, governments get changed,” he told a farmers’ gathering in Sonepat. 

The government appears to be on the back foot on the farmer question, and has postponed changes in food and fertiliser subsidies. The farmers’ protest has prompted the Finance Ministry to indefinitely hold off proposed changes, fearing that these reforms would further alienate farmers and the poor

A 29-year-old man, Jaspreet Singh, who allegedly climbed one of the tombs of the Red Fort during the violence in Delhi on Republic Day, has been arrested. He was allegedly picked up from Jammu, and like Disha Ravi, brought to Delhi without transit remand.

The BJP has done very well in Gujarat local body elections and former Jammu and Kashmir chief minister Mehbooba Mufti was unanimously reelected president of the PDP for a three-year term. Nearly 1,100 people travelled between Banihal and Baramulla railway stations as train services resumed partially in Kashmir on Monday, after remaining suspended for around 11 months due to the Covid-19 pandemic.

Fuel prices continued to soar to new highs as the rates of petrol and diesel were hiked yet again on Tuesday. In Delhi, the price of petrol was hiked by 25 paise and diesel by 35 paise. In the national capital, petrol now costs Rs 90.83 per litre, and diesel is Rs 81.32 per litre. 

The Sensex tanked yesterday by 1,145 points, on profit taking apparently, and the India Volatility Index shot up by 14.5%. 

Former Union commerce secretary Rahul Khullar has died in Delhi. He was also chairman of the Telecom Regulatory Authority of India, and was sensitive to the danger of cross-media holdings leading to monopolies of opinion.  


Western UP unhappy with BJP

While Punjab and Haryana have been witnessing such scenes for months, saffron leaders are now facing resistance in the BJP’s bastion of western Uttar Pradesh as they try to reach out to their support base, especially rural Jats. The historic Sauram or Shoram village in Muzaffarnagar witnessed clashes between villagers and leaders/supporters of the BJP during a visit of Union minister Sanjeev Balyan. The police arrested the farmers, leading to a protest by local farmers outside the police station. They demanded the release of their comrades and wanted the BJP workers who had assaulted them to be arrested.


China back in favour

The Modi government will clear 45 investment proposals from China, which are likely to include those from Great Wall Motors and SAIC Motor Corp, following disengagement at Pangong Tso in Ladakh. About 150 investment proposals from China worth more than $2 billion have been stuck in the pipeline since last year. Companies from Japan and the US routing investment through Hong Kong were also caught in the Ladakh crossfire, because an inter-ministerial panel led by the Home Ministry had tightened scrutiny.

A report citing “national security planners” claimed over the weekend that the Indian and Chinese Special Representatives could meet soon to take forward the momentum generated by the disengagement at Pangong Tso in Ladakh and resolve the border dispute, but another report, citing “sources close to the National Security Advisor,” now claims that such a meeting is not in the offing. Meanwhile, the marathon 16-hour meeting between Indian and Chinese military commanders on Sunday did not lead to an agreement on Gogra and Hot Springs, both seen as low-hanging fruit compared to the other disputed areas of Depsang and Demchok. A former Director General, Military Operations, avers that the present disengagement process “can, at best, avert an immediate confrontation but not eliminate the possibility of a similar, or even worse, conflict in future.”


In some states, pandemic soars again

Haryana’s weekly count of fresh Covid-19 cases has jumped by 28% in two weeks in February, giving rise to worries about a fresh wave in the state after 12 weeks of a downtrend in infections. The waning Covid-19 pandemic appears to be taking a U-turn in India with an increase in daily cases to 15,000 in the last 24 hours, an indication that a second wave of infection is setting in. The Union Health Ministry says that the surge in active cases is due to a spike in the number of daily infections in Maharashtra, Kerala, Chhattisgarh, Punjab and Madhya Pradesh. Home Minister Amit Shah reviewed the Covid-19 situation across the country and the progress of the vaccination programme.


Government red-faced after ministers lent heft to Baba Ramdev drug 

After two ministers in Modi’s cabinet provided the supporting cast while Baba Ramdev talked up his so-called Coronavirus drug, the WHO made it clear that they had not approved anything, and the Ministry of Ayush on Monday clarified that Patanjali’s good manufacturing practices (GMP) certificate does “not vouch for the efficacy of the drug for any disease condition”.


Indians overworked and underpaid

Indian workers are among the most overworked globally but are not making much money. Gambia, Mongolia, the Maldives and Qatar (where a quarter of the population is Indian) are the only countries where an average worker works longer than an Indian worker, data from the International Labour Organization (ILO) shows. India had the lowest statutory minimum wage of any country in the Asia Pacific region, except for Bangladesh, in 2019. India’s minimum wages are among the lowest in the world, barring some sub-Saharan African nations, according to the 2020-21 ILO Global Wage Report.

With seven out of 10 workers in the non-farm sector in informal employment, seven out of 10 salaried workers in jobs with no written contract, and over half in jobs that give them no paid leave or social security benefits, changes to the new labour codes will at best provide some degree of flexibility to a small sliver of our overworked, underpaid workforce.


The Long Cable

A habeas corpus for Indian democracy

Sushant Singh

The release of Christophe Jaffrelot and Pratinav Anil’s book, India’s First Dictatorship: The Emergency 1975-1977 has brought the dark period of Indian democracy back into the spotlight. In discussions around that book, the question that has often been asked is if India is under an undeclared Emergency under the Modi regime. Ashutosh Varshney argues that “India today is closer to Indira Gandhi’s 1975-77 Emergency than ever before. There are, of course, two critical differences. Beyond Kashmir, there has been no mass arrest of politicians, and many more state governments are run by political parties that do not rule in Delhi.”

There are other differences as well, including the lack of widespread amendments to the Constitution. But this is the most significant and dangerous difference, to quote Jaffrelot: “The temporality of the two regimes is completely different: Mrs Gandhi did not consider that the Emergency was “the new normal”, and she withdrew it after 18 months. The Hindu nationalist movement has a long-term perspective and is changing India more than any other political force since Mahatma Gandhi’s Congress.”

The one case that “captures the Emergency as nothing else,” to use Granville Austin’s description, is the ADM Jabalpur or the Habeas Corpus case. Austin wrote that the case captured the extent of the Emergency, its testing of consciences, degrees of courage among lawyers and judges and its evocations of judicial philosophy. On April 28, 1976, the Supreme Court had to decide if the Court could entertain a writ of habeas corpus filed by a person challenging his detention. The High Courts had upheld the writs, but in a 4-1 judgement, the Supreme Court went against the unanimous decision of all the High Courts. This was the case which defined the Emergency, which the New York Times called close to the Indian Supreme Court’s “utter surrender” to the government.

Habeas corpus is a petition filed under Article 32 of the Indian Constitution, through which the Supreme Court can order the authorities to produce people before it to verify if they have been detained as per procedures established by law. Why does the habeas matter so much? The answer comes from the Supreme Court in the State of Maharashtra vs Bhaurao Punjabrao Gawande case: “The celebrated writ of habeas corpus has been described as ‘a great constitutional privilege’ or ‘the first security of civil liberty’. The writ provides a prompt and effective remedy against illegal detention. By this writ, the Court directs the person or authority who has detained another person to bring the body of the prisoner before the Court so as to enable the Court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detenu.”

After Indira Gandhi lost the elections, in a speech to FICCI on April 22, 1978, Justice YV Chandrachud, one of the four judges who delivered the judgement said, “I regret that I did not have the courage to lay down my office and tell the people, well, this is the law”. The point he made was about the law of the land not allowing a habeas corpus petition to be heard under the Emergency.

While the behaviour of institutions under a powerful executive has been painfully visible, the collapse has been difficult to calibrate precisely. With some statistics emerging about the treatment of habeas corpus petitions, it provides us with a litmus test of the health of a key institution.

As there is no declared Emergency in the country now, there is no reason for the habeas corpus petitions to not be heard on priority in the apex court. But as this RTI reply shows, there are 58 habeas corpus petitions pending before the Supreme Court. Not only that, 99% of habeas pleas filed before the Jammu and Kashmir High Court after the abrogation of Article 370 in August 2019 were pending for months. The most essential part of the habeas writ is the urgency attached to it: along with the right to life, liberty is the most precious of all fundamental rights and has to be saved from executive overreach.

Even when cases were heard last year like the Tarigami case, by allowing the petitioners to meet their friends and families in Kashmir, the Supreme Court did not remedy the violation of the right to liberty. If anything, the delay in ordering notices to the government seeking explanations for detentions allowed the authorities to sustain illegal detention. By not urgently hearing the habeas cases, the Supreme Court has simply failed to stand up for the constitutional values and principles that it is committed to uphold in a democracy. All executives try to overreach in their jurisdiction, but it is incumbent upon the courts to hold them in check. This is even more critical and essential when the matter concerns the rights to life and liberty, a test the Supreme Court has repeatedly failed in the last few years.

In 2017, Pratap Bhanu Mehta wrote a scathing piece which concluded with him telling the Prime Minister, “Your truth will not permit us to say it feels jolly close to an Emergency.” If habeas corpus petitions continue to be treated by the apex court in this manner, ‘jolly close’ will have lost its meaning.


Reportedly

The call from Reserve Bank of India governor Shaktikanta Das for reduced indirect taxes on petrol and diesel to contain fuel prices at a reasonable level won’t be music to the Modi government’s ears. Due to the high rates of cess and taxes imposed by the Centre, petrol and diesel prices in India have witnessed a steep climb over the last few days. This has led to protests by Opposition parties and embarrassed the ruling BJP.


Defence budgets enigmatic

The Indian defence budget is a mysterious thing, which is out of line with budget documents in other countries, and rife with elementary errors like claiming growth rates without setting baselines. Finally, someone tries to cut through the maze of “the riddle wrapped in a mystery wrapped in an enigma”. It helps that that someone, Amit Cowshish, is a former financial advisor (acquisitions) in the MoD. Meanwhile, a broader understanding of the numbers is available here.


Prime Number: Rs 4.89 trillion
The quantum of investors’ wealth wiped out on the BSE in five trading sessions in February 15-22, when the Sensex fell over 2,400 points on profit booking, mixed global cues and the sudden reversal in the ebb of the pandemic.

Supreme Court pulls up government on RTI

The Supreme Court has pulled up the Modi government for not filing a reply to a plea by Congress MP Jairam Ramesh, who has challenged the Constitutional validity of the Right to Information (Amendment) Act 2019 which gives powers to the government to prescribe the tenure, allowances and salaries of information commissioners. A bench of Justices DY Chandrachud and MR Shah told the counsel appearing for the Centre, who sought some time to file a reply, “One year has passed since notice was issued in the matter. What have you been doing all this time? What is wrong with you? This is an important matter.” 

The top court, however, gave two weeks to the Centre to file a reply.


Deep Dive

Culinary chauvinism

Why are Indians so preoccupied with what Nagas eat? Here’s a detailed examination of the politics of the game, including the outcry about the Amur falcon, and the eternal debate over dog meat, which dates back at least three generations. 


The salamander speaks out 

Unusual sounds in footage led documentary makers and scientists to discover rare behaviour in little-known amphibians. In a discovery reminiscent of a crime thriller, an unusual sound in a video soundtrack has led to the discovery that a rare species of salamander from the hill district of Darjeeling in West Bengal is capable of vocalising.


Op-Eds you don’t want to miss

  • Vibhuti Narain Rai writes on the emergence of an unwritten “new manual for the Madhya Pradesh police”, by which they are required to confer impunity upon Hindutva lawbreakers, despite knowing that they would create a law and order situation. 

  • How to be a good environmentalist in India. Neha Sinha cocks some snark at the state of play under the watch of Environment Minister Prakash Javadekar. 

  • If the stalemate over the three farm laws continues, there is a grave risk that saner voices will lose control of the protests to potentially militant elements. Vinod Sharma writes that the farmers must not return defeated to their villages. 

  • Anumeha Yadav on why the government ditched due process for trade union activists Nodeep Kaur and Shiv Kumar, who have already spent several weeks in jail.

  • Chaman Lal remembers Ajit Singh on his 140th birth anniversary. He spearheaded the Pagdi Sambhal Jatta movement in 1907 in protest against the anti-farmer laws enacted by the British rulers. Over a century later, the movement has found resonance amidst the ongoing farmers’ agitation.


Listen Up

Stephen Alter talks about his book Wild Himalaya: A Natural History of the Greatest Mountain Range on Earth in the context of the Uttarakhand floods. He discusses what the history of the mountain range tells us, lessons we can learn from past disasters and the impact of construction and tourism on the mountains.


Watch Out

The people of Tamil Nadu may not know the price of political loyalties in neighbouring Puducherry, but they certainly know the price of gas at home. A couple recently got an LPG cylinder and petrol as wedding gifts in Tamil Nadu. Unsubsidised LPG prices have hit the Rs 900 mark in the state.


Chaatwallahs’ fight club

A trial of strength between competing chaat shops in Baghpat, in wild western Uttar Pradesh. 

The men of action present a different picture later, soothed by the compelling ambience of the lockup. 


That’s it for today. We’ll be back with you tomorrow, on a device near you. If The India Cable was forwarded to you by a friend (perhaps a common friend!) book your own copy by SUBSCRIBING HERE.