Gopal Subramanium

Parsi Women Married Outside Community Can Perform Parents’ Last Rites, Says Supreme Court

Earlier, the Supreme Court had said that the law does not sanction the concept of a woman’s religion getting merged with her husband’s faith after an inter-religion marriage.

CAs per the tradition, a Parsi woman loses her religious identity after marriage outside the community and is consequently barred from visiting the ‘Tower of Silence’ in the event of death of her Parsi family members. Credit: PTI

New Delhi: A Parsi Trust today broke age-old traditions and informed the Supreme Court that it would allow a Parsi woman and her sisters, who have married outside the community, to visit the ‘Tower of Silence’ and attend prayers in the event of the death of their parents.

A five-judge constitution bench headed by Chief Justice Dipak Misra, which is dealing a legal question whether a Parsi woman loses her religious identity if she marries a man from a different religion, lauded the stand of ‘Valsad Parsi Trust’ to allow Goolrokh M. Gupta and her married sisters to attend prayer in the temple of fire and the last rites of parents after their death.

The Trust, represented by senior lawyer Gopal Subramanium, said, “It is agreed and declared between the petitioner and respondent (trust) that the respondent will, on compassionate grounds, permit the petitioner to attend the funeral prayers (Paldust ceremony) of her parents performed inside the prayer hall of the Bungli (bunglow) of the Tower of Silence complex (Doongerwadi) complex at Valsad.”

The Tower is used for funerary purposes by the adherents of the Zoroastrian faith, in which the traditional practice for disposal of the dead involves the exposure of the corpse to the sun and vultures.

The bench, also comprising Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, said the statement of the Parsi Trust “meets the present requirement of the petitioner and her sisters” and made it clear that the issues relating to Gupta’s constitutional rights will be adjudicated upon at a later stage on January 17.

When the court asked whether it can pass an order that now such women will be allowed to attend last prayers, the senior lawyer said he has taken instructions only from the Valsad Trust and there were several other trusts as well.

As per the tradition, a Parsi woman loses her religious identity after marriage outside the community and is consequently barred from visiting the ‘Tower of Silence’ in the event of death of her Parsi family members. Subramanium, who was asked on December 7 by the court to take instruction from the Trust on allowing the woman, said in all fairness, the trust has decided to allow the woman and would arrange the priest (mobeds) for her if she cannot manage on her own to perform the last prayers.

Moreover, the children of the woman could also “attend the funeral ceremonies of their grand parents by sitting in the pavilion opposite the Bungli along with the members of the communities both Zoroastrians and otherwise”.

Earlier, the Supreme Court had said that the law does not sanction the concept of a woman’s religion getting merged with her husband’s faith after an inter-religion marriage.

Gupta has challenged the customary law, upheld by the Gujarat high court in 2010, that a Parsi woman marrying a Hindu loses her religious rights in the Parsi community and hence, loses the right to visit the ‘Tower of Silence’ in the event of her parents’ death to perform the last rites.

The high court had held that a Parsi woman is deemed to have converted to Hinduism after she married a Hindu man. However, the top court bench had said it was only the woman who can decide about her religious identity by exercising her right to choice.

On October 9, the top court had referred to a five-judge constitution bench the legal question whether a Parsi woman loses her religious identity after marrying a man of different religion.

The woman, in her appeal filed in 2012, said she had married a Hindu under the Special Marriage Act and should be allowed to retain her place in the Parsi community.

She assailed the high court finding that a woman universally loses her paternal identity just because of her marriage with a man practising the Hindu religion. She had approached the high court contending that even after her marriage with a Hindu man, she has continued to follow Zoroastrian religion and thus had the right to enjoy all privileges under the Parsi religion, including right to offer prayers at Agiari, a Parsi temple having the ‘holy fire’ and the ‘Tower of Silence’.

Gupta contended that her rights as a Parsi Zoroastrian cannot be denied on the ground that she has married a non-Parsi man. She had also argued that a male Parsi Zoroastrian continued to enjoy all rights available to a born Parsi, even if he is married to a non-Parsi woman.

Justice Jayant Patel’s Resignation Marks A Moment of Crisis for the Judiciary

This is the fourth example of judges or candidates for judgeship paying the price for having contributed to rulings which went against the interests of those currently in power at the Centre.

Karnataka high court. Credit: Sidharth Telang/Flickr CC-BY-NC 2.0

The resignation of Justice Jayant Patel as a judge of the Karnataka high court marks a crisis moment for the judiciary in India. He quit following the order of his transfer to the Allahabad high court, where he would have been the third seniormost judge in the hierarchy, as compared to his current No. 2 position in the Karnataka high court: when the current chief justice, Subhro Kamal Mukherjee retires on October 9, he would ordinarily have become acting chief justice of the court.

Given the perception that Justice Patel is paying the price for directing a CBI investigation into the Ishrat Jahan fake encounter case when he was the acting chief justice of the Gujarat high court, both the Karnataka and Gujarat Bar Associations have announced a boycott of the courts for a day. The CBI’s probe in the Ishrat Jahan case led to the arrest and chargesheeting of a large number of senior Gujarat police officers for her cold-blooded killing and was a major embarrassment for Narendra Modi, who was chief minister of Gujarat at the time.

In an interview to Bar and Bench, Justice Patel has said that he resigned to be relieved from the institution, and that he wished to make no other comment. But his silence over the apparent reasons for his resignation is eloquent.

Eerily similar to previous supersessions to the post of CJI

Compared to other branches of the state, crises in the judiciary are rare. Certainly, the resignation of a senior judge in protest at what he or she perceives to be an injustice marks the onset of a crisis phase. For the protest is not just an act of highlighting an individual grievance. It also underlines the fact that those entrusted with the responsibility of upholding the independence of the judiciary have allowed themselves to be used by the executive as pawns in pursuit of a vindictive agenda.

Justice Jayant Patel, who resigned as a judge of the Karnataka high court on September 25, 2017. Credit: Karnataka high court

In a sense, much has changed in the relations between executive and the judiciary since the previous crisis moments witnessed during the infamous supersession of the chief justice of India by Indira Gandhi in 1973 and 1977. The invention of the collegium system to appoint and transfer judges of the high courts and Supreme Court in the 1990s is one such change which marked a complete break with the government’s primacy in the process.

As long as governments with fragile majorities were in office at the Centre, this break appeared more real than imaginary. With the coming to power of a single party majority government in 2014, one wonders whether the primacy of the judiciary vis-a-vis the executive in the process of appointments and transfers is more imaginary than real.

By resigning, Justice Patel is perhaps telling us that the independence of the judiciary – in defence of which the Supreme Court struck down the National Judicial Appointments Commission in 2015 – may indeed be a farce, as the Supreme Court’s collegium has hardly been able to safeguard its primacy in the face of executive stubbornness over appointments and transfers of judges.

The non-appointment of the former solicitor general, Gopal Subramanium as a judge of the Supreme Court in June 2014 despite the collegium having recommended his name marked the beginning of this phase. The transfer of Justice Rajiv Shakdher from the Delhi high court to the Madras high court and that of Justice Abhay Mahadeo Thipsay from the Bombay high court to the Allahabad high court made it clear that the collegium had no option but to cede ground to the executive in practice, whatever the Supreme Court might have held in its First, Second, Third and Fourth Judges cases.

It is no coincidence that in each of the three examples referred to above, the candidates for the high office of judges or the incumbent judges had to pay the price for having contributed to rulings which went against the interests of those currently in power at the Centre.

Gopal Subramanium, as amicus curiae, was responsible for the Supreme Court entrusting to the CBI the investigation into the disappearance of Kausar-bi and Sohrabuddin Sheikh in a fake encounter. The then Modi government in Gujarat opposed the decision.

Justice Rajiv Shakdher, as a judge of the Delhi high court, embarrassed the Modi government in 2015 by setting aside a lookout notice issued by the Intelligence Bureau against the Greenpeace activist, Priya Pillai, preventing her from going abroad to address a UK parliamentarian group. Justice Shakdher defended her right to travel, and express dissent.

Justice Thipsay, as a judge of the Mumbai sessions court in 2006, had imposed life sentences on nine of the 21 accused in the Best Bakery riot case during the 2002 Gujarat carnage – a case that had been transferred out of Gujarat by the Supreme Court because of the Modi-run state government’s manifest unwillingness to seriously investigate and prosecute the crime.

While Gopal Subramanium withdrew his candidature for Supreme Court judgeship to prevent any embarrassment to the collegium when it became clear that the Modi government had rejected his name, Justices Shakdher and Thipsay, despite their lack of consent to their transfers for personal reasons, acceded to the new postings. Justice Thipsay, who served just a year in the Allahabad high court, before his retirement, could not fathom why he was transferred, despite his reluctance, considering that his remaining tenure was very limited.

Justice Jayant Patel felt compelled to quit because his transfer seemed to have been ordered in order to forestall his possible elevation as the acting chief justice of the Karnataka high court.

Powerful interests then and now

In the history of the Indian judiciary, April 25, 1973 and January 29, 1977 are both considered as crisis moments – when the senior-most judges of the Supreme Court quit following their supersession, in the appointment of the chief justice of India by the then prime minister, Indira Gandhi. On April 25, 1973, Justice A.N. Ray was appointed as CJI by superseding three senior-most judges.

The three judges were part of the majority in the Kesavananda Bharati case, which held only the previous day, that parliament cannot use its amending power to alter the basic structure of the constitution. The three judges – Justices J.M. Shelat, K.S. Hegde and A.N. Grover – resigned following the appointment of Justice A.N. Ray as CJI, after the retirement of the outgoing CJI, S.M. Sikri.

Justice H.R. Khanna. Credit: Supreme Court of India

Justice Ray was considered as a judge who was inclined to decide in favour of the government, as the late T.R. Andhyarujina noted in a perceptive article in the Indian Express titled ‘When the bench buckled’.

On January 29, 1977, Justice H.R. Khanna was superseded by Justice M.H. Beg as CJI, following which he resigned. Justice Khanna was the lone dissenter in A.D.M. Jabalpur v Shivkant Shukla decided by the Supreme Court’s five judge constitution Bench in favour of the government during the Emergency. The majority judges in this case held that fundamental rights could be suspended during the Emergency, and the legality of detention orders, even if mala fide and without authority of law, could not be questioned.

In the recent judgment elevating the right to privacy as a fundamental right, the Supreme Court’s nine-judge constitution bench formally overruled this judgment after 40 years. It was not necessary to do so, as successive benches of the Supreme Court had never considered A.D.M. Jabalpur a binding precedent, and impliedly overruled it. Besides, Article 359 was amended, following the 44th amendment to the constitution, to provide that during the operation of an Emergency, the power of the president to suspend the right to move a court for the enforcement of fundamental rights shall not extend to Articles 20 and 21 – which essentially guarantee the right to life.

By formally revisiting that shameful chapter in its history, and taking symbolic steps to formally erase its memory from its history, the Supreme Court might have felt it has unburdened itself, after 40 years.

While that symbolic gesture was hailed for its significance, one is tempted to ask whether it has had any real influence on the current collegium.

An embarrassing question which may be posed to the collegium is whether by failing to elevate Justice Jayant Patel as the chief justice of the Karnataka high court or as a judge of the Supreme Court, are its members not behaving in the same way as their predecessors did in the infamous A.D.M.Jabalpur case. If the majority judges in that case were guilty of not displaying enough courage to stand up to powerful interests, today’s collegium, despite the ringing assertions of judicial independence made in the intervening years, may prove to be just as pusillanimous in defending that cherished objective as their unillustrious predecessors.

Haji Ali Dargah to Allow Women Into Sanctum Sanctorum, Trust Tells SC

The high court in its 56-page judgement had also noted that the “right to manage the trust cannot override the right to practice religion itself”.

Haji Ali dargah to give women complete access. Credit: Wikimedia Commons

New Delhi: Women will be granted access to the sanctum sanctorum of the Haji Ali shrine in Mumbai, the dargah trust told the Supreme Court on Monday and sought four weeks to make the requisite infrastructural changes.

A bench comprising Chief Justice T.S. Thakur and Justices D.Y. Chandrachud and L. Nageswara Rao granted time to the trust and disposed of its appeal against the Bombay high court order asking it to give equal access to women also.

Senior advocate Gopal Subramanium, appearing for the trust, said an additional affidavit had been filed on behalf of the dargah trust saying it was willing to allow women inside the shrine.

On October 17, the apex court had extended the stay granted by the Bombay high court to facilitate an appeal against its decision to lift the ban on entry of women into the sanctum sanctorum of the dargah in Mumbai.

Earlier, the Supreme Court had expressed hope that the trust, which had challenged the high court judgment, “will take a stand which is progressive”.

Subramanium had also assured the bench that he was on a “progressive mission” and said all holy books and scriptures promoted equality and nothing that was regressive in character should be suggested.

The trust moved the apex court challenging the Bombay high court order lifting the ban on women from entering the sanctum sanctorum of the renowned Muslim shrine in South Mumbai.

The high court, on August 26, had held that the ban contravened Articles 14, 15 and 25 of the constitution and said women should be permitted to enter the sanctum sanctorum like men.

The high court had allowed a PIL filed by two women, Zakia Soman and Noorjehan Niaz, from the NGO Bharatiya Muslim Mahila Andolan, challenging the ban on women’s entry into the sanctum sanctorum of the dargah from 2012.

It had granted a six-week stay on the order on request of the dargah trust so that it could file an appeal in the Supreme Court.

The high court had held that the trust had no power to alter or modify the mode or manner of religious practices of any individual or any group.

The high court, in its 56-page judgment, had also noted that the “right to manage the trust cannot override the right to practice religion itself”.

Flashback: What the Constituent Assembly Debates Tell us About AFSPA’s Problems

The draconian law is almost as old as independent India and the criticisms being made of it today were anticipated by many of the country’s first legislators.

The first day of the Constituent Assembly of India. Credit: Wikimedia Commons

At a time when demands are being raised from across the country to repeal the Armed Forces (Special Powers) Act (AFSPA), The Wire takes a look at how the issue was first debated in the Constituent Assembly of India and the circumstances that led to the controversial law’s adoption.

The information has been obtained from parliament’s library by Venkatesh Nayak, coordinator of the Access to Information Programme of the Commonwealth Human Rights Initiative. Nayak said: “The purpose of placing these debates in the public domain is to enable people to debate the issue in an informed manner with knowledge of the concerns of lawmakers in the past.”

The Supreme Court in July dealt a potentially heavy blow to the immunity enjoyed by security personnel under AFSPA, when it held that “there is no concept of absolute immunity from trial by a criminal court” if a soldier or army officer has committed an offence. It also held that there was a need to enquire into every death caused by the armed forces in a disturbed area, irrespective of whether the victim is a dreaded criminal, or a militant, or a terrorist, or an insurgent.

More recently on September 7, the National Human Rights Commission also expressed its exasperation before the Supreme Court over the armed forces taking protection under the Act. In his submission, senior advocate and NHRC counsel Gopal Subramanium noted how the security forces resort to AFSPA when faced with a human rights complaint. “In Manipur, it took three years to get information regarding a case of alleged human rights violation. The NHRC is a responsible fact-finding body. No government can say it is not accountable for the violation of human rights,” Subramanium had stated.

Tracing the legislative history of the law

From parliament’s archives, Nayak obtained a scanned copy of the debate on AFSPA, 1948, which was held in the constituent assembly in 1947. He also obtained the Disturbed Areas AFSP Ordinances of Bengal, East Punjab and Delhi and the North-West Frontier Province (NWFP). Of these the ordinances, Bengal and NWFP had not empowered the armed forces to use force to the extent of causing death. That power was granted only in the East Punjab and Delhi ordinances. All these ordinances were replaced by the AFSPA Act of 1948, which empowered the armed forces to shoot and kill if necessary. Later on, the AFSPA of 1958 was enacted.

The Armed Forces (Special Powers) Bill was introduced in first session of the constituent assembly of India by the first defence minister, Sardar Baldev Singh. It was debated in the house in December 1947.

Objectives and reasons

Singh’s reasons for introducing the Bill were that “in the beginning of this year when communal riots broke out in Punjab on an unprecedented scale, the administration of that part of the country completely broke down. The police there failed to perform its duties and in some cases they even refused to work. Another factor which must be borne in mind is that in that part of the country the police was 90% of one community. The communal riots took a very ugly shape and the provincial government requested the government for military help. We sent a large number of troops, but the presence of troops there did not improve the situation much. It was not on account of the inadequacy of the troops, but because the troops were spread over the whole of that part of the country and under the laws then prevailing they were not in a position to take any action.”

He noted that, “representations were made to the government of India by several people, by the Section 98 administration of the Punjab province and also by public men, that additional powers should be given to the armed forces”. He told the house: “In deference to the wishes of the local administration and other bodies, an ordinance was promulgated which is before the house. This ordinance, sir, expires early in January or sometime in the middle of February and if we do not pass this Bill, the ordinance will lapse and the armed forces will find themselves in a difficult position. It is for this reasons that this Bill is placed before the house so that we do not have to resort to an ordinance again.”

“The provisions of the Bill,” Singh admitted, “may look drastic, but I wish to point out that up till now, they have worked without any hardship to anybody. The powers cannot be used unilaterally by the armed forces. Firstly, the provincial government has to declare an area as a disturbed area; and secondly, the provisions of the Bill are only for a year. If at the end of this year, we consider that it is necessary to extend the provisions of the Bill for another period of one year, only then will the Bill be so extended.”

The need for covering more areas

On how and why the Bill sought to cover more areas, Singh said:

“Up to now this ordinance was in force in the Punjab and later on, when the communal situation in others parts of the country deteriorated the governments of UP, Bengal and Assam asked the government of India to extend the provisions of this ordinance to those parts of the country also.

“So, at present the position is that this ordinance is in force in four provinces of India. Under this Bill we will be taking power which will apply to the whole of India, but it will be open to the provincial governments to enforce this Bill in any way they like. They have complete power, first to declare an area as a disturbed area and only then will the provisions of this Bill come into operation.

“That in short is the history of this Bill and the provisions that are contained in the Bill seem to be rather drastic; but I assure the house that after the experience we have up till now, we are convinced that the powers have not been unnecessarily used and there have been no complaints from any of the provinces. I hope the house will be convinced, if amendments are moved, that these powers will be used in the right way and there will be no complaint about it.”

AFSPA was originally mooted for one year only

Ironically, AFSPA is almost as old as independent India. It has been repeatedly modified and extended though it was originally meant to be in force for only a year. As Singh had told the house, “We have no intention at all to extend the period beyond one year. Some honourable members may have a feeling that perhaps we will go on extending it beyond one year or even later. I can assure the house that we have absolutely no such desire and it will be extended only if the communal situation does not improve.”

Maharaja Hari Singh of Kashmir, who signed the Instrument of Accession that made Kashmir a part of India. Kashmir has been under AFSPA for several years. Credit: Wikimedia Commons.

Strong opposition

During the discussion of the Bill, Pandit Thakurdas Bhargava of East Punjab had pointed out that “either the civil authorities can function or they cannot function. If they cannot function, it is a case of giving over the command to the military authorities”.

He also spoke about a contingency: “Suppose the magistrate or civil authorities call the aid of the military and the question arises about quelling the disturbance or the riot, would the provision of this Act apply or the provisions of the Criminal Procedure Code?”

Providing the answer to the same, he said, “According to the provisions of this Act, irrespective of whether the magistrate is there or not, the military have the last say and they can shoot and kill any one they please.”

‘Misconceived and mischievous’

Bhargava had also made a strong case against the law, saying, “now let us see to what cases and contingencies this Bill shall apply and I wish to read to you the first section which shall show how misconceived and mischievous this Bill is.”

He went on to add that the Bill provides that:

Any commissioned officer, warrant officer or non-commissioned officer of His Majesty’s military or air forces may, in any area in respect to which a proclamation under sub-section (1) of section 15 of the Police Act, 1861, is for the time being in force, which is for the time being by any form of words declared the provincial government under any other law to be a disturbed or dangerous area – if in his opinion it is necessary to do so for the maintenance of public order, after giving such warning, if any, as he may consider necessary, fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the said area, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons.

On a reading of this, Bhargava said “the first point is that any commissioner officer need not give any warning at all, because the words are “after giving such warning, if any…”. According to the provisions of the Criminal Procedure Code “the magistrate has to give warning, the police officer has to give warning; every person who disperses an unlawful assembly has to give a warning.”

Pandit Thakur Das Bhargava. Credit: policypulse.com

But according to these provisions, he cautioned, “it will be the right of this commissioned officer to shoot or kill people in any manner he likes.”

Bhargava had also argued that the definition of what constituted an “assembly” of people was also vague. “In Gurgaon sometime back, there was a riot and it was a fairly serious riot. After three or four days, I went to Gurgaon because I received a wire from a lawyer friend of mine. The authorities had taken upon themselves to arrest hundreds of persons. Many of them were lawyers. I called some lawyers to know from them what the matter was but they could not come to my place because they said that five persons could not assemble. …….. if such an ordinance is made, I think a commissioned officer will be within his right to go into a person’s house and shoot the people there.”

The member from East Punjab said that the words “who is acting in contravention of any law” were also too vague and “any innocent person can come within the clutches of law”. He explained that under the provisions, if “one or two persons are engaged in the act of looting – they cannot be fired at …. but if they are acting in such a manner that they make an assembly of five or more persons, however lawful, then they can be fired at.”

Bhargava had further stated that “if a person was committing murder, arson or loot and then he got fired at, I could understand it. But to define the occasion in such a vague manner that any innocent person could be fired at, by the sweet will of a commissioned officer, is too much.”

He also referred to the anomalies in clause (b), which spoke about the powers to “arrest without warrant any person who has committed a cognisable offence, or against whom a reasonable suspicion exists that he has committed, or is about to commit a cognisable offence”, saying the armed forces of a country usually have the same character as the people of that country.

“If the police are bad, then I cannot say that our troops will be found to possess much higher character. According to the admission of the honourable mover, the police is corrupt and police rule has failed and therefore the military is called in. What happened during the disturbances in Punjab? When the Muslim police failed, the Baluchis came in and did things which the police could not do. So far as these powers are concerned I am of the opinion that if these powers can be abused by the police, they can be abused much more by the armed forces.”

Observing that clause (b) covered a person “about to commit a cognisable offence”, he said “according to the provisions of the Criminal Procedure Code, no police office is given powers to arrest a person who is about to commit a cognisable offence”.

“It is a very dangerous power that a person should be authorised to arrest a man who is about to commit a cognisable offence …….. it is too great and arbitrary a power,” he said.

Bhargava had also argued that “there is no such safeguard here that the military should do as little harm as possible. On the contrary power is given to kill or behave in any manner they please”.

In this Bill, he said, the officer concerned has been vested with a very large discretion. “If he thinks necessary to do a particular act for the maintenance of public order, he can do so ….. no prosecution, suit or other legal proceeding can be brought against him”.

Bhargava, who had seen the riots in what is now Pakistan, had also warned that this Bill will not go a long way in providing a solution to the difficulties. “On the contrary, as soon as the emergency is over, there will be such a reign of terror, as happened in Punjab, which will be more terrible than the emergency itself when the killings were going on.”

Sounding a note of caution, he also observed that this measure applies to the whole of India. “Therefore it is all the greater reason that we should be circumspect and not inflict any great hardship on the people whom you are not taking into consideration. It is a very drastic measure ….. It really affects the rights of the public in general. It gives more power to the army than we are accustomed to.”

Sikh refugees escaping communal violence in 1947. Credit: Wikimedia Commons

‘Essential for provisional governments’

Activist, writer, lawyer and educationist, K.M. Munshi from Gujarat, however, defended the Bill saying it was “essential that the provincial governments should be given the power to declare an area disturbed in which they can secure the assistance of the military”.

K.M. Munshi. Credit: Wikimedia Commons

Asked by Shibban Lal Saksena what the guarantee was, that the law will not be used against labour movements, he replied: “… if a labour struggle assumes such proportions that it threatens the existence of public order or the state, not only this Act but the whole force of India must be used to suppress it. I refuse to be frightened by words …… We know what labour struggles mean in some hands: should governments in power be made so weak and so frightened in the name of civil liberties that it may not take any drastic action and totter?”

As for the fears expressed vis-à-vis the army, he said, “I claim for them that when they will discharge their duty, they will do it not as an instrument of a foreign power to keep this country in subjugation, but as patriotic citizens whose sole interest is to see that law and order is maintained.”

In his response to the debate, the defence minister said “now short of martial law, this is the only alternative that we can resort to.”

Agreeing with the concerns expressed, Singh said: “Hardly three months ago we got our independence after 150 years of slavery. And if we cannot manage the affairs of this country successfully we will stand condemned in the eyes of the world. It is therefore in order to enhance the prestige of the government and to save innocent lives that it is necessary for us to have these powers.”

The law was passed in the form the government wanted, and despite the promise of a one-year time limit, AFSPA, in a virtually similar avatar remains on the statute books to this very day.

‘Drastic and extraordinary powers’

One member who opposed the measure at the time, H.V. Kamath, said that even though the measure was intended to be temporary, “if during that period a certain section of our forces – be they the police or the army – is going to be invested with very drastic and extraordinary powers, then it is a matter for thought.”

Anticipating the future impact of the law as the years went by, Kamath said:

“Power is all right so long as it is used for the benefit and the good of the people. But are our troops so perfect that they may not abuse such powers conferred upon them?” he had asked.

He also referred to the Azad Hind Fauj of Netaji Subhas Chandra Bose in this context and said, “in addition to ordinary methods of military training, they were given what was called spiritual training. That was why that army did such wonderful things.”

H.V. Kamath. Credit: punjabimanch.com

When coaxed by Pandit Balkrishna Sharma to speak about “internal aggression”, Kamath replied, “in the Central Provinces and Berar whence I come, some areas were declared as disturbed or dangerous in the very flimsiest pretext. After all, you all know that the CP and Berar have been very free from communal disturbances.”

Kamath also said that AFSPA went against the spirit of fundamental rights. “I remember, sir, if my memory does not betray me, that the fundamental rights – at least some of which were adopted by the constituent assembly only a few months ago – did regard the privacy of a home as more or less sacrosanct; but here, sir, is a measure which confers upon the armed forces this power to enter and search without warrant any premises, make any arrests, recover any person, any property reasonably supposed to be stolen property, or any arms kept in the premises.”

Kamath also said that police should not get the feeling that they are not trusted. He also said that the Bill was not being legislated in war time, but when “there is peace in India”. Questioning where the safeguards were for people assembling peacefully and the protection owed to them from an army officer, “who may have been annoyed by certain civilian members”, he said, “we are clothing the army with such powers that we must see the darkest side possible of this picture.”

Experts See Pattern in Imposition of President’s Rule by Modi Government, Others Fault Congress

The Centre should have waited for the floor test to resolve the issue and should have gone to court against the Uttarakhand speaker’s decision if it felt aggrieved, says Prashant Bhushan.

Uttarakhand chief minister Harish Rawat addressing the media outside the assembly in Dehradun on Saturday. Credit: PTI

New Delhi: The imposition of president’s rule in Uttarakhand has not found favour with some constitutional experts who believe bringing down elected governments has become a sort of a trend which does not augur well for democracy. However, there are experts who have also supported the decision – on the ground that the political situation in the state was such that only fresh elections could provide a way out and that is only possible if president’s rule is imposed.

Senior lawyer Prashant Bhushan was candid in his criticism of the imposition of president’s rule in Uttarakhand on Sunday, which happens to be the second such instance – after the Centre intervened in Congress-ruled Arunachal Pradesh – this year. “It shows that the Central government is desperate to get rid of non-BJP governments in the states. Even if they are getting half an opportunity, they are getting rid of them. The standard technique is to get some people to defect and thereafter prevent the use of the anti-defection act and impose president’s rule.”

Bhushan sees a trend in the Centre targeting opposition states. “There are many things which this government at the Centre and the state governments are doing which are unconstitutional. They should have waited for the floor test tomorrow and they should have gone to court against the speaker’s decision if they were feeling aggrieved.”

Prashant Bhushan. PTI

While referring to the March 18 episode, Jaitley had stated that ‘this is for the first time in the history of Independent India that a bill is shown as passed even when it has been defeated’. But Bhushan counters that “if they feel the speaker is doing something illegal, they can always approach the high court or the Supreme Court. But they should not impose president’s rule. Whether the speaker is doing something illegal or not should not be left to the discretion of the Central government which has a political vested interest in the matter.”

Observing that president’s rule is imposed when the government of the state cannot be run in accordance with the constitution, Bhushan said that if there is a state which is a case in point right now it is Chhattisgarh. “The way lawyers, independent activists, researchers and journalists are being attacked in Chhattisgarh and attempts are being made to drive them out of the state, it is a classic case for imposition of president’s rule. It is absolutely clear that the government there cannot be run in accordance with the constitution.”

Coming to the issue of the proposed disqualification of the nine rebel Congress MLAs – to whom show cause notices were served by the speaker – ahead of the confidence vote that was scheduled for March 28, Bhushan said “the speaker’s actions may have been illegal”. He said these legislators could have been disqualified only on two grounds: “one if they had voluntarily left the party, which they had not, and secondly, if they had voted against the confidence motion and violated a whip issued by the party, but that too had not happened yet.”

The noted advocate said ideally the Centre should have waited for the floor test to resolve the issue and should have gone to court against the speaker’s decision if it felt aggrieved.

Senior advocate, Kamini Jaiswal, said, “Through its actions, the BJP has undermined the political system, democratic norms, constitution and electoral process.”

Kamini Jaiswal. Credit: PTI

Insisting that through its landmark judgment in the S.R. Bommai case – and several other orders – the apex court has clearly established that a floor test is the sole yardstick for proving a majority in a house, she said ideally this test should have been allowed to take place.

But since the Centre went ahead with the proclamation of president’s rule, Jaiswal questioned the logic behind the haste. “I hope the Supreme Court will take note of this conduct. They are playing with the constitution. I hope that the courts will come down heavily on such behaviour. They might be accused of judicial overreach. But we cannot allow this subversion of democracy to go on.”

For the BJP, she said, David Headley and rebel Congress leader Vijay Bahuguna are the new heroes. “These days anything these two people say is deemed the gospel truth. I think it is just bad times for the country. If this is the way an elected government is dismissed, then it says a lot. And who is this person who is mastering this move to topple of the government? He is the same former chief minister of the state who was removed by the Congress after charges of inertia and impropriety were levelled against him in the wake of the 2013 floods in the state. But now the BJP is joining hands with him and what else can we expect?”

Jaiswal said she always apprehended that the BJP would go all out to oust the elected governments of other parties in the states. So after Arunachal Pradesh and Uttarakhand, would it be Himachal Pradesh next? “Yes,” she replies.

Indira Jaising. Credit: PTI

Senior Supreme Court lawyer Indira Jaising said there can be no justification for imposition of president’s rule a day before the Assembly was to convene for a vote of confidence. Drawing a parallel with the developments in Arunachal Pradesh, she said: “I think they are doing the same thing they did in Arunachal Pradesh, the only reason was to preempt a show of strength on the floor of the house. So they are hoping to repeat what they did in Arunachal Pradesh. It goes against the grain of democracy because it is undeniable that whether a government enjoys a majority can only be tested on the floor of the House.”

On Jaitley’s insistence that the crisis had been precipitated by the actions of the speaker who had declared the money bill as passed when actually it had fallen due to more votes being cast against it, Jaising said, “That is no ground for imposition of president’s rule or for saying that the government has lost the majority on the floor of the House. It could only have been grounds to proceed against the speaker if it was proved that he did not act in accordance with the rules.”

Former Solicitor General Gopal Subramanium too agreed that the Centre erred in not allowing a floor test to take place to determine the strength of the ruling party in the state assembly.

“The first thing is the floor test. The point here is the floor test alone should have been the pearl’s drop. Second, for all parties, i.e, be it the governor or anyone, floor test is the first rule. But, similarly, if someone decides to go before the floor test and pass a money bill, that is not correct. In this case, according to me, both sides ought to have followed a common procedure under the constitution which contemplates a floor test, which did not happen finally.” Subramanium said.

As a professional lawyer, he said, one needs to look at a bit more at the reasons that led to dissolution. “What are the reasons which the governor gave while recommending the dissolution of the assembly?” he asked.

Gopal Subramanium. Credit: PTI

But from what had emerged out of the developments in the Uttarakhand assembly, he said, the important aspect was how the money bill was passed on March 18 “when the passage of the bill is purportedly undertaken in a House without a full majority having voted for it and it is claimed that it has been passed by the house. That is a very serious infraction of the Constitution.”

“Irrespective of who the political party is,” Subramanium said, “the degree of respect which is accorded to the democratic institution of a legislature is that bills have to be properly introduced, they have to be properly carried through – which means they have to be voted upon – and if there is any lack of support, then the speaker has a duty to call for a proper vote and there should be head count or a vote count on the basis of which the bill can be said to have been passed. The transaction of business within a house must be flawless and if a flaw is attached to it, then you forget other grounds, then this ground is enough to be considered (for imposition of President’s Rule).”

On the issue of the anti-defection law, he said it applies as soon as the 10^th Schedule operates – which means you act in a manner contrary to the terms of the schedule and you act contrary to a whip, which is a clear direction to act in a manner.

However, the former solicitor general clarified that casting of votes and disqualification are two different issues. “For the purpose of disqualification, a procedure has to be followed. For voting you have to go by the votes as polled. The speaker cannot say that the Bill is passed because I have disqualified the members without following the schedule.”

The correct procedure, he said, is to first have vote of confidence. “Only after that you can pass a bill, and during that if anybody commits an act of disqualification then he has to be proceeded under the 10^th Schedule.’’

Some constitutional experts – like former Attorney General Soli J Sorabjee and noted constitutional expert K. K. Venugopal – have, in the meantime, said that in the present case the reasons given in his report by the governor in support of imposition of president’s rule are worth looking into. But they have questioned the logic behind imposing president’s rule a day before the assembly was to have voted for or against the continuation of the government.

Sorabjee was quoted as saying that “at this stage it is difficult to comment on the constitutionality of the decision. But, I think they could have waited till tomorrow (Monday).”

On the other hand, Venugopal while observing that “it looks rather strange; first, it was Arunachal Pradesh and now Uttarakhand,” qualified his statement saying that it would not be proper for him to comment without going through the reasons cited by the governor.

Note: This article was edited on March 28 to add the comments of Indira Jaising, Gopal Subramanium, Soli Sorabjee and K.K. Venugopal

Centre’s Delhi Notification Unconstitutional: Experts to AAP

Both KK Venugopal and Gopal Subramanium weigh in on the stand-off between the Modi and Delhi governments.

New Delhi: Two eminent lawyers today termed “unconstitutional” and “illegal” the Centre’s notification giving absolute powers to Delhi Lt Governor in appointment of bureaucrats and on subjects like police and public order and said the Chief Minister’s authority cannot be undermined.

After the AAP government sought their opinion, constitutional expert K K Venugopal and former Solicitor General of India Gopal Subramanium questioned the very foundation of the gazette notification issued by the Home Ministry and wondered whether it has requisite approval of the President.

Their opinion will lend weight to Chief Minister Arvind Kejriwal in his ongoing confrontation with the Centre over the division of powers between the elected government and the Lieutenant-Governor. Kejriwal has convened a special session of the Delhi Assembly to discuss the crisis on Tuesday.

Venugopal said if a democratically elected government has been brought into power by the people, then the ‘public services of the state’ should be controlled by the elected government.

Giving a thorough review of the notification linking provisions in the Constitution and Supreme Court’s ruling in a number of cases, he said the notification is “unconstitutional, illegal and void”.

On appointment of Chief Secretary, Venugopal said “undoubtedly, the Chief Secretary is the lynchpin of executive governance. He is to have the confidence of the Chief Minister and the Council of Ministers, and so too other secretaries to the government.

“If government is given a Chief Secretary who obeys the orders of the administrator and not of the council of Ministers or the Chief Minister, this would be a sure recipe for disaster.”

The appointment of senior bureaucrat Shakuntala Gamlin as acting Chief Secretary by LG last week had triggered a full-blown war between the ruling AAP and the Lt Governor, with Kejriwal questioning the LG’s authority and accusing him of trying to take over the administration.

In the notification, the Home Ministry said that the LG will have jurisdiction over matters connected with services, public order, police and land and he may consult with the chief minister whenever he thinks necessary in issues of services using his own “discretion”.

In his opinion, Subramanium said the notification “is illegal and unconstitutional. Presumably, it has been issued without the requisite Presidential approval.”

In a sharp reaction to issuance of the notification, Kejriwal accused the Centre of “back-stabbing” the people of the city by “siding” with the Lt Governor and protecting the corrupt.

Jaitley view

Meanwhile, Finance Minister Arun Jaitley said on Saturday that full statehood rights cannot be given to the Delhi government unless there is a general consensus in the country on the issue as it is the national capital.

“Whenever there will be general consensus in the country on giving full statehood status to the national capital, it is possible. But till that is not done, full statehood rights cannot be given to the state government,” Arun Jaitley said.

He was asked about BJP’s views on granting full statehood to Delhi, as promised by it in the past. He, however, noted that the confusion over rights exercised by the Centre and the elected government would lead to “offices being shut down” and to avoid that the Home Ministry had issued the classificatory notification yesterday.

“If there is confusion, then offices will be locked. And to ensure offices are not shut, it is the Centre’s responsibility to clarify, and the Home Ministry has fulfilled that responsibility by issuing a clarificatory notification to make it clear what rights rest with the Centre and what with the elected government,” he said.

The minister said Delhi is a Union Territory, which is today’s constitutional truth and Union Territories are under the Centre, but Delhi and Puducherry that have elected governments have separate arrangements, where some constitutional rights have been given to them.

The rights not given to their elected governments rest with the Centre and those rights are exercised by the Lt Governor, he said, adding that there is no scope for any grey area.

The Centre yesterday put its weight behind Delhi LG who has been given absolute powers in appointment of bureaucrats and he need not “consult” the chief minister on subjects like transfer of senior officers, police and public order.

Arvind Kejrial Government had attacked the Centre over the notification, accusing it of trying to rule Delhi through the backdoor and protect the corrupt.

What’s the Legal Status of the NCT of Delhi Under the Constitution of India?

A copy of the legal opinion given by Gopal Subramanium, Senior Advocate at the Supreme Court of India, about the legal status of the NCT of Delhi under the Constitution of India and the Government of NCT of Delhi Act, 1991

Here’s a copy of the legal opinion given by Gopal Subramanium, Senior Advocate at the Supreme Court of India, about the legal status of the NCT of Delhi under the Constitution of India and the Government of NCT of Delhi Act, 1991.

Gopal Subramanium: Legal Opinion