Archive for Asia and the Pacific

A State’s Responsibility in an Epidemic: Human Rights and the Coronavirus Outbreak

Guest Contributors Bodhisattwa Majumder and Devashish Giri are penultimate year students at Maharashtra Law University Mumbai. Their interests include Constitutional Law, Public International law and Maritime law. Any discussion related to the paper can be made via mail at bodhisattwa@mnlumumbai.edu.in or Giridevashish15@gmail.com

The outbreak of Coronavirus or COVID-19 (“Coronavirus”) from Wuhan, China (“People’s Republic of China “) has engulfed as many as twenty four countries across the globe with a medical emergency and has claimed more than 3,800 lives as of now. 

This strain of the virus is graver than the other types of Coronaviruses as it has never been identified in humans before. Coronavirus belongs to the zoonotic group of viruses which can affect a human being with a range of health ailments ranging from the common cold to serious problems such as Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV). The World Health Organization and other countries including the US have declared it as a “Global Public Health Emergency”.  In order to restrict the transmission of the virus, however, China has taken various restrictive measures which have caused serious human rights violations including but not limited to arbitrary censorships, lockdowns, quarantines, police suppression, and mass detentions.

In outbreaks of viruses with communicable properties, response time in communicating information and alerting the public and world about the dangers of the virus is of the essence. Even a delay of a month can have a huge impact; in the absence of proper information, crowded public places act as the hub for transmission. 

Early on in the outbreak of Coronavirus, citizens of China were deprived of their freedom of expression and free speech. The Wuhan province was under strict observation by the Chinese government, and any information related to the outbreak was termed as mere “rumours” and prohibited from being shared across any social media platform. There were numerous reported instances of police suppression when doctors, nurses and other associated personnel working in the frontlines faced strict penal measures by the police on grounds of spreading the information related to the virus.

 It was only due to a brave whistleblower, Chinese Dr. Li Wenliang, who risked his own safety and livelihood to spread news of the outbreak in Wuhan to his alumni peers via WeChat, that the world was able to learn about this dangerous phenomenon that China had tried to keep under wraps. He sent his message on December 30, and China alerted the World Health Organization (WHO) about its outbreak on December 31. Since January 1, researchers have learned that China has been censoring WeChat accounts for words related to the Cornonavirus, blocking certain combinations or anything negative towards President Xi Jinping.  Furthermore, China placed the entire affected province under lockdown without any prior notice, which deprived the residents any chance to ensure the availability of basic amenities of life such as food and medicine. Such a measure has affected vulnerable populations of society, including those with disabilities, illness, and the elderly and deprived them of their essential needs. These are direct violations to their right to health. There has been a mass-quarantine process of millions of people for the cause of limiting the spread from the city of Wuhan. Any offering measure by any section of society be it, Lawyers, Activists or Artists, has been prohibited, censored, threatened and harassed by the organs of the government. Despite having strict regulations against discrimination regarding communicable diseases, the machinery has apparently failed.

Coronavirus has not limited itself to Chinese province and other South-East Asian states have been affected, although not every state has adopted measures which violate human rights. Amidst the Chaos, the approach of Singapore has been a silver lining, which has won praises for its benevolence and informative approach rather than an authoritarian one. Singapore’s approach has been direct and effective to reduce panic, rumours and conspiracy theories, aligning itself correctly with the statement of the Prime Minister which was posted on social media in three languages, “Fear can do more harm than the virus itself. The speech alone was proven effective as the following weekend witnessed a reduction in crowds in the city-state. The Singaporean approach included prevention, contact tracing, quarantine and access to information. Singapore’s official website of the Ministry of Communications and Information provided useful and practical advisories on topics such as ‘When to See a Doctor’, ‘What happens to suspect cases’ and ‘How to practice good personal hygiene’. The approach of Singapore prioritized the welfare and safety of citizens over political stability and economic costs, which won praise across the world. Singapore was among the most affected regions of Asia (Orange alert). Still, it chose to inform its citizens rather than bury the situation. The constant live news coverage, transparency about developments, and inclusion of health workers in planning has proved to be effective in controlling the situation and reducing  panic among citizens. 

Public International Law dictates that regardless of a health emergency or an epidemic, the measures taken to affect human rights should be legal, necessary, reasonable and proportional. Every measure must be recorded in evidence and there should be strict adherence to the procedure prescribed. An undemocratic regime leaves no scope for a consequence to the state for failures in terms of epidemic response and as a result, there is no accountability from the state. The people residing in affected areas are shunned out without any scope for the expression of dissent or discontent or even a cry for help from the international community. Human rights cannot be allowed to be violated under the garb of a health emergency and every nation should take a lesson from the incident of the Coronavirus outbreak. The priority of taking measures to restrict the outbreak lies in equal pedestal with the significance of following due process without depriving the people of their human rights. The international community needs to take a stand, and every response from a government during the outbreak of an epidemic or a pandemic must be within the four corners of human rights.

Non-Violence in Communal War in Central Nigeria

By James Courtright, Staff Writer for RightsViews

On January 30th Dr. Jana Krause came to speak with students and faculty at Columbia’s School for International and Public Affairs about her new book, “Resilient Communities: Non-Violence and Civilian Agency in Communal War.” Her work centers on communal conflict – non-state armed conflict between identity groups – in Plateau state in Nigeria and Maluku province in Indonesia. In both places the violence tended to be simplistically referred to as Christian against Muslim, but upon further investigation she found it was deeply rooted in local political and economic dynamics and narratives. After explaining how communal violence was organized, she then delved into neighborhoods in Nigeria and Indonesia where violence did not occur, analyzing how the choices of civilians and their collective efforts to prevent fighting saved the lives of hundreds of people.

Conflict in Jos

When she first visited Jos, Nigeria in 2010, Dr. Krause had to pass through multiple checkpoints along the road from the capital Abuja before entering a city where half-destroyed houses lined the streets and every major traffic junction was accompanied by a heavy military presence. As she started comparing her interviews with journalistic accounts, data sets, and human rights reports she realized that conflict in the city of Jos and rural Plateau State claimed more than 7,000 lives between 2001 and 2010. This violence, she concluded, was not sporadic clashes – it was war.

Dr. Jana Krause. Photo from her website.

Dr. Krause builds on the work of political scientist Stathis Kalyvas, whose work has advanced the idea that what civilians do in conflict matters. Unlike the journalistic shorthand of “neighbors killing neighbors,” she explained, violence is usually perpetrated by militias formed in surrounding neighborhoods. These militias would mobilize after hearing rumors that their perceived enemies were arming themselves, and then travel to where they believed clashes were occurring or where they had planned to attack. When they arrived in other communities, some residents there would collaborate with militias to identify “the enemy” based on their identity or hyper local grievances. Thus, communal violence results from rumor, threat assessment, mobilization and information sharing, grievances linked to previous violence, and local conflicts.

After delving into these dynamics, she began asking if residents knew an area that was vulnerable and religiously and socio-economically mixed, but where violence did not occur. She was pointed to Dadin Kowa, a community that sits in the southern suburbs of Jos. As she spent more time with residents of Dadin Kowa, she came to better understand how they managed to maintain an uneasy and tense peace while thousands of people were being killed or forced to flee their homes in surrounding neighborhoods.

How to avoid or forestall violence?

While many community leaders across Jos strove to avoid violence during this painful decade, Dadin Kowa’s leaders were arguably the most successful. One of the main reasons for this, Dr. Krause argued, was that both Christian and Muslim community leaders and everyday residents painstakingly created a broader identity as ‘being a resident of Dadin Kowa’, overcoming the fractious Berom Christian and Muslim Jasawa political agendas. From early on there was a tacit agreement, and later a more formal one, between religious leaders that they would preach to their respective congregations to avoid violence. People were still politically polarized, but when it came to violence, leaders constantly stressed a deeper fealty to their shared humanity and their neighborhood of Dadin Kowa.

Women’s groups also played a key role. At one point, tensions at the market became so serious that women began to travel out of the neighborhood to buy their vegetables and staples from their own religious group, dividing the community further. As tension at the market became a serious hindrance in their lives, women across the religious divide began meeting and sharing their stories, fears, and aspirations. As Dr. Krause writes in her book these meetings “fostered determination that their neighborhood would not be devastated by clashes.”

However, creating a unifying identity was not enough in and of itself. Dr Krause pointed out how civilians consolidated social control of the neighborhood. Women’s groups and other informants would pass information about suspicious activities or rumors to community leaders, who at times used open threats and even violence against people in the community to maintain order.

Young men in the community were told that under no circumstances were they allowed to go and fight with groups outside the community, and at the first sign of trouble they should return home. A clear communications network was built by community leaders so whenever trouble appeared on the horizon leaders on both sides of the religious divide could call and coordinate their actions to calm tensions. Mixed youth patrol groups were even created to guard the neighborhood and coordinate with the military and police.

In addition to dense networks built within Dadin Kowa, to deter attacks leaders in the community engaged in extensive negotiations and coordination with leaders in neighboring communities as well as the police and military. They even paid thinly veiled bribes to facilitate good relations and regular police patrols. For example, some of the women’s groups cooked lunch for the soldiers in order to maintain good relations. Both Christian and Muslim community leaders from Dadin Kowa went to mosques and churches in neighboring suburbs of Jos and publicly presented their agreement not to fight in Dadin Kowa.

In at least one case violence was averted by the actions of a single individual. In January 2010 when two external Christian militias threatened Dadin Kowa a community leader identified as Timothy in Dr. Krause’s book went out and single handedly negotiated with the militias, telling them that they would not be allowed into the neighborhood and no one would collaborate with them. He slowed their advance until they could hear the gunshots of the military nearby, and the militia turned around without harming anyone in Dadin Kowa. Timothy had lived through the Nigerian civil war in the 1960s and understood the dynamics of how violence happened and how and when to intervene.

In some cases, peace was only maintained with the credible threat of violence. One of Dr.  Krause’s interviewees, a Christian resident of a nearby neighborhood identified as Abraham, revealed that not only was the agreement not to fight in Dadin Kowa well known outside the neighborhood, it was also understood that the agreement would be enforced with violence. “If the boys from outside want to overcome them, then the Dadin Kowa boys will fight them,” Dr. Krause quotes Abraham saying in her book. “If you go there to fight, they will kill you. That’s the agreement.”

However, Dr. Krause stressed that Dadin Kowa was not an oasis of harmony during these episodes of violence. The community was tense as people fleeing violence sought refuge and leaders struggled to exert control over rebellious youth. Tensions within women’s groups over rumors and unfair burdens of labor also created problems. In some cases, as in the January 2010 episode mentioned previously, people in Dadin Kowa agreed it was the fateful intervention of a single person which averted catastrophe.

What can Dadin Kowa teach the world?

After her presentation Dr. Krause was asked about the implications of her work for practitioners. She responded by saying that we need to complicate the “islands of peace” idea that non-violence is isolated from outside forces. Instead, she pointed out, Dadin Kowa was deeply enmeshed in the conflict environment and political dynamics. The leaders of Dadin Kowa who were most effective at averting violence were those who understood exactly how the violence was organized because they had seen it before. Before foreign organizations rush in to “sensitize” people about conflict dynamics, she continued, it is important to recognize that foreigners arriving and starting programs has its own political and economic implications for the community and its neighbors.

While her findings from Nigeria and Indonesia shared some basic similarities, Dr. Krause stressed that knowledge of local contexts should be foremost in the minds of outsiders seeking to work on these issues. She concluded her talk by pointing out that in both Dadin Kowa and Indonesia non-violence is less connected to pacifist attitudes but a desire to survive and partly results from direct threats of violence and coercion against those most likely to engage in killings. Acknowledging this uncomfortable reality is essential in designing local and international peace building efforts.

Is Tolerance of Human Rights Abuses out of Fashion? A Cautionary Tale for Retail Giants

By Kelly Dudine, staff writer at RightsViews

In a Bangladeshi garment factory, a woman works seven days a week, morning to night, and still cannot afford to feed and clothe her children at home. In India, young women working in cotton mills face appalling work conditions, low pay, violence and exploitation.

This is the cost of fast fashion, poorly regulated labor markets, and ultimately, the tolerance of human rights abuses by the business community. 

However, shifts in public opinion, consumer behavior, and investment strategies are testing business-as-usual more than ever before. The bare minimum is no longer enough – the rules are changing and the business community will need to make drastic, meaningful changes in order to adapt.

The recent filing of bankruptcy by Forever 21 is a strong cautionary tale to all retail giants. The company has been in troubled waters for years. It expanded too quickly and carelessly, and faced lawsuits and accusations of worker exploitation. Despite the adaptation of a social responsibility policy, which outlined sustainability goals including worker health and safety, the company made no improvement in human rights standings over the years. In the annual Ethical Fashion Report, which looks at criteria including living wages, forced labor, child labor, and worker empowerment initiatives, Forever 21’s overall score continued to decline, dropping from a D+ in 2017 to a D- in 2019. For a company whose consumers are largely young women, these allegations are particularly damaging, contributing to a loss of consumer interest and falling foot traffic.

Forever 21 is not alone in these challenges, and the entire fashion industry should take note. Millennials are increasingly buying with their values and Generation Z views consumption as a matter of ethical concern. According to eMarketer, 74 percent of millennial respondents expect brands to take public stands on important social values. To increase consumer markets and customer loyalty, brands should be implementing social initiatives that support and empower their workers in all sectors. 

Money managers, too, are increasingly investing based on ethics and sustainability, using the Environmental, Social and Governance (ESG) criteria to screen potential investments. These criteria look at issues that were not traditionally included in financial analysis, like a corporation’s treatment of workers, but are now understood to have significant financial relevance. According to Forbes, the use of ESG criteria and efforts to achieve corporate sustainability are associated with better financial results.

According to the latest report from the US SIF Foundation, investors used ESG criteria in portfolio selection equaling $11.6 trillion in US-domiciled assets in early 2018, which is a 44 percent increase from just two years earlier. The report also shows that assets managed with human rights criteria were one of the leading priorities at $2.2 trillion. With more money managers moving their investments to socially responsible businesses, corporations with human rights abuse allegations could have a problem securing capital in the near future.

 The business community can also expect increased pressure from international human rights bodies. In June 2019, the International Labor Organization adopted a new Convention to combat violence and harassment in the workplace. The Convention sets new international labor standards and “reminds member States that they have a responsibility to promote a general environment of zero tolerance” for workplace violence. The Convention is legally binding for member States, which will no doubt increase scrutiny of the fashion industry, which is plagued with accusations of gender-based violence against female workers. Retailers can expect increased responsibilities of due diligence and prevention, as well as aggressive action and redress when abuses occur.

The simple fact is that there is nothing superficial or whimsical about the fashion industry – it is a massive empire, built in large part due to an intentional race to the bottom, and at great expense to the workers that it so desperately depends on. The industry was estimated to be worth $2.4 trillion in 2017, and growing, making it the world’s seventh-largest economy when ranked alongside the gross domestic products (GDP) of individual countries, according to a report by McKinsey and Company. However, the Asian Wage Floor organization estimates that for an item of clothing, only between 0.5-3 percent of the cost goes to the worker who made it. The industry thrives by dealing in poverty wages. This is especially alarming when considering the fashion industry employs millions of people, many of which are women and young girls located in countries where human rights abuses are not uncommon, and where women are particularly socially and economically vulnerable. 

How can an industry worth trillions still be paying poverty wages to the workers that make it all possible? Whether intentionally or not, international corporations are part of a complex system that keeps millions, especially women and young girls, trapped in a cycle of poverty. 

With its financial capital, reach into underserved labor markets, and direct consumer interaction, the global fashion industry could be an incredible driver of social good and equality, able to spur great economic growth through employment opportunities and vocational trainings in communities that need it most. There are, of course, corporations that are doing just that, and they are thriving among millennial consumers. Brands like H&M and Lululemon Athletica, which have scores of B+ and A-, respectively, in the 2019 Ethical Fashion Report, remain fashion favorites. Currently, however, the bare minimum is the norm in this industry. 

Statements and codes of conduct kept neatly on website pages are not enough. To make real change, corporations must collaborate and work together to disrupt the status quo and drastically overhaul the way global supply chains function. 

The first place to start: increase wages of all workers. No one should be earning less than a living wage in such a massive industry. Invest in worker empowerment programs, skill building, and education for employees. Invest time and resources in ensuring that companies comply with The UN Guiding Principles on Business and Human Rights

Human rights abuses are predictable and preventable; businesses ought to do the work now to avoid future risk. What may feel like a short-term financial hit allows investment in a healthier, more productive market that corporations will benefit from in the years ahead. As McKinsey and Company states, “brands must find the courage to self-disrupt their own identity and the sources of their old success.” To satisfy changes in public and investor behavior, and win new generations of consumers, brands must enact real, human rights driven changes from the executive suite all the way to the factory floor.

An Unending Crisis: India’s Amendment to the Citizenship Act

Guest Contributor Anant Sangal is currently an undergraduate student of B.A., LL.B. (Hons.) at the National Law University, Delhi, India. He is deeply interested in the issues of constitutional law and human rights law

The sledgehammer of the Indian State is powerful and surreptitious. It is powerful because its impact is realized and is then hard to undo and is surreptitious, because it often acts in the ambit of the Indian Constitution. Most recently, it was cracked hard on the illegal Muslim immigrants from Afghanistan, Bangladesh, and Pakistan. In the first-half of December 2019, the Parliament of India passed a legislation, which sought to amend (“Amendment”, hereinafter), the Indian Citizenship Act, 1955 to provide for the citizenship to the people belonging to certain specified communities from India’s three neighboring countries, that is from Bangladesh, Afghanistan, and Pakistan. 

The new proviso to Section 2 (1) (b) of the 1955 Act reads, “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;.

A plain reading of the proviso to the Section will establish this wide and clear that the sole community excluded from the realm of protection of the newly amended statute is the Muslim community. As per the Statement of Objects and Reasons appended to the Citizenship (Amendment) Bill, 2019 and in his speech while tabling the Amendment in the lower-house of the Parliament, the Union Minister of Home Affairs suggested that the Amendment seeks to provide a home to the religious persecuted minorities in either of these three theocratic nations, where Islam is the State religion. Therefore, the primary assumption is that people belonging to only these six communities are persecuted on the basis of their religion and hence, India must act as their homely abode.

The ostensible exclusion of the Muslim community is based on the assumption that they are not persecuted at all in those nation-states, where Islam is the state religion. However, this is far from being true. The Ahmediya and the Shia sects of the Muslim community have faced severe persecution at the hands of the Sunni Muslims in Pakistan and the Rohingyas of Myanmar continue to be widely persecuted by the Buddhists in Myanmar. The 2013 United Nations report states that the Rohingya Muslims are the most persecuted in the world. Therefore, the assumption and the justification the legislation provides for excluding the Muslim community is false and does not have a very strong foundation either. Rather, the new basis of granting citizenship to the illegal immigrants is based on a majoritarian conception. 

The Amendment projects that the true civilizational abode of the Hindus is only India. Therefore, it appears to be yet another step towards solidifying the argument that we hear for long about how the English have England, the Americans have America, but the Hindus do not have Hindustan (India). The Amendment finally seeks to legitimize a majoritarian and an exclusionary idea of citizenship, where a deliberate attempt is made to exclude only the immigrants belonging to the Muslim community from acquiring the Indian citizenship. The real dangers of legalizing something of this kind is while we do not have an established theocratic state but the selective targeting of a selected community helps us inch closer to an undeclared theocratic state, where rights for minorities remain at the whims of the majority.

That said, the founding fathers of the Indian Constitution were torn between choosing the just mode for granting citizenship to the people. The country was reeling under the aftermath of a bloody and a gruesome partition, where the Indian subcontinent was divided into two halves on the communal lines. In that setting, the drafters of the Indian Constitution, the great visionaries they were, decided to side with jus soli as the basis for the grant of citizenship rather than jus sanguinis. Jus soli provides for citizenship on the basis of the place of birth of an individual i.e. the soil, on which such person is born. Jus sanguinis is a much more elite and a racist conception of citizenship, where the citizenship is determined by an individual’s descent or ethnicity of one or both parents.

Operating under the scar of partition, it was surely very progressive to choose jus soli as the basis of citizenship and include the same in Part II of the Indian Constitution. The Indian Citizenship Act, 1955 was in furtherance of this conception itself. However, the successive Amendments to the Act dragged the basis of citizenship from jus soli to jus sanguinis, with religion acquiring a substantive stake in this shift. In 2004, the Act was amended to provide that even if a person was born on the Indian soil but had even one parent as an illegal migrant at the time of her birth, such person will not qualify for the grant of Indian citizenship. I mention that the Amendment was religiously motivated and targeted a specific community because it was introduced to neutralize the heavy efflux of people from Bangladesh, majority of whom are Muslims and happened to give birth to their children in India. The present Amendment is just another step furthering that very idea.

After the legislation was assented to by the President of India, the final stamping authority required for converting any bill into a legislation after the same has been passed by both the houses of the Indian Parliament, there has been a massive public uproar in the entire country. The entire political opposition has been on the streets rallying against the passage of the Amendment and a slew of petitions have already been filed in the Supreme Court of India (the apex Indian court), challenging the constitutional validity of the legislation. The petitions do, and rightly so, question the Amendment to be arbitrary as the classifications drawn by the Amendment are based on the inherent qualities of a human being, which the Indian Constitution prohibits. 

Under Article 15 of the Constitution, while the same is applicable only to the citizens of India, the presence of certain listed categories mandates that discrimination on the basis of the inherent qualities of a person is prohibited by the Indian Constitution, two of which are religion and place of birth. In that sense, the classifications drawn by the new Amendment itself are based on religion and the country of that person and hence, will fall fowl of the equality code of the Constitution. While it is being extensively argued how the limitation of applicability of Article 15 operates against the Muslim illegal migrants itself, it has to be recognized that Article 14, which is applicable to all persons and not just to citizens, will operate on the same principle which forms the basis of Article 15 as well.

As I conclude this article, the Chief Minister of West Bengal, another Indian state bordering Bangladesh, has given a clarion call to conduct a plebiscite on the Citizenship (Amendment) Act, 2019 under the vigil of the United Nations so as to reach the conclusion whether the people of the country support something like the Amendment Act. While I do not believe how valid is the demand for conducting a plebiscite will be, given that the Indian Constitution contains a well-defined and structured procedure for creation of a legislation, however, the repercussions of categorically exiling a community into invalidity will not be feeble, to begin with.

Erosion of the Right to Freedom in Kashmir: How India Violated Established Principles of Constitutional and International Law

Guest Contributor Bhaskar Kumar is a 3rd year student at National Law School of India University, Bangalore. His areas of interest include criminal justice, human rights, constitutionalism and international law. He writes for a number of platforms including law review blogs and media platforms like The Hindu, Live law JILS-NUJS etc.

In anticipation of unrest after altering the special constitutional status of the state of Jammu and Kashmir, the Indian government detained several political leaders and imposed a broad restriction on freedom of movement and press in August 2019.  

These restrictions were imposed in the aftermath of abolishing article 370 of Indian Constitution. This article was part of the Constitution of India which provided special status to the state of Jammu and Kashmir. By virtue of this article, the people of Jammu and Kashmir used to enjoy some privileges including exclusive property rights. 

The government justified this amendment by considering it a step that ensures the complete integration of the state into the Union of India and to have better control over the territory in order to curb terrorist activities allegedly taking place there.

By imposing section 144 of Criminal Procedure code (1973), the government banned public meetings and shut down the internet and phone services completely which consequently disrupted news and information services. With this step, the government of India has violated the right of freedom guaranteed under article 19 of Indian constitution which protects citizens’ right to freedom of movement, assemble peacefully without arms and press until and unless security of state, sovereignty or interests of the general public is at stake. When such concerns are at stake the government might impose reasonable restrictions over enjoyment of these rights.

In the present case, however, the measures taken by the government of India cannot be said to put reasonable restrictions on the enjoyment of these rights in light of numerous judgments delivered by the apex court. In Indian Express Newspapers v Union of India(1985) 1 SCC 641, the Supreme Court held that freedom of press is crucial to communicate facts and opinions which educate people about political establishments and hence, there cannot be any interference with that freedom in the name of public interest. In the present scenario, due to imposition of restrictions, newspapers are not able to operate or circulate their services. This amounts to an infringement of the right to freedom of expression.

While stressing the importance of the freedom of the press, the Apex court in Dinesh Trivedi v Union of India held that citizens have the right to know about government decisions and actions. But citizens can only know government’s decisions and restrictions when they have access to media sources. In Sakal papers pvt. ltd. v Union of India the Supreme Court observed that the right to freedom of speech entails the right to circulate one’s views to all whom one can reach and care to reach and courts must be vigilant of any kind of restriction over such circulation of views in order to preserve the democratic ethos. 

Due to the imposition of a curfew in Kashmir and the presence of a large number of military personnel, it is impossible for a journalist to cover the news about the prevailing conditions due to imposition of section 144 CrPC. According to its managing editor, the Kashmir Times, a leading newspaper of state, has only been able to publish a minute version of its editions because of restrictions. The imposition of section 144 has made it almost impossible for journalists to carry on their duties.


In Babulal Parate v. State of Maharashtra the apex court ruled that section 144 of CrPC can only be imposed when there is an actual prominent threat endangering public order and tranquility which has not been ensured by government before imposing the curfew. The Internet has also been shut down and the circulation of information has been impossible because of this. The Government of India has ruthlessly interfered with the freedom of press and information. The mandate of article 19 doesn’t give the unbridled power to governments to impose restriction merely on the grounds of speculation and anticipation. The reasonable restrictions on fundamental rights cannot be of such disproportionate nature that they extinguish the right itself. The Indian government has failed to justify the nexus between potential terrorist threats and internet and media shut down for an unreasonably long period of time, as there is no indication of any kind of threat to public tranquility in the  present case.

Looking at the situation from the perspective of international humanitarian law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) ,which has been signed and ratified by India, requires that the government protect the right to freedom of expression and Information. According to a resolution passed in 2012, the UNHRC affirmed that right to information applied online as well. Article 19(2) of the ICCPR mandates that everyone “shall  have right to freedom of expression and this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice”. As per article 19(3) of ICCPR, the right to freedom of expression and information can only be restricted on the conditions that they are done so by law and are necessary for respecting the rights of others and to protect the national security or public order.

In the present case, the aspect of necessity has severely been overlooked. As discussed earlier, there was no substance to show that there was in fact a threat to national security and public order. The respect of modern communication channels–particularly the internet–is very important for a democratic country. As an interactive medium, the Internet opens up new possibilities for communication and is accordingly relevant for the theory of democracy. It ensures participation by forming audiences and opposing audiences and enhances the possibilities for political information, deliberation and participation. No other medium facilitates the communication between state and citizen to the extent that the internet does.  Research on the importance of the internet for civil society groups shows that net-based communication is  key for the organization of transnational protests and solidarity in particular. Even though some studies have pointed out that online content is relatively conventional and little use is being made of the interactive potential inherent to the technology, this form of communication remains. In Ahmed Yildirim v. Turkey the European Court of Human Rights held that the access to media platforms is an indispensable tool for exercising the right to freedom.

The recent steps taken by Indian government in Kashmir constitute serious violations of principles enshrined in the constitution of India and international covenants signed and ratified by India. However, the government has not responded to the questions raised by media and civil society in this regard. Last month a delegation from European Union visited Srinagar, (the capital of Jammu and Kashmir) to have a first-hand understanding of situation. The visit was diplomatically important as the government’s move was criticized internationally by lawmakers. However, the visit was unofficial and there was no intention on the part of delegates to submit the report to European Union.

The Indian government should not have unbridled power to curtail the fundamental rights of its citizens. Constraints imposed on media and the internet must therefore be removed as soon as possible and citizens should continue to enjoy their freedom of speech.

The Ayodhya Ruling and the Rule of Law

Guest Contributors Prannv Dhawan and Parth Maniktalaare are law students at NLSIU Bengaluru and Campus Law Centre, Delhi respectively. Prannv is the founding editor of the Law School Policy Review and Parth is an editor of the online journal, Polemics and Pedantics.

A five-judge bench of the Supreme Court in India has unanimously held that the possession of the most-contested piece of land in Indian political history—the 2.77 acres where the Babri Masjid Mosque once stood—should in fact be exclusively given to the Hindu claimants of the case. At the same time, the Court invoked its special power to do ‘complete justice’ under Article 142 to restitute the damage caused by ‘egregiously illegal’ idol installation (1949) and Masjid demolition (1992). Hence, it ordered the government to allot an alternate plot of 5 acres to the Sunni Muslim Waqf Board at a ‘prominent place’ in Ayodhya for the construction of a new mosque. 

A few words have become an indispensable part of the vocabulary describing this judgment. Politicians and legal commentators alike are calling it a “win-win situation,” BJP spokesperson Nalin Kohli calls it an “inclusive judgment,” and Prime Minister Modi calls it “a golden chapter in the history of the Indian judiciary.” On the other hand, even as the judicial outcome has come to represent a vindication of the ideological Hindutva, many have stated that the Hindu majoritarian context and atmosphere has cast its shadow on the Court’s narrow and technical reasoning to hold that on the balance of probabilities, Hindu parties have a better claim to adverse possession of the site. Be that as it may, across the board there seems to be a concealed satisfaction, as if by upholding the claims of the Hindu-majority, the court has averted a crisis. However, the finer aspects of the rule of law seem to have been compromised or diluted in order to satiate the faith and belief of a community. 

Rule of law requires that people be governed in a manner that is equal, just, and non-arbitrary. Considering the highly religious nature of the property dispute, the court corrected emphasized the importance of equality amongst religions. It cites  SR Bommai v UOI to emphasize that secularism and fraternity are basic features of the Indian Constitution (see paragraphs 82 and 83). The Court goes on to strongly affirm both the constitutional value and significance of the Places of Worship Act, 1991. The Act, legislated in the context of deep communal divisions in the country by a legislature concerned about national integrity, provides for criminal punishment for converting the places of worship of any religious denomination. The court emphasizes the principle of non-retrogression of pre-constitution era disputes to further the legislative intent behind the Act, states: “The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.” Hence, the Court raises this statute to the pedestal of a constitutional statute whose importance has been highlighted by various secular and progressive activists considering the likelihood of similar communal disputes being raised in other places of worship in Mathura and Varanasi. This is an important signaling from the Court that any derogation from judicious application of the Act would certainly violate the Court’s reasoning.

The court remarks in the Ayodhya Judgment: “[land] title cannot be established on the basis of faith and belief alone (para 788).” And yet, the court proceeds to say “Once the witnesses have been deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief”; “Whether a belief is justified lies beyond the ken of judicial inquiry (para 555).” Analyzing this language,  Professor of law, Faizan Mustafa notes, “The court while pronouncing the judgment did try its best to strike a balance between law and faith. But clearly faith has the last laugh here.”

While it is undisputed that a significant section of the Hindu population believes Ayodhya to be the birthplace of the Hindu deity Lord Rama, it is unclear whether such belief can be grounds for legal adjudication in what is essentially a title dispute. Furthermore, such deference to religious beliefs also stands in opposition to the Supreme Court’s ruling in the  Indian Young Lawyers Association vs. State of Kerala) case, wherein the court explicitly favoured constitutional morality over any personal/religious beliefs. “In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail.” (para 189). It remains to be seen what the Ayodhya ruling’s jurisprudence bears for the review petition in the Sabarimala case, in which an order is expected next week.  

Another instance of the court deferring in favour of the beliefs of Hindu devotees in the judgment is where it disregards the longstanding bifurcation of the disputed site between an inner and outer courtyard. The ruling states, “Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the “Garbh-Grih” being the birth-place of Lord Ram (para 773).” 

The court uses this logic to treat the entire disputed land as one unified territory—which it then proceeds to grant to the Hindu claimants. Again, this is a problematic deference to the belief of one community in disregard of the factual matrix (wherein Hindu devotees had initially only staked claims to the Ram chabutra, located in the outer courtyard). The suit that Mahant Raghubar Das had filed on January 19, 1885, sought permission to build a temple on the chabutra. The District Judge, in his judgment dated March 26, 1886, said: “This chabutra is said to indicate the birthplace of Ramchander.”

The consequences that follow from the court ignoring such distinction between inner and outer courtyards (and treating them as a composite whole) are of paramount importance. The court made two important conclusions that underpin its final orders: 

 

  1. “The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship.”

 

  1. “The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims.” (para 788, clause XVIII)

 

Therefore, as opposed to granting the Hindu representatives possession to the outer-courtyard, and then proceeding with a balancing act with respect to the possessory title for the inner courtyard, the court eventually concluded that “on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims… (para 800).” Hence, the court ordered that the “possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted.” The trustees, including the parties representing Lord Rama, shall have the powers for the construction of a temple and all necessary incidental and supplemental matters. 

It is also important to note that in reaching the conclusion that Muslims were not in exclusive possession of the inner courtyard, the court heavily relies on evidence of attempts by Hindus to disrupt the possession of the Muslims: “Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard (para 788, clause VII).”

In his essay ‘A Historical Overview’ published in the book ‘Anatomy of a Confrontation’ (1992), K.N. Panikkar records one such assertion by Hindus, “On 30th November 1858, Maulvi Muhammad Asghar, khatib and muezzin of the Babri Masjid, submitted a petition to the magistrate complaining that the Bairagis had built a chabutra close to the mosque and that they had written ‘Rama, Rama’ on the walls of the mosque.”

In a far more problematic way, the court uses the illegal acts of violence on part of Hindus to justify its conclusions about Muslims lacking exclusive possession: “The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard (para 781).” 

It seems manifestly unfair for the court to allow the Hindu claimants to benefit from brazenly unruly acts which sought to interfere with the possession of the Muslims. In retrospect, Muslims amicably respecting the rights of Hindus to worship in Ram chabutra and Sita ki rasoi has in fact turned out to be counterproductive. Perhaps had they too sought to violently disrupt the religious proceedings of Hindus, the court would’ve applied the same “conflicting claims” yardstick to the outer courtyard too—and found against the exclusive possession of the Hindus. 

Nevertheless, it is important to not lose sight of a greater crisis that has been averted in Indian jurisprudence. In a context where large scale mass-mobilization for temple construction was threatened and it was declared that Ram Mandir was an issue of faith and the Supreme Court must not delay its adjudication, the Court has successfully engendered unanimous support for legal process. The court takes due notice of the unruly demolition of the Babri Masjid. “The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law (para 788, clause XVIII).”  And yet the court refrains from restituting the Muslim community by restoring the mosque. The judgment seeks to establish a judicial precedent wherein minorities are simply compensated for violations of rule of law, as opposed to restituting them to their original positions with due respect for their rights and dignity. It is also worrisome because the same perpetrators continue to enjoy to impunity and gave self-congratulatory statements on the verdict.  AG Noorani’s critique of the Allahabad High Court’s judgement is equally applicable to that of the Supreme Court: “The Allahabad High Court had, in effect, sanctified the criminal conversion of the historic Babri Masjid, built in 1528, into a Hindu temple in 1949.”

The political ramifications of this judgment will not be immediately discernible. As far back as 2001, historian Mukul Kesavan had written in his book Secular Common Sense, “The construction of the Ram Mandir where the Sangh Parivar wants it built won’t lead to apocalypse. The world will look the same the morning after, but the common sense of the Republic will have shifted. It will begin to seem reasonable to us and our children that those counted in the majority have a right to have their sensibilities respected, to have their beliefs deferred to by others. Invisibly we shall have become some other country.”

The Supreme Court has averted an immediate crisis, insofar as there has been no outbreak of violence, nor any reports of bloodshed in the aftermath of the verdict. But perhaps the greater crisis that the court has involuntarily invited is that of minorities losing their faith in the institution of the judiciary. In an environment where the legislature and executive are turning unashamedly majoritarian, vulnerable minorities have nowhere to go than repose their faith in the courts. Even as the parties representing the Muslims have decided to file a review of this judgement to contest its conceptual flaws and inconsistencies, one can only hope the judiciary would give them a fair hearing and foster institutional faith in the efficacy of justice delivery. Moreover, as argued elsewhere the court should seriously consider passing directions to ensure an expeditious day to day trial in the languishing Babri Masjid demolition cases. This could be a concrete first step in the long way for the legal system to bridge the scales of justice.

The Kashmir Issue: How “Miller (2)” Must Inspire the Indian Supreme Court

By guest contributors Anmol Jain and Prannv Dhawan. Jain is  a penultimate-year law student at National Law University, Jodhpur, India. He takes an active interest in the study of constitutional law and judicial approaches to human rights. Dhawan is a third-year law student at National Law School of India University, Bangalore, India. He is interested in policy and legal research in the domains of public law, human rights and climate justice. 

India’s constitutional democracy is backsliding. Speaking at a rally during the ‘National Register of Citizens (NRC) Seminar’ recently, the Home Minister advocated for the re-introduction of the much contentious Citizenship Amendment Bill, which unconstitutionally aims to provide easier citizenship requirements for non-Muslim refugees. Noted scholars have argued that previously, the National Register of Citizens exercised in Assam and now, the dilution of Article 370 of the Constitution that provides special status to the state of Jammu and Kashmir, are arguably unconstitutional attempts to further the political vendetta of the ruling party which has the capability to downgrade the credentials of Indian federal and democratic ideals. Amid global critique of the functioning of the executive branch in India, the latest coming from the Bar Council and Bar Human Rights Committee of England and Wales, United Nations and the United States Senate Committee on Foreign Relations, the attitude of the Supreme Court towards the Executive excesses has also come under the radar (see here, here, here and here). We attempt to analyse it hereunder by specifically focusing on the Jammu and Kashmir issue pertaining to dilution of Article 370.  

To briefly comment on this provision, Article 370 prescribed a special status to the state of Jammu and Kashmir by limiting direct application of the Indian Constitution to the State. Provisions of the Indian Constitution could be applied only through Presidential Orders issued upon the concurrence of the State Government. It further provided that the President may cease or modify the operation of Article 370 after taking recommendations from the Constituent Assembly of the State. On August 5, 2019 a Presidential Order was passed which inserted an additional clause in Article 367, a provision that guides the interpretation of the Constitution, to indirectly amend Article 370. It stated that the expression ‘Constituent Assembly of the State’ used in Article 370, must be read as ‘Legislative Assembly of the State’. Given the fact that the state was functioning under President’s rule through the Centre-appointed Governor at the relevant time, indicating the absence of a legislative body, it became a butterwalk for the Central Government then to modify Article 370 to such an extent that it virtually dilutes it. 

Many petitions have been filed in the Supreme Court challenging this dilution. This issue involves the determination of limits on the Executive functions in India, which is presently functioning in an ultra-strong manner with a combined strength of the whip. It involves the question of constitutional federalism and the survival of India’s democracy as envisaged by our founding fathers. Understandably, nothing could be more important in the existing backlog of the Supreme Court than securing the identity of our Constitution, which promises to India citizens and the state governments a Government limited by the Rule of Law and ideals of federalism, respectively. However, while hearing the matter on September 30th, the Supreme Court hearing was delayed, with representatives noting: ‘We do not have time to hear so many matters. We have a Constitution bench case (Ayodhya dispute) to hear.’ 

The issue of backlog in the Supreme Court of India isn’t new – it has been continuing for many years (for a more detailed discussion, see here). Given that the Court today is suffering from a high backlog of cases, an agenda of judicial reforms, as Justice Chandrachud recently articulated, must include the proposal to reduce the high number of appeals of civil or criminal suits and to streamline special leave jurisdiction. Another option for reducing the caseload burden could also be, as is continuously being emphasized by the Vice President, the establishment of multiple benches of the Supreme Court in different regions in India. However, despite the way in which this manifests, under no circumstances can the Supreme Court continue to be excused from efficaciously fulfilling its constitutional responsibility to hear all cases that come before it.

When the Kashmir petitions were placed before a Constitution bench on October 1, the Court again failed to adequately fulfil its role as the protector of liberty by further delaying the hearing. In addition to this, if the bizarre habeas corpus orders, as critically analyzed elsewhere, in September is anything to go by, the Supreme Court has uncritically accepted the Government’s disproportionate claims about national security that seem to have taken precedence over the ideals of civil liberties. The idea of a nation represented by a focus point – dilution of Article 370 to achieve greater unity, as claimed by the Central Government – has overpowered the individual dignity and identity of its constituents, which marks a move from a democratic government set-up towards right-wing populism. Such judicial evasion in the guise of national security in these crucial cases of rights abuses has been criticized by constitutional commentators by juxtaposing it with the United Kingdom Supreme Court’s swift adjudication in R (on the application of Miller) v. The Prime Minister [“Miller (2)”], a case involving breach of constitutional procedures and principles in the prorogation of the Parliament.

The Indian Supreme Court’s core constitutional role is to protect the fundamental rights of  citizens. The efficacious hearing and adjudication of the petitions against civil rights restrictions, house arrests, and communications blackouts as well as the constitutionality of the Parliament’s legislation are critical in the current times of constitutional backsliding. Rights’ adjudication ought to be placed on  a higher pedestal than smaller, less crucial issues such as a recent case the Court chose to hear: the determination of legal title in a religiously charged land dispute matter. This is especially relevant at a stage in the Indian constitutional process where safeguarding the rights to dignity and life has been understood to be at the pinnacle of public duties. As has been enunciated in multiple golden triangle cases, these rights are interpreted broadly and for the betterment of Indian citizens. Further, just recently, the Kerala High Court held that even the access to internet is a fundamental right to be protected. 

Although the Supreme Court’s wide jurisdiction and liberal interpretation of its powers creates significant  institutional constraints, this cannot be an alibi for not fulfilling the fundamental constitutional role of the court. If the Court is indeed the most powerful apex judicial body in the world, then it must tirelessly commit itself to secure the civil-political-socio-economic rights in a timely fashion. While the stellar institutional contributions of the Supreme Court to the cause of human rights and citizen’s entitlements cannot be denied, we contend that it is this very expansion of its constitutional role (perhaps self-assumed), that obligates the Court to seriously and appropriately adjudicate on constitutional challenges and petitions that seek its rescue to restore fundamental rights. It is important to acknowledge that delay in justice delivery is an absolute denial of those exact rights. The court’s present cavalier approach to collective punishment of millions of citizens without judicious and comprehensive ascertainment of existence of reasonable grounds based on the doctrine of proportionality is unfortunate and needs to be critiqued, rather than defended. Otherwise, it shall surely create an ironical situation where the ‘most powerful court’ is continuously failing to fulfil its constitutional duties, perhaps under executive influence. 

Earlier this year, the UK Supreme Court upheld the ideals of parliamentary deliberation and accountability of the executive to the Parliament by declaring Boris Johnson’s 5-week prorogation of parliament null. This is similar to the current Indian situation. It would not be wrong to argue that diluting Article 370 at a time when the State of Jammu and Kashmir is functioning under the President’s rule and substituting the views of the Governor with the views of the State Assembly is equally ‘unlawful and thus null and of no effect.’ Any further delay in action by the Supreme Court comes with a high possibility of material alteration in the functioning of Jammu and Kashmir under the amended scheme of the Constitution, the reversal of which, if the Court decides so, might bear heavy costs.  

Demonstration of the Court’s independent strength is not only lacking in the realm of highly staked political matters, but it also extends to judicial appointments as well, as witnessed in the recent controversies involving Justice Akil Kureshi and Justice Tahilramani. Commenting on the manner in which the Supreme Court has handled the petitions arising out of the recent controversy involving Article 370 of the Constitution, the state of Jammu and Kashmir and its special status, constitutional commentator Gautam Bhatia has argued that an emergency-era weak judiciary has reappeared, though in a different form this time, which has failed the fundamental principles of Indian constitutional democracy. 

In a recent judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court highlighted the virtues of judicial independence and held that it is a part of the basic structure of the Indian Constitution,  again highlighted at another time soon after. Concerns regarding isolating the judicial body from the other organs of the Government have been institutionally studied by the International Commission of Jurists and under multiple international documents. However, the Supreme Court of India seems to have taken a blind eye towards itself even while it advocates internationally for  recognized jurisprudence of courts elsewhere.  

In the times when the Executive’s imposition of an information blackout and civil rights restrictions in Kashmir have continued for over 60 days and  blatantly unconstitutional legislations like the Citizenship (Amendment) Bill are sought to be passed,  the judiciary must rise to the desired standards and stand as an independent protector of the Constitution. We believe that the wide jurisdiction and the high number of cases that the Court handles weakens it. It is not impossible to achieve more balance; it has been done in the past. Justice H.R. Khanna, for example, is a judge who stood undaunted and ruled against executive excesses to uphold constitutional promise in their cases. The time has come that the present Court proves it is indeed the Constitution’s sentinel on the qui vive.

On Constitutional Morality: Thoughts from Delhi

Guest Contributor: Anmol Mittal is a 5th Year Student at National Law University, Delhi. 

The question of what the true import of the term “Constitutional morality” is has become pertinent following India’s (Application to Jammu and Kashmir) Presidential Order C.O. 272, and the subsequent State Reorganisation Bill introduced in the parliament. On the morning of August 5, through a combination of the Presidential order and the Reorganisation bill, the special status accorded to the State of Jammu & Kashmir, by way of Article 370, within the Indian Union, was revoked. To examine where the moral compass of India’s Constituent document lies, it’s necessary that the Constitution be considered as a ‘whole’, and not as being contained ‘essentially’ in Part-III on Fundamental Rights (Part-III rights). 

For the uninitiated, Part-III rights are, in a manner of speaking, India’s version of the bundle of rights in America guaranteed through the 1st, 5th, 6th amendments and so on. Article 19 corresponds directly with the 1st Amendment, Article 20 with the 5th Amendment, and the 6th Amendment has, in a manner of speaking, read into Article 21 and so on. Through a series of constitutional decisions, the Supreme Court of India has placed Part-III rights in the ‘infallible’ category–i.e. they cannot be amended to the ‘disadvantage’ of the holders of these rights. The legislative body is disempowered insofar as it’s amending authority is inhibited at the infallible category, a principle better understood in India as the “Basic Structure Doctrine”. This is, by no means, a mean feat. As Senior Advocate Arvind Datar notes in Courtroom Genius, no other country following a Westminister-type parliamentary democracy had ever had a legislation duly passed by Parliament struck down on grounds of fundamental rights violation. Kesavananda Bharati case, the genesis of such doctrine, really was an outlier. 

The seal of the constituent assembly of India

India, like various other countries with a protracted anti-colonial struggle, places its Constitution and the decisions of its Constituent Assembly as central in determining the validity of actions of present day government. While this in itself is hardly unusual, it is the political value that the Indian government still attaches to the Constitution that sets it apart from other nations. Seldom will one find instances in India of blatant disregard of the Constitution from members of the Executive branch of Government. On either side of the political divide, therefore, it is pertinent to understand India’s Constitution as a ‘whole’, and to not obfuscate the myriad considerations that the Constituent Assembly had in its mind when finalizing it in 1949. 

When drafting the Constitution, India’s Constituent Assembly must have been, as a matter of presumption, truly aware and cognizant of the implications of including Art. 358-359 in the Constitution. Specifically, Article 359, which states that: 

the right to move any court for the enforcement of such of [the right conferred by Part III (Except Art. 20 & 21)] as may be mentioned in the order……remain suspended for the duration for which the proclamation is in force”.

The presence of ‘Emergency Provisions’ under Art. 352 and its enabling provisions in Art. 358-359 suggest that the Constituent Assembly and its conception of a ‘Constitutional Morality’ considered a ‘threat’ to the Security of India as a bigger ‘emergency’ than the suspension of fundamental rights in mounting an effective counter to such a threat. If the converse, which is to say that the constituent assembly in its wisdom was convinced that Part-III rights would, by law, never be suspended from operation the correct position according to the Constituent Assembly, the text of the Constitution would not have so expressly contravened it. 

The only condition for suspension of Part-III rights is that there be a Proclamation of ‘Grave Emergency’ under Art. 352 by the President. This would be enough grounds to activate Art. 358, which automatically suspends all fundamental freedoms under Art. 19, such as speech, movement or even trade. Further, Art. 359 empowers the Government to, by issuing a Presidential Order, suspend the ‘enforcement’ of all other fundamental rights under Part-III.  

In Attorney General for India vs. Amratlal Prajivandas and Others, a nine-judge bench ruled on the extent of the President’s powers during a Proclamation of emergency under Art. 359. The Supreme Court, stating the view of the Constituent Assembly, held that the President was not clothed with the power to suspend fundamental rights but only their enforcement. This implied that while in theory fundamental rights exist, their judicial protection is suspended for the duration of the emergency. Essentially, writ jurisdiction, which enables anyone to move the court under Articles 32 & 226 for enforcement of their Part-III rights is suspended, except in cases where Fundamental Rights under Art. 20 & 21 are claimed to be violated, i.e. protections with respect to Convictions, such as the Right to Self-Incrimination, and the Right to Life. 

Therefore, all that the constitution requires to set in motion the suspension of generally revered Part-III rights is the meeting-of-minds of members of the Cabinet (The only time the word ‘Cabinet’ is used in the Constitution) and the communication of the same to the President, an exercise of purely executive power with no legislative approval. The provisions, after the Indian experience with the Emergency under PM Indira Gandhi, were tweaked to strengthen them by requiring the communication of such meeting-of-minds in writing. The grounds for the judgment of the Cabinet that security is under threat earlier included even ‘internal disturbances’, which was removed to limit the 3 grounds to War, External Aggression and Armed Rebellion. 

The import of Art.358-359 is further muddled following the Maneka Gandhi judgment. A 7 judge-bench laid to rest the AK Gopalan theory, that each Article in Part-III guarantees a distinguishable right, and each right is contained wholly in separate silos, with no overlap amongst each other. The Court disagreed with Gopalan, and constructed fundamental rights as being protected through overlapping provisions and not as ‘restricted’ under specific provisions of Part-III: i.e. a right may be guaranteed by and protected under several articles and not exclusively under one. The Right to Privacy, for instance, has been read as both, a part of the Right to Life (Article 21), because it is essential to the enjoyment of life, and also as under Right to Freedom of Expression (Article 19)

Therefore, the extent to which Part-III rights will be suspended (or not) during a proclamation under Art. 352 is subject to the minds in Bhagwan Das Road (The seat of the Indian Supreme Court) demarcating the extent to which a right falls under Art. 19 and not 20 & 21. This indicates a reversal to the ‘restricted’ conception of Fundamental rights as under Gopalan in order to safeguard their exercise, and also leaves to judicial discretion issues ill-suited for adjudication during an Emergency.

In effect, for a government exercising complete (‘Single’) majority in the Parliament, legislative approval for the passage of a bill, after the proclamation of an emergency and suspension of Fundamental rights, is only a matter of procedure. Freedom to speak and question the government in Parliament is the protection, in essence, that the Constitution ensures for our democracy. However, once these two parameters are met and the single ruling party has passed a bill, a 6-month suspension period follows before requiring legislative scrutiny again. 

Two conclusions can be drawn. One: ‘Constitutional Morality’ and ‘enforcement of Part-III rights’ are two separate spirits in the Indian Constitution, with the former comprising more than just the latter. As a result, it cannot be claimed that actions taken in violation of Part III rights invariably violate ‘Constitutional Morality’. Two: the suspension of Part-III rights can be considered violative of ‘Constitutional Morality’ only in cases where the prescribed ‘Constitutional process’ is violated. In other words, the essence of Part-III rights is contained not only in their substance, but also in the processes required to render them (un)enforceable. 

Seen in light to the developments in Kashmir, to criticise the media blackout and the militarisation of the valley only on grounds of the violation of the substance of Part-III may not be the same as stating that the actions undertaken are beyond ‘Constitutional Morality’. Emphasis needs to be added to the procedures which are required in order to ensure that Part-III rights are not suspended arbitrarily. It is the political cost of having to declare an ‘emergency’ to meet the Arbitrariness requirement and igniting the collective paranoia of Indians left over by Indira Gandhi which is crucial to any meaningful opposition to the actions of August 5 on grounds of ‘Constitutional Morality’. 

Decoding India’s Faltering Extradition Track Record: A Human Rights Approach

Guest Contributor: Tanishk Goyal is a second year law student at the West Bengal National University of Juridical Sciences, Kolkata. 

On July 2 2019, The U.K refused to extradite a couple who were accused of murdering their adopted Indian boy and his brother-in-law in order to receive a life insurance payout. The UK’s reasoning for this refusal took place against the backdrop of the inhumane and degrading human rights conditions prevailing in India. This discharge added on to the intractably dismal extradition track record of India, despite it having ratified the 1949 Geneva Conventions and The U.N Convention Against Corruption which adopt the framework for extradition and mutual legal assistance between countries for an expedited and effective extradition process. One of the fundamental reasons for this situation is India’s international perception as a country which cannot ensure the safety of the offenders it extradites. 

Although India has ratified the International Covenant on Civil and Political Rights, which lays down a human-rights based framework against torture, the country has still not been able to convince the international community that it can ensure the protection of the civil rights of the accused. 

The UK has justified its actions based on the ruling from a 1989 case in the European Court of Human Rights, Soering v the United Kingdom. This ruling argued that on the basis of Article 3 of the European Convention on Human Rights, before extraditing an individual, the requested state must conduct a strict judicial scrutiny of the extradition process in order to assess for any potential human rights violations against the accused which might take place in the requesting state. This reasoning is primarily intended to ensure the fulfillment of jus cogens norms as a part of the international obligation to protect human rights. Moreover, before the requested state can commence extradition proceedings, it needs to ensure compliance with its treaty obligations. Particularly, it ought to examine the compliance with the United Nations Convention Against Torture, which has been ratified by 166 state parties of which India is not one of them. Thus, as the ECHR understands it,  jus cogens and treaty obligations in fact do override state sovereignty if there is a possibility of the violation of an accused’s human rights in the requesting State.

 

The international community tends to perceive India as a country which continues to have a relatively higher capital punishment rate. This is amply illustrated by the fact that, in the year 2018, India had as many as 162 persons who were sentenced to death by the trial courts. The absence of provisions dealing with the human rights of the accused in the Indian Extradition Act, and the recent Criminal law (Amendment) Act, 2018, which favours a pro death penalty approach to sentencing, also drastically reduces India’s chances for conducting successful extraditions. The overcrowding of Indian jail cells, the lack of proper medical facilities, and the lawlessness and highhandedness of the police in India are oft cited reasons for refusing the extradition of its offenders. 

The appalling conditions of Indian jail cells and ill-treatment of individuals in custody is tremendously infamous internationally. This was illustrated by the 1990 case of Gill v Imundi, when a US District Court, on the basis of evidence offered to it from India, noted that sending the accused to India would lead to gross violations of human rights and the treatment that he would receive would shock the court’s “sense of decency.” Come 29 years later, the precedence of this case still evokes the same international sense that India disregards the human rights of its prisoners, which is one of the fundamental reasons why, even today, India faces the questions of the violation of due process and human rights before it can commence extradition proceedings. 

Beyond formal treatment of prisoners in custody, India also has a demonstrated history of vigilante justice, with vigilantes lynching people on mere suspicion and hearsay. India’s lack of any substantial jurisprudence or case law taking active steps to curb these lynchings also does not help it enhance its extradition numbers.

If India wishes to have success in future extradition requests, Indian Extradition Law needs to be amended to include provisions which ensure the protection of human rights of the extradited individuals. In practice, India must display appropriate precedence which shows that extradited individuals are treated as per international human rights obligations, and protected from unjust and inhumane conditions. Undoubtedly, India should accede to the  UNCAT in order to build a more persuasive case for extradition in the times to come. 

It is imperative to note that, while India assures the international community that an accused person, after being extradited, would be treated according to international humanitarian standards, it can only add weight to these assurances by carving out certain inroads into the Indian Extradition Law. This allows India to address its human rights issues by actively setting precedence which fundamentally transforms its misconceived perception in the international realpolitik.  

Of Orwellian Times and Beyond: Examining India’s Recently Amended Anti-Terror Law

Guest Contributor Ashwin is an Advocate practising across trial and appellate courts in India. He belongs to ’18 B.A.LL.B.(Hons.) class of Rajiv Gandhi National University of Law, India.

When governments decide to condemn one as being “involved in terrorism” simply on the basis of belief and nothing else, one cannot help but wonder whether “Thought Police” from George Orwell’s 1984 is being brought to life. To be condemned solely on beliefs would indeed be blasphemous for the vires of justice. The Indian Parliament has recently introduced a process which allows individuals to be subjectively designated as terrorists by the government. The recent amendments to the Unlawful Activities (Prevention) Act allow the Indian Central Government to designate any individual as being “being involved in terrorism” based solely on, as stated,“if [the Central Government] believes that such… individual is involved in terrorism.”

 Violation of the Principles of Natural Justice & lack of Procedural Fairness

These recent amendments to the Act threaten the principles of natural justice and procedural fairness. The principles of natural justice underlie the need for procedural fairness. These principles aim at safeguarding the right to a fair trial procedure. The two most widely recognized principles of natural justice are audi  alteram partem and nemo judex in causa sua.  Audi Alteram Partem refers to  the right of a person to be heard before he or she is condemned by law. Similarly, nemo judex in causa sua literally implies that none shall be a party to their own cause.This implies  that a party which levels an allegation, cannot adjudicate upon the accusation as well.   While commenting on the fitness of a legislation vis-à-vis principles of natural justice, in the landmark case of Maneka Gandhi v. Union of India the apex court laid down that “…  legislation must take processual provisions which accord with fair norms, free from extraneous pressure and, by and large, complying with natural justice. Unilateral arbitrariness, police dossiers, faceless affiants, behind-the-back materials, oblique motives and the inscrutable face of an official sphinx do not fill the ‘fairness’ bill…

Under the Unlawful Activities (Prevention) Act, the Government of India is not required to establish convincing evidence or even give an opportunity of representation to an individual, before they are designated as a person involved in terrorism. The government, solely acting on its “belief”, can pass an order unilaterally,thereby violating the principle of audi alteram partem.  Additionally, there is no requirement to hand over the reasons in writing to the person being so condemned. 

The only instance of a statutory hearing offered through the legislation comes after the label of being “involved in terrorism” is attached. This hearing takes place in the form of a review process, under S.36 of the Act. This review process entails a summary proceeding by a Review Committee, which assesses whether the grounds of detention are indeed valid or not. The review proceedings award wide discretion to the presiding adjudicators since its manner of working has not been comprehensively outlined in the legislation. Notably, the power of appointing an adjudicator to hear an accused’s review plea lies with the Central Government, which also designates the person as a terrorist.  Pursuant to S. 37(3), the Central Government may appoint the judge who is to preside over a Review Committee. While in the event of appointing a sitting judge, the concurrence of the Chief Justice of the High Court is required; if the government chooses to designate a retired High Court judge to hear the issue, then in such a case complete discretion regarding the choice of adjudicator lies with the Central Government. Thus, the same authority which condemns an individual for being involved in terrorism, i.e., the Central Government, has also been awarded the discretion to appoint the person who shall decide the condemned individual’s review plea.

Amendments to the Anti-terror law & India’s international obligations

The legislation also derogates from India’s international obligations. This is particularly true in relation to the International Covenant on Civil and Political Rights, to which India is a party. The ICCPR lays down under Article 14 that “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal...” Furthermore, the covenant provides the right “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” The ICCPR calls such rights “minimum guarantees”. 

Interestingly enough, the Government of India has itself recognized the obligation of a state to ensure a fair trial by relying on ICCPR in its own written submissions to the International Court of Justice in the Jadhav Case, even according it the status of an erga omnes obligation.

To have a zero-tolerance policy towards terrorism is indeed a welcome step. However, in doing so, one cannot manifest a procedure which awards excessive power. The recent terror amendments have evoked criticism within India, with scholars and writers looking at the amended law as a potential threat which may lead to civil death for those who dissent, and even India’s very own McCarthyism moment

It must be noted that in the past more than 2/3rd of the cases under the Unlawful Activities (Prevention) Act have resulted in acquittals or discharge of the accused. The unamended Act already defines a  “Terrorist act” and accords an independent trial procedure and punishment for it.The recent amendments add erroneous discretion to an Act that ought to be based in principles of procedure and natural justice. 

Being labeled as a terrorist has immense consequences for the accused. This designation should only be awarded once a person is convicted of committing a terrorist act under the Act, pursuant to proper procedural review. This would ensure that the label of being involved in terrorism comes after appraisal of evidence by an independent court rather than simply the belief of the executive.