The India Cable: Personal Liberty Cases Test ‘Ramshackle’ Judiciary

Plus: Delhi wants to end border standoff before hosting BRICS summit, only 10% health workers take 2nd Covid shot, farm leaders to tour country, oldest known living animal found in Bhimbetka

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

The Long Cable

Supreme Court must step up if democracy is to survive

Seema Chishti

A 22-year-old has been despatched to five days in police custody under charges of sedition for making two edits to a ‘toolkit’ to amplify the farmers’ protest. Greta Thunberg’s much-admired organisation, Fridays for Future’s conscientious member Disha Ravi, in pursuance of the wishes of an insecure and increasingly paranoid state, was flown directly to Delhi from Bengaluru and an activist close to her told journalists that her family and lawyers are being kept in the dark. “She was picked up for questioning. The family was also told she was being taken for questioning. But she has been taken to Delhi and shown an arrest warrant,” the activist said. She was not provided with a lawyer, and produced in court without a transit remand.

The key institutional pillar in this case, mandated to prevent a travesty of justice, is the judicial officer in Delhi’s Patiala House, where Ravi was produced. That the officer found it fit to agree to police remand speaks volumes about the signals that he and his colleagues found in the philosophy of the top court. Spool back some days to Madhya Pradesh, where a Supreme Court order was not enough to ensure the release of stand-up comic Munawar Faruqui, and the chief judicial magistrate of Indore had to make a telephone call at night to the jail authorities. He had been imprisoned for 36 days, for not committing an offence. That, like the case of Disha Ravi, had spoken loudly about what judicial officers think is in conformity with the judicial zeitgeist in India. These cases involving personal liberty are more than comments on the philosophy of the Supreme Court. These are tests. The Supreme Court must pass them.

Last week, The Washington Post published a story about letters found on an activist’s computer, which the police had presented as key evidence in the Bhima-Koregaon case in 2018, in which activists, lawyers, intellectuals and trade unionists are behind bars. They are accused of having tried to conduct “a Rajiv Gandhi-style” assassination of Prime Minister Modi, but a leading US-based forensic authority says that it is the most flagrant case of doctored digital evidence they have ever seen. But the courts had opined that material on two computers was enough to suspend the right to liberty without further enquiry. When five leading academics and public intellectuals approached the Supreme Court seeking an independent probe, the majority verdict read: “This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated.” 

After the report by Arsenal Consulting (a firm founded in 2009 which has been part of the investigation of high-profile cases like the Boston Marathon bombing), the picture has changed dramatically. The firm found that an attacker used malware to compromise a laptop belonging to activist Rona Wilson before his arrest and deposited at least 10 incriminating letters in a hidden folder. It was never opened by Wilson, perhaps because he did not know of its existence, and the documents were composed in a version of software well ahead of what Wilson was using.

The notable dissent of Justice DY Chandrachud in the case in 2018 laid out all that was wrong with the process, and raised serious questions: “The investigation commenced as an enquiry into the Bhima-Koregaon violence. The course of the investigation was sought to be deflected by alleging (in the course of the press briefings of the police) that there was a plot against the Prime Minister. Such an allegation is indeed of a serious order. Such allegations require responsible attention and cannot be bandied about by police officers in media briefings.” Police officers had only alluded to the involvement of those arrested. They had not made a water-tight case at all, yet bail has never been sanctioned.

The first matter of concern is that of late, the Supreme Court has been quick to take suo motu cognisance. A child’s letter to the Chief Justice of India on the participation of children in the anti-CAA/NRC protests, which were on in the capital at the time, and two tweets by a senior advocate at the Supreme Court involving images of the Chief Justice in his hometown, had drawn immediate responses. The apex court must similarly respond to news of Disha Ravi and the stand-up comic Munawar Faruqui, and fresh information in the Rona Wilson case. If this is not good enough for suo motu, what is?

Secondly, while the Supreme Court is failing to act on the Washington Post report and the case in which Disha Ravi is involved, it has held “personal liberty” to be of utmost importance (and rightly so). While hearing Republic TV owner Arnab Goswami’s petition in November 2020, the court’s two-judge bench had asserted that “if we don’t interfere in this case today, we will walk on a path of destruction.” It heard the matter urgently and granted interim bail, though a lower court was in line to hear it, because Goswami’s personal liberty was at stake. But it did not apply the same principle after that, when Bhima-Koregaon detenu Sudha Bhardwaj sought bail on health grounds. Different standards suddenly came into play, and she was asked to apply for regular bail. The rule of law cannot be about rule by law, applied selectively.

Modern democracies rely on institutions to remain democracies. Cases like Disha Ravi’s and Munawar Faruqui’s, and significant revelations like the one about doctored evidence by The Washington Post, are vital tests of these institutions and, by implication, of our democratic health. The Supreme Court must step up and play by a toolkit that strengthens our democracy. Saying “pass” would amount to exercising a choice to stand by and watch the death of democracy.


Snapshot of the day
February 15, 2021

Pratik Kanjilal

It doesn’t add up: a 56 inch government has arrested a 22-year-old girl concerned about climate change for editing two sentences of a Google doc, by her own admission. It fears that she is the lynchpin of a conspiracy to rekindle the Khalistan movement, and a court has sent her to jail without due process. No transit remand was sought by the police to bring her to Delhi from Karnataka. And she was presented before a magistrate without a lawyer of her choice. Civil society organisations see Disha Ravi as collateral damage in the government’s attempts to delegitimise the farmers’ movement, in which people from Punjab took a leading role. The purpose of a witch hunt is to remind all that anyone can be accused of witchcraft, with little or no evidence, and its objective is a docile society.

At a time when Indian democracy appears to be faltering, it has lost a champion. Justice PB Sawant, who had worked for rights and emancipation, has died at the age of 90, following a cardiac arrest. After retiring from the Supreme Court, he had served on the Indian People’s Tribunal investigating the Godhra incident and the ‘riots’ which followed in Gujarat. He was also chairman of the Press Council of India and had served as co-convener of the first Elgar Parishad. In an interview in December, he spoke of the failure of institutions and the state of the press.  

Underscoring the link between the jawan and the kisan, protesting farmers held special meetings to mark the tragic death of more than 40 CRPF jawans at Pulwama two years ago.

Congress leader Rahul Gandhi has been attending election rallies in Assam. He said the Congress would never implement the Citizenship (Amendment) Act in the state if voted to power. He also said, “I have devised a new slogan for Assam ― Hum do, humare do; Assam ke liye humare aur do, aur sab kuchh loot lo.” Gujarat Chief Minister Vijay Rupani collapsed during a rally in Vadodara yesterday and was rushed to a hospital in Ahmedabad. It was his third rally of the day, and he has tested Covid-positive since. 

An official has said that the pandemic may impact the goal to “double farm incomes” by 2022. In the last year of its mission to double farmers income, the Centre admits that no actual assessment of incomes has been carried out since 2013. Therefore, no baseline exists.

In the case of jailed trade union leader Nodeep Kaur, the Punjab and Haryana High Court has finally sent a notice to the Haryana government on her “illegal confinement”. The court took suo motu cognizance of complaints it received on the arrest. 

Earlier this month, there were reports that the government could push its proposed cryptocurrency law through an ordinance. The implications for holders of Bitcoin and similar currencies is not clear, but traders, exchanges and investors seem to be expecting a blanket ban. A brain drain out of India to jurisdictions which regulate digital currencies is also anticipated. And the Ministry of Road Transport and Highways has decided that all lanes in fee plazas on national highways shall be FASTag lanes from midnight tonight. Vehicles without a valid FASTag will have to pay double.

With 266 Test wickets, Ravichandran Ashwin is now second only to spin legend Anil Kumble’s 350 wickets taken in India. He went past Harbhajan Singh’s 265 wickets on Sunday, with an apology to “Bhajju-pa”.

Home Minister and former party chief Amit Shah plans to form a BJP government in Sri Lanka and Nepal, the Tripura chief minister has revealed. Biplab Kumar Deb on Saturday said that the Union Home Minister has plans to establish BJP governments in the two neighbouring countries. It is unknown what the Maoists and Mahinda Rajapaksa think of this. Deb is a serial provider of mass entertainment. Earlier, he has said that the internet was in use during the Mahabharata war, and that civil engineers are suited by training for the civil services. 


What a gas! 

The price of liquefied petroleum gas domestic cylinder in Delhi was raised by ₹50 per unit on Sunday, the third increase in LPG rates since December 2020. The new price of ₹769 per 14.2 kg LPG cylinder will be applicable in the national capital from midnight today.

Meanwhile, the transporters’ body has announced that it will go on strike over diesel prices, and seek a resolution of GST-related issues. The All India Motor Transport Congress has given a 14-day notice to the Centre. It represents about 95 lakh truckers and about 50 lakh bus and tour operators


Farm leaders to tour India 

Agitating farmers continue to up the ante against the government. Addressing a farmers’ mahapanchayat in Karnal, Bharatiya Kisan Union leader Rakesh Tikait on Sunday said the 40 leaders spearheading the agitation against the Centre’s farm laws will tour the whole country to drum up support for the stir. “Until the government decides in our favour, talks to the committee (spearheading the agitation) and agrees to the demands, we won’t let it be at peace,” he said.  

The Samyukt Kisan Morcha made a strong statement against the arrest of 22-year-old climate activist Disha Ravi, whom the Delhi police has named as the ‘key conspirator’ in the Greta Thunberg toolkit matter. The farmers have demanded her immediate release. The police had filed an FIR against persons unknown on February 4.

In callous remarks about the deaths of farmers during the protest, Agriculture Minister in Haryana’s BJP government JP Dalal on Saturday said they would have died even if they had stayed back home. He tried to backtrack following a storm, but farmers remain angry.


Pulwama was a lapse, Abdullahs under house arrest again

A year-long investigation by Frontline finds that the Pulwama terror attack happened despite two successive actionable intelligence inputs. It reveals that between January 2 and February 13, 2019, a series of intelligence inputs were shared with various authorities responsible for maintaining internal security, all pointing to an impending fidayeen strike as part of the Jaish-e-Mohammad’s ‘Qisas mission’. At least two inputs carried details of the terror module led by Mudasir Ahmed Khan, which eventually carried out the Pulwama attack on February 14, 2019. At least 40 CRPF jawans died in the attack two years ago. 

There seems to be little improvement in the security situation. The Jammu and Kashmir Director General of Police has said that the terrorist group JeM is planning attacks in Delhi with weapons sourced from Bihar. DGP Dilbag Singh made these revelations in a news conference about the arrest of two militants.

Meanwhile, on the anniversary of the attack yesterday, former Chief Ministers Farooq and Omar Abdullah were again placed under house arrest for undisclosed reasons. The “systematic violations of human rights in Jammu and Kashmir” that started from the abrogation of Article 370 on August 4, 2019, has “continued till date,” notes a report by the Forum For Human Rights in Jammu & Kashmir. The forum includes noted academics and rights workers like Justice Madan Lokur, Radha Kumar, Nirupama Rao, Shantha Sinha, Air Vice-Marshal Kapil Kak and Ramachandra Guha.


Judiciary “ramshackle”, says former CJI, who should know 

At least two senior politicians, Sharad Pawar and Shiv Sena’s Sanjay Raut have expressed alarm at Ranjan Gogoi, former Chief Justice of India and now nominated Rajya Sabha MP, calling the judiciary “ramshackle”. Gogoi used the descriptor when asked if he would sue TMC MP Mahua Moitra for saying in Parliament that he had been unfair in presiding as a judge in his own case of sexual harassment. “I had read that PM Narendra Modi in a meeting with Supreme Court judges praised the country’s judicial system. Obviously, we all felt happy about it then. So, the former CJI’s statements were indeed startling and a matter of concern for all. Was Mr. Gogoi, who has been nominated to the Rajya Sabha, trying to tell the truth about the judiciary with his remarks?” asked Pawar. Raut said that it would have been useful if Gogoi had provided “instances” of judicial ramshackleness.


Reportedly

The government hopes to give the impression of having resolved the military standoff between India and China within the “next two or three months” in order to create a conducive atmosphere for Prime Minister Narendra Modi to host Chinese President Xi Jinping at the BRICS summit this year. BRICS – the bloc comprising Brazil, Russia, India, China and South Africa – held its last annual summit virtually on November 17, 2020, because of Covid-19 restrictions, with Russian President Vladimir Putin chairing it from Moscow. Eyebrows are raised about India’s unseemly anxiety to somehow ensure that the standoff is seen to be over. The PM is yet to even name China as the aggressor, and its ambassador has never been sent a demarche. After announcing disengagement, the government had to issue statements saying that no territory had been lost. Former defence minister AK Anthony yesterday alleged that India has surrendered to China. The deaths of 20 Indian soldiers and the tension with China has damaged Modi’s personal stamp on Indian diplomacy, and undermined the Vishwaguru spin.


Prime Number: 1/10
Only 1 out of 10 recipients of the Covid-19 vaccine have taken the second shot after four weeks. A large proportion of that number are health workers, who should know what they’re doing. About 23,628 healthcare workers inoculated themselves with the second dose of the vaccine on February 13, according to data from the Health Ministry.

Deep Dive

Hate speech in 2019 elections 

In an important paper on hate speech during the 2019 polls, Kiran Garimella, Punyajoy Saha, Binny Mathew and Animesh Mukherjee find that hate speech was used to polarise along religious lines and relied on stoking fears. The researchers say that this has implications for content moderation. “There are no easy answers and [this] could easily lead to free speech issues if not done well. But it’s not something to be swept under the rug. We’ve seen what could happen in Myanmar. It could happen in India, if not properly handled.”


Documenting hate in UP

When a team of journalists set out to explore the politics and the human cost of so-called ‘love jihad’ claims by the state and sections of society in West UP,  all they found “was an organised hate campaign and a deep nexus between vigilantes, police and lawyers who are harassing young couples in the name of faith.” A telling documentary on generating hate out of inter-faith love.


Living fossil in Bhimbetka 

Researchers have discovered three fossils of the oldest known living animal — the 550-million-year-old Dickinsonia — on the roof of the Bhimbetka Rock Shelters, about 40 km from Bhopal, a UNESCO heritage spot. “The discovery of Dickinsonia in India allows assessment of biogeographic provinces and plate tectonic reconstructions for the late Ediacaran. The fossils are identical with Dickinsonia tenuis from the Ediacara Member of the Rawnsley Quartzite in South Australia,” says the paper in Gondwana Research, where this discovery has been revealed.

(Via Gondwana Research, May 2021)

Op-Eds you don’t want to miss

  • Mukul Kesavan writes that cricketer Wasim Jaffer shouldn’t be in the dock, trying to defend himself against defamation. The officials of the Cricket Association of Uttarakhand who defamed him should be suspended for bringing the game into disrepute.

  • Ashutosh Bhardwaj writes on Arshia Sattar’s latest work on the Ramayana, the moral questions that are raised in the treatise, and the difference between what is right and what is just. 

  • Vivek Kaul argues that the RBI should carry out an asset quality review of banks (and non-banking finance companies) and force them to come clean on their bad loans, because a problem can be solved only once it has been identified, quantified and acknowledged.

  • In the age of defaming media, of which NewsClick is the most recent victim, the Emergency cannot be the touchstone for measuring the perils journalists face, writes Aijaz Ashraf.

  • Yamini Aiyar writes that the shifting political economy underlying the policy choices made at the peak of pandemic and in its aftermath in the Budget, suggest that scars of structural inequality in India will deepen in the years to come.


Listen up

Speaking of the weather

As dams burst in the hills and the government becomes increasingly paranoid about climate change ― those trying to fight it, that is ― a podcast on the climate emergency and glaciers in the Himalayan region, acquires fresh relevance. Independent environmental journalist Sharada Balasubramanian talks to Arindan Mandal of JNU’s School of Environmental Sciences and Mohammad Farooq Azam, a glaciologist and professor at IIT, Indore.


Watch Out

Neighbourhood watch

Sushant Singh (a contributor to The India Cable) speaks at Manthan on India’s neighbourhood ― the challenges, the mistakes made, what India must do and what it must do better.


Tailenders

The parents are the villains in Namaste Wahala, a unique portrayal of an India-Nigeria romance. The mutual attraction between the Indian Raj (Ruslaan Mumtaz) and the Nigerian Didi (Ini Dima-Okojie) is guaranteed, “if not by the stars, then by the smart minds that decided to engineer this inter-racial romance and target two markets at the same time”.

US President Joe Biden spoke to Samir and Neal, two Indian-origin entrepreneurs who run the Indian food shop NaanStop in Atlanta, Georgia. 

SpaceKidz India, which popularises space science among students, is sending its first nanosatellite into orbit, carrying a copy of the Bhagavad Gita, a picture of Prime Minister Modi and a list of the names of 25,000 people, apart from scientific payloads. Well, why not? Why should Elon Musk have all the fun, hurling automobiles into space just for the heck of it? 


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.