The Great Betrayal

The govt has, for all practical purposes, final veto over the appointment of judges.

Judges of High Courts across the country and the Supreme Court are appointed by a ‘collegium’ consisting of the Chief Justice of India and four senior-most judges of the Supreme Court. This system was a creature of three judgments passed by the Supreme Court, popularly known as the Three Judges Cases. In 2014 the National Judicial Appointments Commission Act and the Constitution (Ninety-Ninth Amendment) Act, 2014 were passed by Parliament, thus replacing the collegium system with a commission comprising of 3 Supreme Court Judges, the Union Minister of Law and Justice, and two ‘eminent persons’. Suffice to say that the NJAC act was a horrible legislation that claimed that the collegium system gave excessive and unchecked power to the judiciary and to remedy this, the act simply gave unchecked and excessive power (over the appointment of judges) to the Parliament.

One of the many common threads running through the Three Judges Cases and the NJAC case was the question that in the event the executive and the court reach a deadlock over a prospective appointee, which organ of the state will get primacy (final veto)? This is a question not just about a procedural conflict, but also one deeply impacting independence of the judiciary. Why is the independence of the judiciary important? Because it keeps the Parliament and the Executive in check and protects citizens from excesses by these organs. Various cases decided by the Supreme Court, including the NJAC case, concluded that independence of the judiciary could not be achieved without judicial primacy over the appointment of judges. In the NJAC case, the Supreme Court held that since independence of the judiciary is an un-amendable feature (part of the basic structure) of the Constitution of India and since this independence cannot be achieved without judicial primacy over appointment of judges, a law which takes away this primacy (the NJAC act) is unconstitutional and is therefore struck down.

The judgment in the NJAC case, however, concluded by saying that the government should draft a Memorandum of Procedure (MOP) to suggest changes in the collegium system and that M.O.P would be vetted by the apex court. This was most bizarre because the changes the government wanted to suggest were being reflected in the NJAC Act. Secondly, why did the Supreme Court not bring about these ‘changes’ and ‘reforms’ in the process of deciding the case, or in the final judgment passed by the court? Your guess is as good as mine. The Union Government, which initially seemed to be reluctant to participate in this exercise, enthusiastically began the process and a to-and-fro over the MOP began. There was much that the judiciary and the government disagreed over.

Meanwhile (presumably a tactic of the government to pressurise the court) appointment of judges to various courts was more or less put on hold by the government much to the anguish, at least of the previous Chief Justice of India, T.S. Thakur, who reportedly broke down in tears over the government’s obstruction and arrogance.

One of the many clauses that were the subject of this deadlock over the MOP was the ‘national security’ clause. The government wanted a veto to reject any judges if it felt ‘national security’ was at risk. This assessment of the government was not open for discussion. The 87th report of the Parliamentary Standing Committee on Law and Justice said that this clause was a bad idea and tantamount to a veto being given to the government. Thakur said as much and expressed concern that this clause would be misused by governments. Ravi Shankar Prasad reportedly gave assurances in Parliament that the government was not seeking a veto.

According to a report in the Times of India, the deadlock over this clause has suddenly been resolved, and the court has conceded with the caveat that the government must give reasons for rejecting someone under the clause. This may look like a compromise at first glance, but the fact is that the government now has the final veto over appointment of judges. This development is contrary to the judgment of the Supreme Court itself in the Second Judges Case and the NJAC case (and therefore violative of the constitution). What was the point of long disputes over decades and especially the entire NJAC case if, finally, primacy was to be given to the executive? We are now in a bizarre situation in which a lengthy, detailed judgment was passed only for a MOP to go against the said judgment, all behind closed doors. There is no provision in the constitution of India which allows for judgments to be altered in this manner. Will this now become a custom? Each time the government is upset with a case, will it be allowed to have closed door discussions with the court, which will end in the judgment being changed? Another fact that casts a shadow over the matter is allegations of corruption against certain judges of the SC (among others) made by Kalikho Pul, the former CM of Arunachal Pradesh, in his suicide note. In an ideal world, all judges named should have recused from all work, including drafting of the M.O.P. We don’t live in an ideal world. The summary is that once again, we have been thoroughly and collectively betrayed by all the organs of the state.

This article was first published in The Mumbai Mirror

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Kashmiris deserve an acknowledgement of the horrors perpetrated upon them.

I must start with an apology to Kashmiris since it may appear I’m presuming to speak on their behalf. I am not. I cannot. I can’t even begin to imagine, much less preach, about the pain they have suffered. Please forgive me, I couldn’t help but feel enraged at what Chetan Bhagat wrote in Times of India. Bhagat’s post is an attempt at suppressing the truth camouflaged as advice. I can’t help but call out his lies.

He starts with “Dear Kashmiri friends (the ones who don’t like India)”. This is where the deceit begins.

Many Kashmiris have been wronged by India. By glossing over this inconvenient truth, he tries to shift the blame from the perpetrators of atrocities to their victims. It is the equivalent of addressing rape victims by saying “Dear women friends (the ones who don’t like men)”. In one sentence, the cruelty suffered by those being addressed is rendered non-existent.

I must briefly digress here. Most Indians find the very idea of our nation being unjust or cruel to its citizens unacceptable. For most of us, political parties and politicians can do wrong, but the nation or our society cannot. “Mera Bharat mahaan” and anyone who wants to add a but or question this belief is declared “beimaan”.

Criticism and questions are met with the retort – if you don’t like the country, you can go to another country. One is also accused of “defaming” the country – as if our attempt at denial and suppression of truth isn’t visible to the world. As if merely a repeated assertion that we are great will make us great.

One problem with this attitude is that the “integration” that Chetan Bhagat appears to be seeking is, inter-alia not possible as long as we live in denial. You can’t simultaneously call the victim a liar on one hand and seek reconciliation on the other.The intriguing thing is that until May 16, 2014, if you called the government “corrupt”, there was no doubt that it was the government of the day which was being accused and not the nation. Post May 16, any criticism of the government is also criticism of the nation, and how dare anyone criticise the government nation?

Every year, Australia celebrates National Sorry Day, May 26, to remember and commemorate the mistreatment of the country’s indigenous population.

On February 13, 2008 Kevin Rudd, the then prime minister of Australia gave a speech in the Australian Parliament, where he apologised to the “stolen generations” on behalf of the nation. The full speech is available here but it is important to quote some excerpts:

  • “There are thousands, tens of thousands, of them: stories of forced separation of Aboriginal and Torres Strait Islander children from their mums and dads over the better part of a century.
  • There is something terribly primal about these firsthand accounts.
  • The pain is searing; it screams from the pages.
  • The hurt, the humiliation, the degradation and the sheer brutality of the act of physically separating a mother from her children is a deep assault on our senses and on our most elemental humanity.
  • These stories cry out to be heard; they cry out for an apology.
  • Instead, from the nation’s parliament there has been a stony and stubborn and deafening silence for more than a decade; a view that somehow we, the parliament, should suspend our most basic instincts of what is right and what is wrong; a view that, instead, we should look for any pretext to push this great wrong to one side, to leave it languishing with the historians, the academics and the cultural warriors, as if the stolen generations are little more than an interesting sociological phenomenon.
  • But the stolen generations are not intellectual curiosities.
  • They are human beings; human beings who have been damaged deeply by the decisions of parliaments and governments.
  • But, as of today, the time for denial, the time for delay, has at last come to an end.
  • The nation is demanding of its political leadership to take us forward.
  • Decency, human decency, universal human decency, demands that the nation now step forward to right an historical wrong.
  • That is what we are doing in this place today.
  • This is not, as some would argue, a black-armband view of history; it is just the truth: the cold, confronting, uncomfortable truth-facing it, dealing with it, moving on from it.
  • Until we fully confront that truth, there will always be a shadow hanging over us and our future as a fully united and fully reconciled people.
  • It is time to reconcile. It is time to recognise the injustices of the past. It is time to say sorry. It is time to move forward together.
  • To the stolen generations, I say the following: as Prime Minister of Australia, I am sorry.
  • On behalf of the government of Australia, I am sorry.
  • On behalf of the parliament of Australia, I am sorry.
  • I offer you this apology without qualification.
  • We apologise for the hurt, the pain and suffering that we, the parliament, have caused you by the laws that previous parliaments have enacted.
  • We apologise for the indignity, the degradation and the humiliation these laws embodied.
  • We offer this apology to the mothers, the fathers, the brothers, the sisters, the families and the communities whose lives were ripped apart by the actions of successive governments under successive parliaments.”

Australia isn’t an exception.

Canadian prime minister Justin Trudeau recently announced that on May 18, 2016, he will make a formal apology in the House of Commons for the Komagata Maru incident where 376 passengers of mostly Sikh descent arrived in Vancouver and were refused entry into Canada due to the discriminatory laws of the time.

Chetan Bhagat in the piece says: “I write in this open forum because something terrible is happening in the Kashmir Valley.” Sorry, Chetan Bhagat but everything terrible is happening in Kashmir. For starters, murder.

This piece written by me illustrates how the members of the armed forces have been getting away with fake encounters for all too long, thanks to AFSPA.

Within last week about half a dozen people have been killed by the armed forces, including a 17-year-old boy studying in Class 11. Their alleged crime? They were protesting by throwing stones. This report claims, however, that the firing in Kupwara was entirely unprovoked and casts aspersions on the claims of stone throwing.

The tragic bit is, when Bhagat talks about “something terrible” happening in Kashmir, he isn’t referring to these deaths at all. They find no mention in his sermon. No, he washes away every crime committed by the government and the Army under the garb of the difficulties in controlling “terrorism that co-exists with a civilian population”‘.

Secondly, the irony in Bhagat’s piece is cruel, especially because he argues:

“Another issue is women’s rights. Half of the Valley’s people are women. Given the hold of fundamentalist Islam, their rights would be curbed under both the independence and Pakistan options. This half of the population would be better off with India. Or do what women want not matter?”

Women in the valley, like women outside the world want justice for the crimes perpetrated upon them. If Chetan cares about what women want he can start with reading this report which describes how members of the armed forces rape and get away with rape all too often.

He then cites the landlocked nature of Kashmir to argue that their best hope of a happy future is with India. What he seems to be saying is, your life is miserable, but this degree of misery is the best and the only choice you have, so suck it up.

I’m guessing Kashmiris, like most of us, want a future and a present with complete dignity and freedom. That they expect equality and not justification of murder on account of them being pawns in an international conflict. Bhagat reserves the cruellest bits for the concluding paragraphs of his post, where he astonishingly demands that it is Kashmiris who must “integrate” with India. “So, it is youth in the Valley who have to now start a movement to really solve this problem,” he writes.

Gee. I suspect those guys are busy mourning their dead Chetan Bhagat. They’re busy swallowing the indignity and humility heaped upon them for decades. They’re busy waiting for justice. They’re busy suffering on account of the “difficulties in containing terrorism”. They’re busy witnessing the horror of their women being raped by those who claim to be there for their security.

They’re powerless and helpless. And they’re expressing is grief and rage in the small ways that they can. Throwing stones when their loved ones are murdered and bursting crackers when India loses in a sport. Even that seems to trouble us so much, doesn’t it? We feel so much hurt at the bursting of crackers in a loss at a sport. Imagine then what those getting away with murder, rape and oppression must feel like to the victims of this oppression?

The first step to reconciliation is the oppressor acknowledging the oppression, not the oppressor demanding that the victims forget what happened and move on, because what other choice do they really have.

Dear Kashmiri friends, I hang my head in shame. I am ashamed at the injustice that Kashmiris have suffered for decades. I am not ashamed to accept that the nation I belong to perpetrated atrocities. Our nation cannot become great unless it accepts and embraces the dark chapters in its history and its present.

This article was first published on DailyO

India & AFSPA

I want to address today’s column only to patriotic Indians. Preferably those with an idea of India’s geographical contours – knowledge about the fact that India includes several states – for example, West Bengal, Goa and Jammu & Kashmir. A sense of fraternity/Indianness with Indians living in *all* states and not just a few will be an added bonus.

In the year 2000, the Indian military killed seven men in Pathribal village, in the Anantnag district of Jammu & Kashmir. The Army claimed that those killed were ‘foreign militants’. Locals disputed this claim and 12 years later the Central Bureau of Investigation reported to the Supreme Court that those killed were in fact innocents and that the killings “were cold-blooded murders and the accused officials deserve to be meted out exemplary punishment.”

Please pause here for a moment. The report did not say that the incident was a case of a mistaken identity. It did not say that the dead men were collateral damage or victims of an accident. The words used, I repeat are ‘cold blooded murders’. The Supreme Court let the army decide whether the accused would be tried in a civilian court or a military court. The Army tried them in a military court and concluded that there was no case against the officials.

Innocent Indians were murdered and no one was held accountable.

In 2013, the Extra-Judicial Execution Victim Families’ Association, Manipur, and Human Rights Alert, Manipur, filed two separate petitions, seeking constitution of a Special Investigative Team to investigate 1,528 cases of alleged fake encounter killings by security forces in the disturbed areas of Manipur between 1979 and 2012. The court constituted a committee and picked six cases randomly for investigation by the SIT. The report submitted by the SIT found all six of the ‘encounters’ to be fake.

At the heart of these murders lies the Armed Forces Special Powers Acts—which inter alia grant to the armed forces a license to kill with near impunity. Those who support this act argue that such immunity is necessary to enable the armed forces to arrest terrorism without worrying about court cases in each instance. There is also a belief that the areas in question are so sensitive or disturbed that collateral damage is inevitable. ‘After all, in a life or death situation, a jawan cannot stop to ask whether a person is a militant or a civilian’ is the contention.

Any prosecution against a member of the armed forces requires the sanction of the central government. The theory this is supposed to ensure the guilty are held accountable in AFSPA regions without involving the army in vexatious litigation, that could compromise the forces from doing their job. In practice, here’s what happens: Defense Minister Manohar Parrikar recently informed Parliament that the defense ministry has not accorded sanction for prosecution under AFSPA since 1991. Such sanctions were requested only 38 times, have been rejected in 30 cases while eight are still pending.

Earlier this week four people were killed in J&K. Allegedly, two of them were shot dead when they were protesting the molestation of a girl by armed forces personnel. One of the people shot was a young, gifted cricketer who nurtured hopes of joining the Indian cricket team. A video was later released in which the Kashmiri girl who was allegedly molested says she was assaulted by a local, not an army man.

Various entities have conflicting versions to offer regarding the incident. However the clouded sequence of events actually played out, this fact is undisputed – those protesting were doing so by throwing stones at armed forces personnel. The stones were met with bullets in the head, by trained members of the armed forces.

It is clear that the murder of innocent civilians is no longer restricted to so-called collateral damage, but has become uncomfortably frequent-—to put it mildly. Parrikar has said that the army cannot operate sans AFSPA because it needs ‘appropriate powers’ to maintain internal security. In the face of data which shows that innocents are routinely dying, how can our response simply be to do nothing? How can we be comfortable with the fact that there are zero checks and balances on the powers accorded under AFSPA? Is it even possible to have a check and balance on such an unbridled and excessive power? Why doesn’t the matter receive our constant and urgent attention?

My argument is simply this. It is AFSPA which is disturbing internal security and it needs to go.

How are the victims of this law and their loved ones expected to react to their fate? Can they be justifiably expected to chant Bharat Mata ki Jai? Will you feel surprised if they seek azadi? How would you feel if you were in their situation?

Does the murder of innocent fellow Indians affect you? Or is your empathy and outrage subject to the identity of the murderer?

This article was first published in The Mumbai Mirror

Kanhaiya Kumar’s Bail Order

“Do you even know what sedition is?”, was the question the Delhi High Court asked the Delhi Police on the day of Kanhaiya Kumar’s bail hearing. It proceeded to rap the police for lapses in the investigation. The preceding weeks had been dominated by reports that the videos ‘incriminating’ Kanhaiya were doctored. How would you have predicted the outcome of his bail application? I expected that the court will grant him unconditional bail and probably reprimand the police for arresting him callously. I was wrong.


Bail orders are usually brief, not a pronouncement on guilt or innocence. The order granting Sanjay Dutt bail in 1995 doesn’t contain a sermon on terrorism. The order granting R.K Pachauri bail doesn’t append a lecture on the rampant sexual violence against women.

The order granting Kanhaiya bail differs. After recording arguments advanced by all sides, the court emphasises the need to avoid ‘prejudging’ and ‘prejudice’. Irony died a cruel death, shortly thereafter.

The court cites two judgments, but not any by the Supreme Court that directly deals with sedition – such as Balwant Singh v State of Punjab where the apex court acquitted those who raised slogans of ‘Khalistan Zindabad’. It also fails to cite its own judgment in Greenpeace employee Priya Pillai’s case – where the court observed that the phrase ‘Anti-National’ is not even defined in most dictionaries and that belligerence of views on nationalism can often lead to jingoism.

The court then observes: ‘Today I find myself standing on a crossroad.’ Defying law and logic, the question then framed is whether Kanhaiya’s bail ought to be denied in view of his ‘anti-national attitude’. The phrase ‘anti-national’ can neither be found in the constitution of India nor in the Indian Penal Code. I wish the court had done all of us a favour and drawn up an exhaustive list of what constitutes an anti-national attitude since our freedom depends on it. Although, after this endorsement of the phrase by the court, I’m certain police stations and courts are going to be flooded with complaints of people exhibiting an anti-national attitude. The only crossroad I can imagine is where one road leads to upholding the constitution and the other leads to acting against anti-nationals- a conflict which is bothering many institutions and political representatives right now.

Whatever the phrase may mean, the court conclusively asserts that its existence can be gathered from the material before it. It then declares that as a president of JNU’s student’s union, Kanhaiya is accountable for all anti-national conduct on campus. I’m sure Kanhaiya wishes that the allegations against him were of being a nationalist and beating up journalists, since no one is being held accountable for that. The court also holds that the armed forces guarding our ‘frontiers in the most difficult terrain in the world’ have to be kept in mind while deciding bail. It observes that the slogans will have a demoralising effect on the families of martyred soldiers.

Why? Every bail application is an application asserting the right to liberty. Why do the sacrifices of the armed forces not have any bearing when the bail applications of those accused of encounters, riots, rapes etc. are decided? More importantly why must everyone stop asserting their rights or expressing discontent because the army guards our borders? Is the army guarding a piece of land or the liberty of people who live on it? How is it that the reasoning of a judgment echoes not the law but the statements of politicians and the arguments on social media?

The court then condemns the alleged slogans – slogans whose utterance is yet to be proved by anyone. It condemns students who grieve for Afzal Guru, conveniently forgetting that Justice AP Shah, a former judge of the Delhi High Court and aformer chairman of the Law Commission, publicly stated that he believed that Guru’s and Yakub Memon’s executions were politically motivated.

In the middle of this preaching is a declaration that the alleged slogans are not protected by the right to freedom of speech and expression. That’s problematic. First, the court exceeds jurisdiction -the only question before it is whether Kanhaiya is entitled to bail or not. Second, this line of enquiry requires that the court specify the constitutional restriction to speech under which the act falls, and it doesn’t do that. Third, the court prejudices the mind of the trial court which will be adjudicating in the case.

The most inhumane part of the judgment is however saved for the conclusion where the court calls the thoughts of those who may or may not have raised the alleged slogans an ‘infection’. It adds if the infection is not cured with antibiotics it may need to be ‘amputated’.

Where does this metaphor originate from? An excerpt from the book ‘Genocide and Fascism: The Eliminationist Drive in Fascist Europe’ written by Aristotle Kallis is pertinent here:

Weindling detected in the growing medicalisation of both ‘health’ and disease’ the seeds of a trend that would become ubiquitous in all cases of twentieth century genocide: the extension of the medical metaphor… from the condition itself to the individual carrying it… The strategy deployed to deal with such problems Weindling argued, was confinement and disinfection- all within a medicalised imagery of elimination that was depicted as the only sensible solution for restoring the ‘health ‘of the affected collectivity. It should come as no surprise, then that discourses associated with genocide have always tended to present the chosen victims in terms of a lethal medical threat (vermin, pest, plague etc.).

This article was first published in Mumbai Mirror