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COVER STORY

11-09-2020

Prashant Bhushan September 11

Prashant Bhushan and contempt law

Briefing

Criminal contempt? Not now, My Lords

M.R. Shamshad cover-story

The Supreme Court has found lawyer Prashant Bhushan guilty of criminal contempt of court for two tweets. It has recorded that “the tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy”, it “tends to shake the public confidence in the institution of judiciary” and undermines the dignity and authority of the institution of the Supreme Court of India.

Origin of Contempt Jurisdiction

At present contempt jurisdiction of higher courts is understood to be a matter of discharging administration of justice and jurisdiction of a court to punish the person who seeks to scandalise or lower the dignity of the court. The ancient origins of contempt jurisdictions, including its roots in the Pre-Historic Divine Era Theory, is an academic exercise for law majors. For the purpose of the present discussion, suffice it to say that the modern concept, as practised today, emerges out of monarchies. Further, not following a court order is civil contempt of court, which again is beyond the scope of the present discussion.

A monarch would administer justice and, generally, the power and authority of the monarch could not be questioned. Thus, if the decision of a king could not be questioned, then his representative, who discharged judicial function, was also infallible and could not be questioned. Those who questioned were dealt with swiftly and severely.

Accordingly, the concept of criminal contempt started to evolve. Further on in history, the power to punish those lowering the dignity or scandalising the court was understood to be commonly inherent with court systems in democracies. Jurists relate this theory of common law contempt powers with the opinion of Justice John Eardley Wilmot in Rex vs Almon (1765), where he opined that this power of contempt “is a necessary incident to every court of justice whether of record or not, to find and imprison for contempt to the court, acted in the face of it. It is as ancient as any other part of common law”. He further stated that if resistance to the minister of a court is punishable then “libelling a judge in his judicial capacity is also punishable”. However, the actual expression appears to have been used first by Lord Chancellor Hardwicke in Roach vs Garven (1742) in a judgment commonly cited as the St. James Evening Post Case. The jurist Sir John Fox described his understanding of Rex vs Almon (1765) thus: “If the King is the fountain of justice and he delegates the power to judges… arraignment of justice of judges is arraigning the King’s justice”. Much later, contempt jurisdiction was made statutory in the United Kingdom.

In 1814, Andrew Jackson, a major general of the United States Military (who later on became the seventh President of the U.S.), arrested a judge who allowed a habeas corpus petition and released the author of an article that was critical of Jackson’s conduct. Jackson appearing in court after a show-cause motion was granted for the attachment of his property for contempt, pleaded that “summary power of contempt” violated his rights under the U.S. Constitution. He argued that “the necessity, which allowed circumvention of constitutional privileges in contempt cases, was a lesser one than the necessity which prompted his conduct”. Although Jackson was found guilty of contempt, he was let off with a fine of $1,000. This, again, was an exercise of power under the common law power considered to be inherent in the jurisdiction of the court.

In 1831, in some manner, contempt power was made statutory in the U.S. However, in Bridges vs California (1941), the U.S. Supreme Court raised the question as to whether the court should still exercise its powers to punish by contempt, out of court publications, on the basis of a practice that was “deeply rooted under English common law at the time the constitution was adopted” and adopting English common law in this field was to deny the generally accepted historical belief that the objects of the American Revolution was to get rid of English common law on liberty of speech and of press”. The court sought to dispel the concept of wide contempt jurisdiction developed through common law, if it affected the right of free speech.

Immediately, thereafter, in Pennekamp vs Florida (1946), the court discharged the contempt in relation to publications that criticised its handling of cases, making allegations of bench hunting and prioritisation of hearing of cases. The publication stated that the matter, which otherwise remained pending for long for technical reasons, all of a sudden, before a particular judge, became urgent. It further stated that “there you have the legal paradox; working two ways... Speed, when needed. Month after month of delay when that serves the better”.

In relation to fair administration of justice, the U.S. Supreme Court stated: “No definition could give an answer. Certainly this criticism of the judge’s inclinations or actions in these pending non-jury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues.... For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants” and also stated that “free discussion of the problems of society is a cardinal principle of Americanism”.

This remnant of the colonial Raj may possibly no longer have a place in a post-modern society. In fact, the U.K. has taken steps in this regard. The U.K. Law Commission Report, 2012, reached the conclusion that the offence of scandalising the court, was, in principle, an infringement of freedom of expression that should not be retained without strong principled or practical justification and the offence was no longer in keeping with current social attitudes. Accordingly, this category of contempt was abolished in the U.K. in 2013. However, in the U.S., in the Justice Manual (previously known as the USAM), “contempt of court” is still defined as “an act of disobedience or disrespect towards the judicial branch of the government, or an interference with its orderly process. It is an offense against a court of justice or a person to whom the judicial functions of the sovereignty have been delegated”.

Contempt Jurisdiction in India

In India, the law of contempt has direct relation with the common law jurisdiction of England. The “courts of record” in England exercised contempt powers to convict persons who scandalised the court or the judges. The courts of record have been indicative of a superior status rather than a court that is regulated through procedure. A court that is such a high and super eminent authority that its truth is not to be called in question. The Judicial Committee of Privy Council recognised that the Indian High Courts shall have the same inherent power to punish for contempt, especially the three Charter High Courts—Calcutta, Bombay and Madras. The other High Courts of British India, by virtue of being courts of record, started exercising this power. Over a period of time, various States such as Hyderabad, Madhya Bharat and Rajasthan brought contempt laws. In the interregnum British India passed the Contempt of Courts Act, 1926, which was replaced by the Contempt of Courts Act, 1952. There were various efforts to improve this 1952 law. Finally, the H.N. Sanyal Committee was set up to examine the law relating to contempt of courts in the light of the position obtaining in India and various other countries. The committee gave its report in 1963. It recorded the principle underlying the law of contempt as expounded in the Almon case: “the power of committing contempt was the emanation of royal authority, for any contempt of court would be contempt of the sovereign.” Pursuant to this report, the Contempt of Courts Act, 1971, was passed.

Before that, when the Constitution of India was framed, Articles 129 and 215 of the Constitution empowered the Supreme Court and the High Courts respectively “to punish for contempt of itself”. The power to make law relating to contempt was set out in Entry 14, List III of the Constitution. While framing Article 19, to protect freedom of speech, in Article 19(2), certain exceptions were carved out in relation to law-making powers, which may affect the rights guaranteed under Article 19(1). One of the exceptions was the power to make law imposing reasonable restrictions on freedom of speech and expression “in relation to contempt of courts”. The issue was discussed in the Constituent Assembly in some detail. Many favoured it, hence it was added in Article 19(2). However, a few members stood strongly against this addition.

One R.K. Sidhwa on October 17, 1949, opposed it by saying: “After all, Judges have not got two horns; they are also human beings. They are liable to commit mistakes. Why should we show so much leniency to them? We must safeguard the interest of the public". He further stated that “... Even there, I say the High Court judges are not infallible; they have also committed so many mistakes. They do not want any comment to be made against a High Court judge when comment was necessary in the interest of the public life.” Another member, B. Dass, also opposed.

Today, our legislatures are vested with the powers to make laws on contempt. We have a statute called the Contempt of Courts Act, 1971, which defines “civil contempt” and “criminal contempt in addition to the procedure to be followed. Civil contempt is wilful disobedience of the court orders whereas criminal contempt is to “scandalise or lower the authority of court”, “prejudicing or interfering with the administration of judicial proceedings and or administration of justice”. If somebody “tends” to do any of such things, without actually doing it, shall also be liable. The definition is remarkably wide.

Seemingly, we are at a crossroads to see whether the same contempt powers emanating from the absolute powers of monarchs can be vested with wide discretionary powers to judges appointed in the modern-day democratic system where the Constitution is supreme. The judiciary is a strong pillar of our constitutional scheme. It has settled the principle of “basic structure” of the Constitution, which cannot be taken away even by Parliament, the direct representatives of the people of India. It has been strong. It has all safeguards to remain strong, mainly to protect the rights of citizens against mighty executives and the administration. Using the strength of the judiciary against a citizen who criticises it may project it as a court exercising powers on the basis of the principle laid down in the Almon case.

Lastly, can the subjective opinion recorded in the tweets of a lawyer, placed on social media, in relation to the role of the Chief Justice of India have adestabilisingeffect on “the very foundation of judiciary in the Indian democracy”? Respectfully, I would say “No”.

M.R. Shamshad, formerly Standing Counsel for the Government of Uttar Pradesh, is an advocate in the Supreme Court of India.

A case for a new approach to contempt of court

A.G. NOORANI cover-story

In February 1999, the Supreme Court lifted a four-year stay on further construction on the Sardar Sarovar Dam across the Narmada. In an article published in Frontline (“The Greater Common Good”, Cover Story, May 22, 1999) and Outlook, the writer Arundhati Roy criticised the Spreme Court’s decision. The article was later published as a book. The Gujarat government filed a petition in the Supreme Court contending that there should be a ban on the “publication of various matters in different newspapers, journals, and other media touching upon the matter under consideration of the court”. Chief Justice A.S. Anand and Justices S.P. Barucha and B.N. Kirpal scheduled hearings to determine whether contempt-of-court proceedings should be initiated against Arundhati Roy. (On March 6, 2002, a Supreme Court Bench comprising Justices G.B. Pattanaik and R.P. Sethi held Arundhati Roy guilty of criminal contempt of the Court and sentenced her to simple imprisonment for one day and imposed a fine of Rs.2,000.)

In an article called “Courts and contempt powers” in Frontline (April 15, 2000), A.G. Noorani called for a new approach to contempt cases in India in the context of the case against Arundhati Roy. The article is reproduced below.

IN every democratic country governed by the rule of law, the law of contempt is being liberalised. India presents the depressing spectacle of a trend in the opposite direction, launched by its Supreme Court, no less.

The contrast is best illustrated by reading the observations of the Chief Justice of India (CJI), Dr. A.S. Anand, on October 15, 1999, on Arundhati Roy, her essay published in Frontline and in Outlook and her book The Greater Common Good (Narmada Bachao Andolan vs. Union of India & Ors. (1999) 8 SCC 308), with observations made 30 years earlier, on February 26, 1968, by the Court of Appeal in England, comprising the Master of Rolls, Lord Denning, and Lords Justices Salmon and Edmund Davies, on a distinguished barrister, Quintin Hogg, Q.C. M.P., in respect of an article he wrote in Punch. It was entitled “The Gaming Muddle” and appeared under the general heading Political Parley (R. vs. Commissioner of Police of the Metropolis, Ex parte Blackburn (No.2) (1968) 2 Q.B. 150).

In January 1968, the Court of Appeal dismissed Raymond Blackburn’s appeal against a Queen's Bench Divisional Court's dismissal of his application for a writ of mandamus directing the Commissioner of Police to assist in prosecuting violations of the Betting Gaming and Lotteries Act, 1963. While dismissing the appeal, the Court of Appeal criticised the way in which the law had been enforced, the drafting of the various Acts, and their interpretation; in particular, decisions of the Divisional Court. That drove a furious Quintin Hogg—later the Lord Chancellor, Lord Hailsham—to write to Punch on February 14, 1968, vigorously criticising the Court of Appeal's strictures on lawyers, Parliament, the police, and its earlier decisions; but, he incorrectly attributed to the Court of Appeal decisions which were, in fact, those of the Divisional Court.

The salient passages read thus: “The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legislation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apologise for the expense and trouble they have put the police to? Not a bit of it. Lambast the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending Dies Irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts... The House of Lords overruled the Court of Appeal... it is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option.”

Hogg’s counsel admitted the factual error which was patent and inexcusable in a Q.C. (Queen’s Counsel). The Court of Appeal had given no decisions in gaming cases which were erroneous, nor one which was overruled by the House of Lords.

Compare Hogg’s censures to “some of the objectionable passages in the book The Greater Common Good by Ms. Arunadhati Roy”, which were quoted by Justice Anand in his judgment (paragraph 4; page 312). They read thus:

“I stood on a hill and laughed out loud. I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the opposite bank from where I could see, ranged across the crowns of low, bald hills, the tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. I could see their airy, fragile homes. I could see their fields and the forests behind them. I could see little children with littler goats scuttling across the landscape like motorised peanuts. I knew I was looking at a civilisation older than Hinduism, slated—sanctioned (by the highest court in the land)—to be drowned this monsoon when the waters of the Sardar Sarovar reservoir will rise to submerge it.

* * *

“Why did I laugh? Because I suddenly remembered the tender concern with which the Supreme Court Judges in Delhi (before vacating the legal stay on further construction of the Sardar Sarovar dam) had inquired whether tribal children in the resettlement colonies would have children's parks to play in. The lawyers representing the Government had hastened to assure them that indeed they would and what's more, that there were seesaws and slides and swings in every park. I looked up at the endless sky and down at the river rushing past, and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect.

* * *

“Who owns this land? Who owns its rivers? Its forests? Its fish? These are huge questions. They are being taken hugely seriously by the State. They are being answered in one voice by every institution at its command—the army, the police, the bureaucracy, the courts. And not just answered, but answered unambiguously, in bitter, brutal ways.

* * *

“According to the Land Acquisition Act of 1894 (amended in 1984) the government is not legally bound to provide a displaced person anything but a cash compensation. Imagine that. A cash compensation to be paid by an Indian government official to an illiterate tribal man (the women get nothing) in a land where even the postman demands a tip for a delivery! Most tribal people have no formal title to their land and therefore cannot claim compensation anyway. Most tribal people—or let’s say most small farmers—have as much use for money as a Supreme Court Judge has for a bag of fertiliser.”

 

Ask yourself as to which of these two passages is sharper in criticism of the court, Quintin Hogg’s or Arundhati Roy’s? Hogg’s, by any test. He wrote in anger; charged the judges with “blindness”, with rendering a statute “virtually unworkable” by “unrealistic, contradictory and ... erroneous” decisions, also with failure to apologise though an apology was called for; and, instead, criticised all others. And all this was based on an admitted factual error.

His article concerned violations of the law on gambling. Her article was about peril to the lives and livelihood of thousands. Hogg wrote in anger from the comforts of his office. Arundhati Roy wrote in pain and anguish after visits to the site at no small discomfort. Even if her disavowal of any “disrespect” to the judges was not accepted, her sarcasm (“tender concern” of the judges) is nowhere as offensive as Hogg's attribution of “blindness” to them. In the context, the “laugh” was not in scorn for the judges. It was a bitter laugh at the tragedy she found—the illiterate tribal people having no legal documents to claim compensation and who in any case, would have “as much use for money as a Supreme Court Judge has for a bag of fertiliser”.

To characterise the court’s decision to vacate the stay on further construction of the dam, whereby the entire place would be drowned by the waters of the reservoir, as one which “sanctioned” the result is no worse than similar censures of its decisions even by academic lawyers, indeed, by judges of the court itself—both serving and retired. The writings and speeches of Justice V.R. Krishna Iyer, a man of deep commitments, are replete with bitter censures.

Freedom of speech, not court’s dignity

Now, compare the way the Court of Appeal handled the Hogg case with the manner in which the Supreme Court dealt with Arundhati Roy. Lord Denning said: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest... Mr. Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uttermost. I hold this not to be a contempt of court, and would dismiss the application.” He did not hold it to be a contempt at all. The other two judges concurred. Thus a bench of three judges unanimously ruled that Hogg’s article did not constitute contempt. They did not rule it to be a contempt and forgave the contemnor out of magnanimity or after his apology, which was not called for in the first instance.

All three laid emphasis on freedom of speech, not the dignity of the court. The aspect of taste was deemed irrelevant. Salmon L.J. said: “It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty—freedom of speech, which our courts have always unfailingly upheld.

“It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits.” If “the limits” had been drawn narrowly, Hogg would have been found guilty. Salmon L.J. expressed the opinion that “he owes no apology, save, perhaps, to the readers of Punch for some of the inaccuracies and inconsistencies which his article contains”.

Edmund Davies L.J. was of the same opinion. “Whether despite his great learning and his distinction as a Queen’s Counsel, Hogg paid proper respect to the standards of accuracy, fairness and good taste when he was composing his Punch article may, unhappily, be open to doubt. But whether his article amounted to contempt involves different, and graver, considerations. For my part also, inaccurate though the article is now acknowledged to be in a material respect, I have no doubt that contempt has not been established, this application... My conclusions regarding the fairness and good taste of the article in question are immaterial, and I therefore refrain from revealing them.”

The Indian contrast

However, while the Court of Appeal referred to Hogg with conspicuous courtesy despite his false accusation of “blindness”, Justice A.S. Anand referred to Arundhati Roy sneeringly. One is not concerned here with the Narmada Bachao Andolan (NBA), which was a party in the litigation before the court. Arundhati Roy was not. On July 22, 1999, the court made an order in which it referred to statements by the NBA as well as to Arundhati Roy’s article and her book and said: “We have gone through the statements, the press releases, the article and certain portions of the book referred to above. Prima facie, it appears to us that there is a deliberate attempt to undermine the dignity of the court and to influence the course of justice. These writings, which present a rather one-sided and distorted picture, have appeared in spite of our earlier directions restraining the parties from going to the press, etc., during the pendency of the proceedings in this court.

“However, before we decide to proceed any further, we consider it proper to appoint an amicus to advise the court about the action, if any, which is required to be taken in this respect as also in respect of the writ petition itself.”

On October 15, 1999, the court delivered judgment after hearing the amicus and other counsel. After quoting the offending passages (reproduced above from para 4) Chief Justice Anand said (in para 5): “Ms. Arundhati Roy is not a party to the proceedings pending in this court. She has, however, made comments on matters connected with the case, being fully alive to the pendency of the proceedings in this court. Judicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a blatant manner in which it has been done by her” - violation of an order which bound the parties, not those who were strangers to the proceedings.

Forms of criminal contempt

Criminal contempt may take any of these four forms. Contempt in the face of the court, for example, insulting the judge; publication prejudicial to a fair criminal trial or to civil proceedings; scandalising the court; and other acts which interfere with the course of justice. The instant case involved comments allegedly prejudicial to the Narmada case before the Supreme Court and “scandalising” the court (by denigrating it). All the forms must be tested on the anvil of the citizen’s fundamental right to freedom of speech and expression embodied in Article 19(1)(a) of the Constitution. Clause (2) permits the state to impose, by law, only “reasonable restrictions” on the right in the interests inter alia of “contempt of court”. It is now well settled that “the state”, as defined in Article 12, includes the judiciary and it is as much bound to respect the fundamental rights as the executive and the legislature. Clause (2) of Article 19 mandates the court to balance the competing values of free speech and judicial authority, with a tilt in favour of free speech.

In Britain, there has been no successful application of the charge of "scandalising the court" in the last 70 years; not since the New Statesman was hauled up for writing, very fairly, that Marie Stopes had no hope of a fair trial before Justice Avory, a Roman Catholic opposed to birth control, besides being a notoriously egotistic Judge. A noted authority holds that “the offence of scandalising the court is now so unimportant in practice that it may appear fruitless to spend much space in debating its justification” (Freedom of Speech by Eric Barandt; Oxford; 1985; pages 222).

Or, are we to lapse into “cultural relativism” with the Privy Council and hold that liberalism is all right for the whites but unsafe for us? Zahid F. Ebrahim's excellent article (Frontline, October 8, 1999) tellingly cites Commonwealth and other cases on this aspect. In 1998 the Privy Council noted in Gilbert Ahnee vs. D.P.P., in an appeal from Mauritius: “In England such proceedings are rare and none have been successfully brought for more than 60 years. But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court is greater on a small island.”

In the case of De Haes & Gijsels vs. Belgium, De Haes and Gijsels had published articles accusing four Belgian judges of bias and had been prosecuted for contempt in Belgian courts. The European Court of Human Rights ruled that “although Mr. De Ha es’ and Mr. Gijsels’ comments were without doubt severely critical, they nevertheless appeared to be proportionate to the stir and indignation caused by the matters alleged in their articles. As to the journalists’ polemical and even aggressive tone, which the court should not be taken to approve, it must be remembered that Article 10 protects not only the substance of the ideas or information expressed but also the form in which they are conveyed.”

Article 10(2) of the European Convention on Human Rights permits restrictions by law on freedom of expression which “are necessary in a democracy” inter alia “for maintaining the authority and impartiality of the judiciary”. This mandates, as Article 19 (2) of our Constitution does, a balance between the two values.

Lack of balance

Chief Justice Anand’s judgment made not even an attempt to strike the balance; cited not a single case; is charged with anger and written in intemperate language unedifying in any judicial pronouncement, especially one of the apex court. No attempt was made to distinguish between the two forms of contempt and then establish where Arundhati Roy had gone wrong, as is evident in the introductory censorious para 5, quoted above. Neither factual inaccuracy nor bad taste is relevant. Nor was any statement of hers held up to establish either “charge” specifically.

This is what Chief Justice Anand wrote: “While hyper-sensitivity and peevishness have no place in judicial proceedings - vicious stultification and vulgar debunking cannot be permitted to pollute the stream of justice. Indeed, under our Constitution there are positive values like right to life, freedom of speech and expression, but freedom of speech and expression does not include freedom to distort orders of the court and present incomplete and a one-sided picture deliberately which has the tendency to scandalise the court.” It is well settled that distortion of the court’s order cannot possibly amount to “scandalising” it.

He continued: “Whatever may be the motive of Ms. Arundhati Roy, it is quite obvious that she decided to use her literary fame by misinforming the public and projecting in a totally incorrect manner, how the proceedings relating to resettlement and rehabilitation had shaped in this court and distorting various directions given by the court during the last about 5 years. The writings referred to above have the tendency to create prejudice against this court. She seems to be wholly ignorant of the task of the court. The manner in which she has given a twist to the proceedings and orders of the court is in bad taste and not expected from any citizens, to say the least.

“We wish to emphasise that under the cover of freedom of speech and expression no party can be given a licence to misrepresent the proceedings and orders of the court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalise the court and bring it into disrepute or ridicule.”

Arundhati Roy had not “decided to use her literary fame by misinforming the public” or used “the cover of freedom of speech”. She simply exercised her right to freedom of speech. Her words went far because of her fame. The judge’s remarks reek of bad logic, bad law, bad English...

How can the passages from Arundhati Roy’s book quoted above possibly justify the charges levelled by the Chief Justice lumped together so indiscriminately—“vicious stultification and vulgar debunking”, misinformation, bad taste, misrepresentation, scandalisation of the court and distortion of the facts?

Chief Justice Anand ruled: “An offence of scandalising the court per se is one such qualification, since that offence exists to protect the administration of justice and is reasonably justified and necessary in a democratic society. It is not only an offence under the Contempt of Courts Act but is sui generis.” This ignores Article 19(2) and the ethos of free speech.

As for prejudice to a civil proceeding, that proceeding was in the apex court by judges of experience, not before a jury. Is the public to forbear from discussing the merits of the Narmada, meanwhile?

Section 5 of the English Contempt of Court Act, 1981 says: “A publication made as, or as part of, a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”

In Attorney General vs. English (1982), the House of Lords held that a Daily Mail article by Malcolm Muggeridge, which argued for a “Pro-Life” candidate in a byelection and in so doing referred to an alleged practice among doctors of allowing deformed babies to die, was not in contempt of the contemporaneous trial of Dr Leonard Arthur on a charge of murdering a Down's Syndrome baby. The Law Lords, who heard the case on appeal, echoed the Phillimore report by stating that what Section 5 was intended to prevent was the “gagging of bona fide discussion of controversial matters of general public interest merely because there are in existence contemporaneous legal proceedings in which some particular instance of those controversial matters may be in issue”. They found that although Muggeridge’s article was likely to create serious prejudice in Dr Arthur’s trial, it met the requirements of the Section 5 defence and was not, therefore, a contempt. In other words, they decided that the report was part of a bona fide discussion of a matter of public interest and the prejudice was merely incidental to that discussion.

Disquieting record

The Supreme Court's record on this branch of the law over the years has been disquieting. Chief Minister of Kerala E.M.S. Namboodiripad was found guilty of contempt for calling the judiciary “an instrument of oppression” and the judges as ones “guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor” (AIR 1970 S.C. 2016). But Union Law Minister P. Shiv Shankar was let off despite his defamatory remarks against the Supreme Court specifically. “The Supreme Court composed of the elements from the elite class had their unconcealed sympathy for the haves; i.e. the zamindars” and “anti-social elements, i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court” (P.N. Duda vs. P. Shiv Shanker, AIR 1988 S.C. 1208).

The late H.M. Seervai pointed out the lengths to which Justice Sabyasachi Mukharji went to exonerate the Minister (Constitutional Law of India, Fourth Edn., 1991; Volume 1; page 75). The court also let off another influential, Mohammed Yunus. He had attacked its ruling in the National Anthem case. But he also said that the judge who held that its singing was not compulsory (Justice Chinnappa Reddy) “had no right to be called either an Indian or a Judge” (AIR 1987 S.C. 1451). Seervai remarked: “If a humble citizen had said of the Supreme Court” what Shiv Shanker and Mohammed Yunus had said, “the public familiar with the recent functioning of the Supreme Court would have had little doubt that the humble citizen would have been found guilty of contempt and punished after the Supreme Court gave an eloquent lecture on its duty to uphold the dignity of the Supreme Court and its Judges in high esteem” (ibid; page 765).

The court's recent practice of oral edicts to the press not to report the names of the judges who made observations during the proceedings is unconstitutional. The other practice, directing the parties not to ventilate their grievances in the press pending the proceedings, is sound in principle but needs to be qualified. What if the Chief Minister of Karnataka, S.M. Krishna, had spoken on the Alamatti dam, which exercised his State in the Assembly and the press had reported the speech? Neither he nor the press could have been hauled up.

Profile

Fearless fighter

Divya Trivedi cover-story

The defiance of Prashant Bhushan in the contempt of court proceedings against him by the Supreme Court will go down in history as a record of a lawyer’s conviction against the might of the highest echelons of power. His spirited defence of his right to hold a bona fide opinion, his refusal to apologise for it, and his cheerful acceptance of its legal consequences have also provided the much-needed boost to the spirit of freedom of speech in a country beleaguered by intolerance.

His detractors say that he loves nothing more than a good fight and even thrives on it. This August, he proved his critics correct by showing that he will not be cowed down by intimidation.

Hardly a stranger to controversy, Prashant Bhushan, 63, is one of the brightest lawyers of his generation and has a passion for human rights. The son of Shanti Bhushan, a former Law Minister in Morarji Desai’s Cabinet, Prashant Bhushan had a formidable example to follow. Shanti Bhushan was well respected across the legal fraternity and was best known for going head-to-head with Indira Gandhi on behalf of Raj Narain who challenged her election from Rae Bareli, which got annulled. Prashant Bhushan, a student at the time, wrote a first-hand account of the court hearings in the book The Case that Shook India.

From the very beginning, he showed great promise and a tendency to go against the grain. He left a course in mechanical engineering at Indian Institute of Technology Madras and then a philosophy course at Princeton University to do a law course from Allahabad University. Over the years, he built a reputation for himself as an effective public interest litigant, often filing public interest litigation (PIL) petitions through the Centre for Public Interest Litigation (CPIL), an organisation founded in the 1980s by his father and V.M. Tarkunde, often called the father of the civil liberties movement of India.

In the courtroom, he has an imposing presence and his booming voice makes the judges sit up and take notice. His activism and intervention have shaped public policy and led to the creation and downfall of political parties and governments. His portfolio has high-profile cases including the Narmada Bachao Andolan; the Bhopal gas tragedy; the 1984 riot cases that he filed as a member of the People’s Union for Civil Liberties(PUCL); the Bofors case; the Enron case; the Panna Mukta Oilfields case; the Niira Radia tapes case; the PIL over the appointment of P.J. Thomas as Central Vigilance Commissioner; the Mauritius Double Taxation case; the PIL over reservation for Dalit Christians and Muslims; and the PIL over alleged irregularities in the Delhi Judicial Examination Services.

He has intervened in cases relating to the environment, proper implementation of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), judicial reforms, guidelines on police encounters, genetically modified crops, and the demand to bring the Chief Justice of India’s office under the Right To Information Act. He pursued the 2G spectrum case along with Subramanian Swamy, which sowed the seeds of a moral and electoral defeat for the Congress-led United Progressive Alliance (UPA) government. He often did cases pro bono and believed that lawyers should not charge fees for PIL petitions.

One of his more recent interventions was a PIL petition in the apex court asking for the transfer of money collected for the coronavirus pandemic under the PM CARES Fund to the National Disaster Response Fund.

In 2016, a Supreme Court Bbnch comprising justices T.S. Thakur, A.K. Sikri and R. Banumathi questioned the credentials of the CPIL and wondered how filing PIL petitions could be the sole activity of a non-governmental organisation (NGO) or a professional body.

Prashant Bhushan’s career is closely linked with the history of PIL in India, a subject on which Rajeev Dhavan, his representative in the contempt case, has written extensively. Dhavan has traced how, from being hailed as a “silent revolution” to being perceived as a “people’s court”, “true PIL” carried with it a “promise of liberation” for the disadvantaged.

“But it soon transcended its earlier self-imposed limitation of considering and enlarging the cause of the disadvantaged. It was appropriated in the service of a range of public causes including the manner in which High Court judges could be transferred and the corruption of politicians and, later, judges. Political use of the new PIL was not far off as individuals (ostensibly acting in the public interest) sought to squash the international investigation of the Bofors scandal (in which, allegedly, the late Prime Minister Rajiv Gandhi was involved) or the expulsion of politicians from the legislature. PIL has not quite lost its edge. It has simply grown entropically. If it was created to discipline and ‘conscientise’ the system of governance, forces in civil and political society have appropriated it in hugely diverse ways. PIL was randomly appropriated to serve the diverse demands of the rich and the poor, the social activist and the party politician, the genuinely interested reformist and the socially fraudulent,” Rajeev wrote in the Journal of the Indian Law Institute in 1994.

PIL as a tool

Nevertheless, Prashant Bhushan skilfully used the tool of PIL to intercede on behalf of the man in the street and the powerful with the justice system. In both roles, he came across as not a bleeding heart liberal but a shrewd interpreter of the law for the benefit of his client and cause.

He often stuck his neck out and took principled stands. For instance, in 2014, he declined to name the whistleblower who disclosed the alleged interference by Central Bureau of Investigation (CBI) Director Ranjit Sinha in the 2G investigation.

Prashant Bhushan founded the Campaign for Judicial Accountability & Judicial Reforms (CJAR), which often found itself in the midst of court-room dramas. In 2017, the CJAR filed a petition asking for an investigation into allegations of corruption that reached the corridors of the apex court in a case pertaining to a medical college in Lucknow. In the course of the hearing, standing before the then Chief Justice of India (CJI) Dipak Misra, a fearless Prashant Bhushan asked for the recusal of the CJI as the allegations in the first information report (FIR) were against him. When the CJI remarked that his comment amounted to contempt, PrashantBhushan told the CJI to go ahead and issue a contempt notice, but the CJI replied that he was not worth it.

This is not Prashant Bhushan’s first brush with contempt of court. In 2001, he was accused of contempt along with writer Arundhati Roy and activist Medha Patkar. In his response, he said: “I would like to say at the outset that I am amazed by the fact that such a ridiculously false and malicious contempt petition should be filed by persons who call themselves lawyers. I am however more pained by the fact that such a petition should have been entertained by this court which should have seen the falsity of the allegations made against me from the nature of the allegations and the recklessness with which they have been made.”

His judicial activism has led him to make several remarks on the judiciary in the past. Take, for instance, his articles on judicial accountability that appeared in leading newspapers and journals. In a 2009 article that appeared in Economic and Political Weekly, he wrote: “It is clear from the recent record of the higher judiciary that the imperative of upholding civil liberties, socio-economic rights, and environmental protection has been subordinated to agendas such as the ‘war on terror’, ‘development’ and satisfying corporate interests. Far from remaining faithful to the motives that resulted in the institution of public interest litigation, the Supreme Court has tended to act against the interests of the socio-economically backward.”

In 2011, Shanti Bhushan and Prashant Bhushan put their weight behind the India Against Corruption (IAC) movement led by Anna Hazare that was fighting for a strong Lokpal Bill. Later, the platform led to the creation of the Aam Aadmi Party (AAP) led by Arvind Kejriwal. The Bhushans had to weather many storms as part of the campaign. It was alleged that Shanti Bhushan and his son Jayant Bhushan got two farm plots from the then Uttar Pradesh Chief Minister Mayawati from her discretionary quota. The Bhushans denied the allegations and in their defence said that they were fighting cases against Mayawati and the question of obtaining favours from her did not arise.

In 2015, Prashant Bhushan and Yogendra Yadav were unceremoniously removed from the AAP because they wereblamed for plotting against the AAP in the Delhi Assembly elections. The two formed Swaraj Abhiyan, a socio-political organisation. Prashant Bhushan admitted later that Anna Hazare and the IAC movement were used by the right wing. In a tweet in 2018, he said: “Modi needed Anna only to discredit the Congress and climb to power using his movement. He has no use for Anna now that he is in power. He has jettisoned the Lokpal, not notified the whistle blower law, appointed corrupt people to the CVC and the CBI, and escorted various scamsters out of India.”

In 2011, Prashant Bhushan was attacked by Bhagat Singh Kranti Sena and Shri Ram Sene activists for his statements on Kashmir that supported a referendum and the withdrawal of the armed forces from the valley. Despite threats by the political parties, he stood by his comments just as he is standing firm before the Supreme Court today.

Interview with Justice V. Gopala Gowda.

Justice V. Gopala Gowda: Constructive dissent is the bedrock of a healthy democracy

T.K. Rajalakshmi cover-story

The surge of support across the legal spectrum for Prashant Bhushan after he was convicted on charges of contempt by the Supreme Court has been unprecedented.

While several legal luminaries and eminent individuals were shocked that the apex Court could convict an individual who had built his legal career almost entirely by raising issues of public interest, they have been concerned in equal measure about the larger implications of the criminal law of contempt itself.

At least 12 eminent judges along with several members of civil society issued a statement in which they said that the criticism by the senior member of the Bar should be used as an opportunity to introspect and strengthen the institution.

Justice V. Gopala Gowda, a former Supreme Court judge who has earned the sobriquet of being a ‘people’s judge’ and a ‘judge with a heart’, was among the 12 judges critical of the Supreme Court’s conviction of Prashant Bhushan.

Justice Gowda was Chief Justice of the Orissa High Court and a former judge of the High Court of Karnataka.

In this interview to Frontline, Justice Gowda says that the Contempt of Courts Act, 1971, needed to be amended to prevent potential judicial excesses. Excerpts:

The Law Commission of India said in its report on the Contempt of Courts Act, 1971, that amending the definition of contempt would reduce the overall impact of the law and lessen the respect that people have for courts and their functioning. Do you agree with this viewpoint or is it redundant in some ways?

The Contempt of Courts Act, 1971, is not just a colonial relic. The Constitution of India under Article 215 and Article 129 inherently empowers the High Courts and the Supreme Court of India to punish for their contempt. The Act, in fact, gives flesh and spine to the expansive constitutional powers of the courts to punish contumacious conduct by stipulating conditions and qualifications to classify any act as contumacious or otherwise.

However, I do believe that the 1971 Act needs certain amendments to prevent potential judicial excesses. Perhaps, amendments akin to those to the Indian Penal Code, 1860, [IPC] under the Criminal Law (Amendment) Act, 2013, would be ideal to create the perfect balance in the specificity-generality continuum.

The Criminal Law (Amendment) Act, 2013, expanded the scope of Section 354 of the IPC that penalises assault or criminal force on a woman with intent to outrage her modesty. ‘Outrage of modesty’ is a nebulous standard that has been subject to judicial subjectivity and inconsistent interpretational discretion. The 2013 Amendment added Sections 354A, 354B, 354C and 354D that included specific definitions of sexual harassment, stalking, voyeurism, etc., that made the law a lot more specific and precise while simultaneously reducing the scope and possibility of miscarriage of justice from judicial subjectivity and/or abuse of discretion.

The wide scope of the words ‘scandalising the court’ under Section 2(c)(i) of the 1971 Act can also be crystallised and explicated likewise. In fact, appropriate amendments to the 1971 Act will increase the overall effectiveness of the law and reinstate the faith of the people in Courts and their functioning, quite contrary to what has been observed.

There has also been a debate on whether the act of contempt should be confined only to cover civil acts of contempt, that is, instances of wilful disobedience of the court. Is this debate germane to the present context? A much larger number of civil contempt cases, as compared with criminal contempt cases, are pending in High Courts and the Supreme Court. What does this phenomenon indicate?

The numbers say it all. A recent study shows that while around 96,993 cases of civil contempt are pending before the Supreme Court and the various High Courts across the country, only around 583 cases of criminal contempt were pending consideration.

The phenomenon indicates a general reluctance and abundant restraint exercised by Courts of Record in respect of initiating action against criminal contempt while primarily deploying the law to advance administration of justice and penalising civil contempt by wilful disobedience of solemn orders of courts of law.

Nevertheless, 583 is a significant number of cases, especially when seen in a relative context. The United Kingdom, in comparison, did not have a single prosecution of criminal contempt for ‘scandalising the court’ since the year 1931. In fact, this was one of the reasons why England did away with the law in 2013.

As seen in this context, it is deducible that Indian courts have used/have had the occasion to use their contempt powers far more frequently and such powers must be exercised with restraint and responsibility with a view to striking a harmonious balance with the fundamental right to freedom of expression guaranteed under Article 19 of the Constitution.

Does having it on the statute books actually inspire public respect or confidence in the judiciary or does the Damocles’ sword of contempt impede free speech and expression as guaranteed under the Constitution?

Constructive dissent is the bedrock of a healthy democracy. It must be celebrated and protected. Far from inspiring public confidence in the judiciary, an enforced silence by such draconian laws with colonial origins shakes the very foundation of our democracy and defeats the celebrated values of liberty and equality at the core of our constitutional ethos. It could possibly evoke ill-will, resentment and suspicion among the people and alienate the judiciary.

It is apposite to reminisce the words of Lord Denning in this context; “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

Therefore, the use of contempt powers to bludgeon criticism and have a chilling effect on the citizenry does not bode well for a constitutional democracy like India.

Is there a model of the contempt law anywhere in the world where the dignity of the court is also preserved and at the same time it is not weaponised against the right to free speech and expression?

Diverse legal systems around the world have a contempt law in place to penalise both civil and criminal contempt of court. As a common law country, we inherited the current contempt law from the legal system of the U.K.. Its history purportedly dates back to the time when judges were deemed delegates of the Queen and an affront to a judge was deemed an affront of the Queen and, therefore, contemptuous.

Interestingly, the U.K. bid good riddance to criminal contempt by ‘scandalising the court’ in 2013 as it had fallen to disuse. The U.K. Commission observed in that context that there were other penal laws that covered publications and communications that might amount to ‘scandalising the court’ in addition to a civil action for defamation.

The IPC, the Information Technology Act and other laws have stringent provisions to cover such malicious publications/communications. India can augment its current model for better clarity or follow suit and bid good riddance to criminal contempt by ‘scandalising the court’ altogether.

Recently, a member of the Bar made very scathing remarks against a very reputable member of the judiciary for his observations on Supreme Court in the migrant workers’ issue. The apex court took scant notice of this. It was suggested that the member of the Bar was in contempt but the contempt law was not applied to him. Is the danger of a selective and arbitrary application of the contempt law inherent in the law itself?

One of the founding fathers of our Constitution, Dr B.R. Ambedkar, once remarked that a Constitution is only as good as those who make it work. In his seminal speech that is now renowned as ‘the Grammar of Anarchy’, he said: “Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution.”

The same principle applies to the contempt law in discussion as well. A knife in dangerous hands can kill. A knife in dexterous hands can save a life. The danger of selective and arbitrary application is inherent in the various stakeholders—judges, lawyers, media personnel and citizens—who make it work and not in the law itself.

However, there is no gainsaying the fact that the law needs certain appropriate amendments as discussed above.

Some clauses in Section 13 of the Contempt of Courts Act allow truth as a defence if it were in public interest and bona fide. Do you think courts give enough opportunity to those charged with contempt to establish the veracity or truthfulness of the act? Was Prashant Bhushan given this opportunity?

The law on criminal contempt as it prevails in the statute book today is ostensibly self-serving by its inherent nature. The procedure prescribed is far from the rigour required to prove any other criminal charge: ‘beyond reasonable doubt’.

The procedural safeguards that uphold the dictum of ‘innocent until proven guilty’ as in other criminal trials are woefully absent in the case of criminal contempt where the so-called opportunity of being heard that is accorded to an alleged contemnor is, more often than not, a mere smokescreen.

In fact, there is no semblance of a trial in determining the guilt of the alleged contemnor.

Various reports and the statement of Mr Bhushan reveal that the latter was not even supplied with a copy of the complaint on the basis of which the suo motu criminal contempt proceedings were initiated against him.

The apex Court judgment does not specifically address the pointed averments made by Mr Bhushan in his reply affidavit or the submissions made by the learned senior counsel appearing on behalf of Mr Bhushan. Prima facie, it appears that the modus operandi of the proceedings strike at the root of the principles of natural justice.

Can two tweets by Prashant Bhushan shake the foundations of law and bring the administration of justice into disrepute? What is it exactly that brings the administration of justice into disrepute? Is freedom of speech and expression not an integral component of the processes involving and leading to the administration of justice?

Two tweets cannot and have not shaken the foundations of the law by bringing the administration of justice into disrepute. The reaction to the two tweets in the form of a suo motu criminal contempt proceeding initiated and adjudicated in a record time span with apparent procedural lapses has not only shaken the foundations of the law bringing the administration of justice to disrepute but has also accorded the two tweets, (which would have, otherwise been liked, disliked, shared and forgotten) a cult status.

In a country of around 130 crore (latest estimates), Twitter users approximately constitute an insignificant minority of around 3.4 crore and Mr Bhushan has around 16 lakh followers (it is impossible to tell as to how many of these are bots/duplicate accounts, etc.).

As a consequence of the debate that has ensued after the suo motu criminal contempt proceeding initiated against Mr Bhushan, numerous national and regional newspapers, print and digital media platforms, television channels, social media exchanges are adrift in a sea of analyses, opinions and clinical dissection of the tweets and the entire saga that ensued.

This has hardly done any good to the public image and perception of the highest echelons of our judiciary and the administration of justice. The exalted norms of judicial ethics and the significance of a dignified silence are well encapsulated in the words of Justice Krishna Iyer in respect of the contempt jurisdiction on how judges must not dignify contumacious conduct even in the face of distortions and contortions by a reaction. A judge must instead “deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude”. Freedom of speech and expression guaranteed under the Constitution is sacrosanct.

The jurisprudence on free speech in the history of the Supreme Court is rich and steadfast. Contempt jurisprudence must necessarily be informed by the same and not head in the opposite direction.

The apex Court is the sentinel of our constitutional democracy and the final arbiter of the Constitution. With such great power comes great responsibility.

Pandit Jasraj

Music of the planet

Ziya Us Salam obituary

Everybody has a Pandit Jasraj moment to cherish. While thousands have his renditions of Rag Shuddh Bhairavi or Rag Nat Narayan preserved in their memory banks, and many others identify themselves with his semi-classical haveli sangeet, it is the experience of Ankita Joshi, later regarded by Jasraj himself as a bright star of the next generation of Mewati gharana vocalists, that deserves special mention.

This is the story. When Pandit Jasraj had arrived to perform at the Sawai Gandharva music festival in Pune on the invitation of Pandit Bhimsen Joshi, a nine-year-old girl ran into the green room, dodging security guards along the way. Soon she stood in front of Pandit Jasraj and mustered the courage to request him to be her guru. Pandit Jasraj, known for keeping the doors of his house open for taalim [education] and free lessons to pupils, took the girl under his wing.

While Ankita Joshi may have been luckier to establish an instant personal connection with the guru, Pandit Jasraj did make sure that anybody desirous of learning the music of the Mewati gharana had a school and a guru to learn from. Today, there are several schools and music academies under Pandit Jasraj’s name, not just in Rajasthan and Haryana, the cradle of Mewati gharana, but even in Kerala. In an interview with The Hindu, Pandit Jasraj said, “You may think there should be a domination of Carnatic music in Kerala, but it is the gayaki [singing style] of this gharana that had made Hindustani music popular even in the southern part of the country.”

His daughter, Durga Jasraj, who shot to fame by anchoring a long-running music show “Antakshari” on television, revealed that her Bapu [father] was like a Bapu for hundreds of students across the world. “There are hundreds of students the world over who are learning at various music schools named after Pandit Jasraj. There is also an auditorium named after him in New York,” she said. Then there was the matter of a minor planet between Mars and Jupiter being named after him in 2019.

It is these schools, and noted artists such as Sanjeev Abhyankar, Swar Sharma, Kala Ramnath, Shashank Subramanyam and Ankita Joshi, who stand testimony to the abiding genius of Jasraj. Incidentally, Pandit Jasraj once revealed that he never went looking for disciples. In fact, when a young man called Chandrashekhar Swami first approached him with a request to be his guru in 1960, he took a few years before acceding to his request. The step he took with Swami benefited hundreds of students for over six decades until August 17, 2020, when he breathed his last following cardiac arrest at his home in New Jersey.

Pandit Jasraj’s music, though, will live on, through his disciples, through moments of sustained magic that he created while singing “Mero Allah Meherban”, where he merged Om with Allah ever so subtly, and bhajans such as “Om Namo Bhagwate Vasudevaya” and “Govind Damodar Madhaveti”. The popularity of his music went beyond the rarefied environs of classical music to the realm of the common man.

Bending genres

With clear gayaki, stress on bhakti, and subtle innovations in khayal, Pandit Jasraj redefined the way the world looked at Hindustani classical music. Back in the mid 1940s, when he first started his innovations by moving away from the Dhrupad genre and adding elements of thumri to traditional khayals, purists frowned. But Pandit Jasraj continued regardless. Slowly, he became a symbol of spirituality in Hindustani classical music, and his haveli sangeet transcended the boundaries of faith.

He then came up with Jasrangi Jugalbandi, a form of duet where both male and female voices sang different ragas together in two different scales. It so happened that his disciples Shweta Jhaveri and Sanjeev Abhyankar were once singing together and Jasraj heard them. That is when he came up with the concept, based on the principle of murchana. It soon became his hallmark.

The Jasraj magic—his bandish [composition] which could be clearly identified, his elaborate movement from one swara to next to get the beauty through the meend [sliding of notes], his khayal soaked in rasa bhava [emotive essence], the layakari and taans [rhythms] that embellished his compositions—was not a result of genius alone. Behind the magic was sustained hard work.

Born in 1930 in Hisar, his father Pandit Motiram was an exponent of the Mewati gharana. Young Jasraj grew up to the sound of music, and often sat on his father’s chest singing Ustad Abdul Karim’s “Piya Bin Nahin”. One his earliest memories was of travelling on a camel’s back to the railway station.

Begum Akhtar’s influence

Jasraj lost his father early, in 1934, on the day he was appointed as Mir Osman Ali Khan’s court musician. Jasraj’s education continued with his two elder brothers, Pandit Maniram and Pandit Pratap Narayan, who were being groomed as classical artists. From the age of 11, he received tabla lessons, and spent his youth in Hyderabad before moving to Sanand in Gujarat where he was groomed under Maharaj Jaywant Singh Waghela. Under his influence, Jasraj began to be immersed in the joy of bhakti in music.

Begum Akhtar was one of the early musical influences on young Jasraj. A gramophone record of Begum Akhtar’s played regularly at a tea shop on his way to school, and young Jasraj would stand mesmerised, listening to “Deewana banana hai toh deewana bana de”. As he frequently missed classes owing to this fascination with Begum Akhtar, his name was struck off the school rolls. It proved to be a blessing. He devoted his time honing his skills as a singer.

Slowly he carved out his own niche. The little niche was to grow bigger when he followed the advice of his father-in-law, the renowned filmmaker V. Shantaram who told him to focus on greater clarity in voice, and pay more attention to lyrics. Jasraj was married to Shantaram’s daughter Madhura, whom he first met during the making of the film Jhanak Jhanak Payal Baje. Incidentally, almost 50 years after marriage, Madhura Jasraj came up with the ultimate compliment for her husband with a film titled Sangeet Martand Pandit Jasraj in 2000. In 2004, Pandit Jasraj sang with Lata Mangeshkar for a Marathi film, Aai Tuza Ashirwad.

The film, the school and the laurels—he was a recipient of the Padma Shri, the Padma Bhushan and the Padma Vibhushan—owed a deep debt to the hard work of the early years. Pandit Jasraj practised for as many as 12-14 hours every day. He first performed in Kathmandu at the age of 22, where he sang Rag Multani and the bhajan “Gal bhujang bhasm ang”. The sum of Rs. 500 he was promised was a huge climb for Jasraj who, until the late 1940s, was paid Rs. 25 for each programme on radio in Calcutta.

Yet Jasraj had to climb the ladder the hard way. Once, as a young man, he was slated to sing between two great artists. After one of them had performed, the crowd began to disperse for refreshments, when Pandit Omkarnath Thakur asked him to perform, and requested the audience to listen. Once Pandit Jasraj performed, everybody took notice with many asking about his taalim. Similar was the experience of J. Krishnamurti in Rishi Valley. Krishnamurti had told him not to take offence if he left midway. But so powerful was Jasraj’s rendition that the session went on for four hours, and Krishnamurti did not leave his seat.

On such anecdotes, on such moments of genius, on a solid footing of years of riyaz [practice] was built the abiding magic of Pandit Jasraj. His voice and his innovations will not be silenced with his passing away. As he wanted, his students have to carry the torch forward of the Mewati gharana and act as ambassadors of Hindustani classical music the world over. Of course, there is a planet called “Pandit Jasraj”, too. Enough for the galaxy to remember him.

Ilina Sen

Bread, roses and Ilina

Ilina Sen, academic and ardent campaigner for tribal and women’s rights, passed away on August 9 after a nine-year-long battle with cancer. She was 69.

She was a part of a generation that believed that the principles of democracy, secularism and socialism were worth fighting for. At a personal level, Ilina Sen battled cancer but a subsequent attack of paralysis worsened her health. On a broader political level, like several others of the post-Emergency generation, she campaigned for the rights of the marginalised, women and tribal people. She also had to face the might of the state when her husband and ideological soulmate Binayak Sen was sentenced to life by a lower court on charges of sedition in 2007. Chhattisgarh was then ruled by a Bharatiya Janata Party (BJP)-led government.

Binayak Sen, a medical doctor, was in solitary confinement until 2011 when the Supreme Court ruled that no case for sedition could be made out against him. Ilina and her young daughters bore it all with the kind of fortitude typical of her generation. She was not without support from the women’s movement and several colleagues and individuals. “Bread and Roses”, a rallying call of the suffragette movement and of 20th century women textile workers in Massachusetts, was one of her favourite poems.

In an interview to Frontline in 2011 in Delhi after she addressed the media as part of a campaign for Binayak Sen’s release, she spoke on the assault on the democratic rights of people. When working as a researcher, this correspondent and two colleagues had met Ilina Sen in Raipur in the early 1990s. The Sens’ work among tribal people was well-known and their organisation Rupantar straddled the worlds of academia and activism effortlessly. It was not uncommon for young researchers to meet the Sens to get a sense of the issues in Chhattisgarh. Ilina Sen was as warm, affectionate and welcoming in 2011 as she had been to the team of three young researchers who met her in her modest house years ago.

In the early 1970s, the Sens were based in Tamil Nadu. Binayak Sen pursued an M.D in paediatrics in Christian Medical College, Vellore, while Ilina Sen taught in a school. In 1976, they went to Jawaharlal Nehru University for higher studies. While Binayak Sen joined the Centre for Social Medicine and Community Health, Ilina Sen enrolled for an M.Phil and later PhD in population studies. Her PhD thesis, titled “Declining Sex Ratio in India”, was based on her field experiences among Adivasis in Hoshangabad. The Sens got involved with tribal issues and the specific problems faced by them. They set up medical facilities in Madhya Pradesh and Chhattisgarh.

A writer with the people

Some of Ilina Sen’s books, Inside Chhattisgarh: A Political Memoir (2014), A Space Within the Struggle: Women’s Participation in People’s Movements (1990) and Sukhvasin: The Migrant Woman of Chhattisgarh (1995), articulated her concerns and hopes for a better India. A Space Within the Struggle, a collection of essays which chronicled the struggles and lesser known aspects of women workers, is seen as one of her most important writings. In the preface to Inside Chhattisgarh, she expressed her world-view thus: “Chhattisgarh for me has always been much more than a place of work. Our engagement with the land and its people goes beyond that. It has been our home; its people have been our own; it lies at the root of our sense of belonging there. The trauma we experienced following the case can in no way wipe out those rich memories.” The book documented Binayak Sen’s arrest, trial and conviction. She wrote: “I have tried to recreate the bittersweet cocktail that Chhattisgarh has now become for our family members. I wish that the bitter remains a subject for intellectual analysis, and the sweet passes, through these recollections, into the collective consciousness of my readers.” In the book, she recounted how the police searched her daughter’s algebra books for “codes”. In 2007, the year Binayak Sen was arrested, she had been teaching in the Department of Women’s Studies at the Mahatma Gandhi Antarrashtriya Hindi Vishwavidyalaya, Wardha, Maharashtra. Between her classes and helping lawyers with their briefs, Ilina Sen would frequently take the train from Wardha to Raipur and back.

Between 2011 and 2014, Ilina Sen was president of the Indian Association of Women’s Studies (IAWS). Indu Agnihotri, former director of the Centre for Women’s Development Studies (CWDS), who was general secretary when Ilina Sen was president, said: “The conference was in Guwahati. Ilina always had a special feeling for the North-East as she had studied in Shillong. There was this understanding she had of the politics too of the place and shared common concerns. She used to sing a lot. At the inaugural she sang a few lines from ‘Bread and Roses’.” Meera Velayudhan, the current president of the IAWS, also recalled Ilina Sen’s passion for singing. As both Meera Velayudhan and Indu Agnihotri recalled, Ilina Sen was particularly fond of James Oppenheim’s poem. The American women’s suffrage activist Helen Todd was known to be the inspiration behind the poem. In one of her many speeches, Helen Todd had famously said: “Bread for all, but roses too”. The iconic poem was a rallying cry in the textile workers march in 1912, Lawrence, Massachusetts, and has been sung at picket lines, and rendered by many well-known singers, including John Denver and Judy Collins.

Less known women’s movement

According to Indu Agnihotri, the women’s movement, of which Ilina was also a part, was one of the most sustained and enduring movements in the post-Emergency era: “Everyone talks about the JP movement or the Socialist movement. It is not highlighted sufficiently but an entire generation of students acquired that consciousness from the women’s movement which became a part of their daily lives and practice, including in Ilina’s case. We may have had different streams of political consciousness but the desire to challenge forces that threatened our democracy united us all.” She added: “The challenge was to build democracy, not to wreck it as we see it happening today.”

Indu Agnihotri recalled that the 1970s were a time when an entire generation took to activism and when social concerns were part and parcel of academic spaces. It was the period when several civil liberties organisations came up. It was also a period of crisis in capitalism. There was considerable industrial strife in the years 1974-75 that led to the largest number of man days lost owing to strikes. There was unrest in industrial tribal belts, too, said Indu Agnihotri. In one of her books, Ilina Sen described how she and Binayak Sen arrived in Chhattisgarh as part of a team to investigate the illegal detention of the firebrand trade union leader Shankar Guha Niyogi and his associate. Niyogi was murdered allegedly by those whom he took cudgels against. “There was a concern that development should reach these areas [in Chhattisgarh] through democratic processes. Their organisation ‘Rupantar’ was very successful,” said Indu Agnihotri.

There was a growing academic interest in workers’ movements, especially the role, lives and struggles of women workers. Meera Velayudhan recalled how in one of the IAWS sessions in the early 1980s on people’s movements, Ilina Sen presented a paper on the women miners and their struggles as part of the Chhatisgarh Mukti Morcha (CMM), while Meera Velayudhan presented her paper on the women factory committees of the Coir Workers Labour Movement in Alleppey, Kerala. Ilina Sen was a member of the women’s wing of the CMM. Women workers were emerging as an important constituency. This was around the same time, Meera Velayudhan said, that the Centre of Indian Trade Unions (CITU) also formed the All India Co-ordination Committee for Working Women.

“She was both an academic and an activist. She was very good at profiling the lives and struggles of women workers. She became the president of the IAWS a little before Binayak was arrested and she was fighting her cancer even then,” she said. At one of the IAWS conferences in Wardha, which Ilina Sen helped organise, Meera Velayudhan recalls how the participants were harassed only because of the case against Binayak Sen. Ilina Sen herself was under surveillance. “She managed all of that admirably. She had this capacity,” recalled Meera Velayudhan.

The IAWS and women’s groups like the All India Democratic Women’s Association (AIDWA) paid rich tributes to the memory of Ilina Sen. The IAWS noted that Ilina Sen was part of the IAWS and the women’s studies movement since its inception in the late 1970s and early 1980s. The IAWS condolence note stated: “She brought perspectives and collective wisdom from the most marginalised communities and her book, A Space Within the Struggle, reflected her lifelong emphasis on the rights of women in all spheres of life, in people’s organisations and trade unions”. She had a keen understanding of cultural issues, and played a pivotal role in initiating the Cultural Front of the Chhattisgarh Mineworkers’ Association, stated the IAWS release. “Ilina’s presidential speech at Guwahati remains in our memories as she ended her speech with the song ‘Bread and Roses’, which energised all the participants,” recalled Meera Velayudhan.

The AIDWA described her as a “face of the public health movement”, as someone who strove hard for the health care rights of the working class. Not only did she spearhead the campaign for the release of Binayak Sen, she also campaigned for the release of several young men wrongfully arrested in Chhattisgarh, stated an AIDWA release. She remained a vocal critic of human rights violations in Chhattisgarh and, despite her worsening health, she stayed active in several people’s movements, observed the AIDWA.

Tributes poured in from outside India too. The Pakistan India People’s Forum for Peace and Democracy (PIPFPD) described her as a “doyen of feminist politics, blending it with indigenous community perspectives and that of the trade union movement of Chhattisgarh. Her convictions and activism made her known to every sector in the civil society movement in South Asia.” As a member of the Forum, she reminded them of the need to go “outside the middle-class activist space” and establish lively relationships with ground movements. She vehemently argued for every space of the Forum being gender sensitive, stated the PIPFPD. Ilina Sen will be remembered for her deep commitment to the preservation of democratic rights, contribution to women’s studies, wider involvement with people’s movements and her vision of an equal world. Not just bread but roses for all, too.

COVID-19

Pointers from sero-surveys conducted in various cities

R. Ramachandran the-nation

Given the failure of the Indian Council of Medical Research (ICMR) to carry out a comprehensive nationwide survey of the seroprevalence of COVID-19 among the general population, which would have given States and regions timely guidance about the appropriate measures to take to control the spread of infection, it is a positive and gratifying sign that major academic institutions are joining hands with local governments and civic administrative bodies of big cities to carry out such surveys. Admittedly, these studies are belated but they do give some insights into the nature of the urban spread of COVID-19 in the country.

Following the example set by Delhi, Mumbai and Ahmedabad (“Far from herd immunity”, Frontline, August 28), Pune is the next major urban centre to conduct its own survey among its population. According to news reports, Berhampur in Odisha, too, seems to have carried out a sero-survey among its population. Pune has made the detailed results of its survey public, just as Mumbai had, but Delhi, Ahmedabad and Berhampur have not. Even without making public the complete data of its first round of sero-survey, the Delhi government launched its second round in early August but this time in association with Maulana Azad Medical College (MAMC), New Delhi. The previous round was conducted in association with the National Centre for Disease Control.

Pune sero-survey

The Pune Municipal Corporation conducted the survey between July 20 and August 5 in association with academic institutions that included the Savitribai Phule Pune University; the Indian Institute of Science Education and Research (IISER), Pune; the Translational Health Science and Technology Institute (THSTI), Faridabad, Haryana; and Christian Medical College, Vellore, Tamil Nadu. An IgG antibody-based sero-survey estimates the prevalence of infection in the past (about two weeks before) in the surveyed population. The Pune study estimated the seroprevalence of antibodies to the COVID-19 virus only in the high-incidence (>0.20 per cent of the population) areas of the city. (The incidence rates used for this classification were based on caseload or confirmed case data of June 1.) The survey found the seropositivity rate (SPR) in Pune to be 51.5 per cent. This would be the highest rate found in any of the sero-surveys conducted in the country so far. But since the survey was restricted to high-incidence areas, one cannot immediately extrapolate this figure to the entire city.

The study, however, disaggregated the SPRs according to age, gender and types of dwellings. These disaggregated numbers also cannot be extrapolated to the entire city. For the same reason, no meaningful comparison can be made with other urban sero-surveys, Mumbai’s in particular. While Mumbai too came came out with disaggregated rates, the data was given in a form that would not have allowed a direct comparison in any case.

Asked about the non-inclusion of areas of medium-incidence (0.10-0.19 per cent) and low-incidence (<0.10 per cent), Prof. Aurnab Ghosh of the IISER, one of the principal investigators, said in an email interaction with Frontline: “In the absence of any serosurvey in Pune at the time of planning and execution, it was necessary to establish a baseline. The goal never was to estimate for [the] whole [of] Pune, but limit it to specific areas. This was a time when it was not clear what the seroprevalance might be—results of other serosurveys had not come out. So, it made sense to focus on high prevalence areas first.”

Although the number of infections per day was rising when the survey began, from mid July it began showing signs of declining. However, Pune’s total caseload (confirmed positive cases) has overshot Mumbai’s in terms of both the number of cumulative confirmed positive cases (1,37,601 compared with 1,31,542 as of August 20) and the number of active cases (40,665 compared with 17,914. The doubling time is also now showing an increasing trend. But the test-positivity rate in Pune has remained high, which implies that the testing strategy is not yet extensive enough to capture most of the infections.

Given this, and the fact of the survey found a high average SPR (which is indicative of prevalence) across all disaggregated groups, it is likely that the infection is much more widespread in Pune than in Mumbai and that the fraction of Pune’s population in areas with medium incidence and low incidence may not be high. Surprisingly, however, for reasons that are not clear, the case fatality rate (CFR)—the ratio of the number of deaths to the number of confirmed positive cases—in Pune (2.5 per cent) is much lower than that of Mumbai (5.5 per cent). Is it a case of undercounting or under-reporting of COVID-19 deaths? One cannot say.

The survey was conducted in five administrative prabhags (sub-wards) selected from the high-incidence areas of the city: Yerwada, Lohiyanagar-Kasewadi, Rastapeth-Raviwarpeth, Kasbapeth-Somwarpeth and Navipeth-Parvati. The sampling design was evolved by a team of geospatial experts who, assuming a minimum of 5 per cent seroprevalance, worked out that the minimum sample size had to be at least 1,520 individuals. The study finally included 1,664 recruits from these prabhags.

The total population of these prabhags together is 3,66,984, which is about 10 per cent of the city’s population. The sample size then is about 0.45 per cent of the population of the five prabhags. Asked about the fraction of Pune’s population in the high-incidence areas according to June 1 data on which the survey classification was based, Aurnab Ghosh said: “We have the raw data, and [we] are curating and estimating numbers such as these now.” He also added that the study team was continuously monitoring the incidence rates and, at the time of sample collection, these prabhags continued to be high-incidence areas. The sampling methodology was as follows: The selected prabhags were gridded and the survey randomly chose 53 grid elements of roughly equal area. In each such grid element, all types of dwellings—hutments, tenements, apartments and bungalows—were covered, and ensuring that the age/gender balance was maintained, a blood sample was taken from one adult individual (>18 years of age) from every fifth home. As with the other sero-surveys, no sampling was done in active containment zones.

The category hutments included traditional slums, whereas the category tenements were proper constructions—which are called chawls in urban Maharashtra—where not all families have access to independent toilets. Even though the peths included in the survey prabhags have a high population density, they do not have what would be traditionally termed slums. But they have many chawls, Aurnab Ghosh explained. Lohiyanagar has the biggest slum in Pune, which is often called Pune’s Dharavi. While Navipeth itself is an affluent part of the city and may not have hutments or chawls, the same sub-ward covers the Parvati area as well, which has fairly large slum dwellings.

The survey used the THSTI-RBD-ELISA (enzyme-linked immunosorbent assay) kit that the THSTI developed for the detection of IgG antibodies to the receptor-binding domain (RBD) of the spike protein of the causative virus SARS-CoV-2. It has 100 per cent specificity and 84.7 per cent sensitivity. According to the survey report, this kit was extensively characterised and compared with other commercially available SARS-CoV-2 IgG test kits. When Aurnab Ghosh was asked about the low sensitivity of the kit, he said: “Currently, there are no gold standard serum panels or tests for SARS-CoV-2 antibodies against which other tests can be validated. Therefore, the reported numbers for sensitivity are contingent on the panel of sera used.”

As an example, he pointed to the case of a kit developed by a company called DiaSorin that Public Health England (an executive agency of the United Kingdom’s Department of Health and Social Care) determined had a high sensitivity. However, when THSTI colleagues compared the DiaSorin kit head-to-head with the test used in their study on their panel, the THSTI test was marginally better in sensitivity than DiaSorin, Aurnab Ghosh said. “So, currently, these [sensitivity] numbers mean little. Suffice to say [that], our test, the one used in Mumbai [CLIA] and DiaSorin have comparable specificity. The reported [sensitivity] numbers have little meaning unless compared head-to-head using the same panel of sera. The sensitivity of Zydus-Covid Kavach, commonly used in ICMR studies, is slightly lower in head-to-head comparisons with both our test and DiaSorin’s,” he added.

Table 1 shows the SPRs the survey found in the five prabhags. The number sampled in each prabhag was about the same, but there is a noticeable variation in the SPR. The higher rates in Yerwada, Lohiyanagar and Parvati are perhaps attributable to the hutment/slum areas there. (According to the survey report, these rates were not corrected for “IgG detection sensitivity, population parameters or sample structure or cluster design”.) The corrected figures were not available yet, Ghosh said, but added that since no test had 100 per cent sensitivity underestimation was very likely but not overestimation because the test had 100 per cent specificity. This means that the corrected overall average SPR is likely to be higher than 51.5 per cent.

The survey included samples from 863 men and 801 women and did not find any significant difference in the SPRs between men and women unlike other surveys (including Delhi’s second round survey), which found the rates among women to be higher. The SPRs determined among males and females in the high-prevalence areas were 52.8 and 50.1 respectively. Table 2 shows SPRs in the five high-incidence prabhags in an age-stratified form. Prevalence was lower in the older (66+) age group but was similar across all the lower (<66) age groups.

As was the case with the findings of the Mumbai survey, the Pune survey found the SPRs among residents of hutments and tenements, which include slums or slum-like habitations with high-people density and shared conveniences such as toilets, to be higher compared with those among residents of other types of residences such as apartments and bungalows (Table 3). However, it is to be noted that the difference in the seropositivity among residents of slum and non-slum residences was not as wide as in the Mumbai survey (56.5 per cent and 15.5 per cent respectively), though the caveat mentioned above, that such a comparison would not be entirely meaningful, needs to be kept in mind.

Interestingly, the study found a lower SPR (33.2 per cent) among residents of apartment dwellings compared with bungalows. A possible reason for this could be that in apartment blocks and housing societies, restrictions and precautionary measures imposed by the collective community get more strictly enforced than in large independent dwellings and bungalows.

The study also found that people with access to independent toilets had a lower SPR compared with those who had to share toilets. The sampling included 1,045 people with access to independent toilets and 629 who used common toilets; the rates were 45.3 per cent and 62.3 per cent respectively. This is, of course, understandable because of the lack of adequate hygiene and cleanliness in shared toilets. But, as the report notes, the SPR among those with independent toilets is also significantly high. This is another indicator that infection spread in Pune is perhaps much more extensive than in Mumbai.

The high SPR found is an indication that a large fraction of the infections in the surveyed areas were asymptomatic. As the report notes, even though the SPRs are fairly high across the different disaggregated groups, this is no indication that the people carrying IgG antibodies will be immune to subsequent infection. Nor is it an indication that general population-level herd immunity may be achieved sooner rather than later. The dropping daily caseload is also not an indication of that.

Asked about epidemiological observations that could be made by comparing the Pune sero-survey data with those of the other city-based surveys, in particular Mumbai, Aurnab Ghosh said: “We do not have much detail on the Delhi/Ahmedabad/Behrampur [surveys] but really only the Mumbai one to be able to able to genuinely compare. Mumbai’s publicly released data is also unadjusted for sensitivity etc., but a common theme appears to be that the infection has spread extensively in the areas studied, especially in crowded communities. Population structures and behaviour of the population and the infection may be different in these communities and, until these can be adjusted for, it will be unfair to claim anything more.”

As to the way this work would be carried forward, Aurnab Ghosh said that the aim was to characterise the nature of the immune response further. “We will test if ‘protective’ activity is found in the IgG positive sera. However, since this is one-time sampling, we cannot estimate the duration of the ‘protection’. This [characterisation] does not require sampling [the] whole of Pune; a smaller, tightly characterised set is best. These studies are ongoing and will provide more nuanced characterisation of the response to infection,” he added.

As for the possibility of more rounds of sero-survey just as Delhi and Mumbai were doing, he said: “There are at least two other surveys planned for Pune. It is important that such surveys are expanded to other areas and also carried out at different time points. We are not involved in these two follow-ups but hope data will be freely shared in a timely manner. We will make ours freely available so that the other studies can learn and improve. I think we have set the baseline for Pune.” According to news reports, B.J. Medical College will be leading a second sero-survey, which would be mainly for front-line health care workers, including nurses and the police, and D.Y. Patil Medical College will be conducting a sero-survey in the Pimpri-Chinchwad area of Pune.

Berhampur sero-survey

According to news reports, a community-based sero-survey conducted in Berhampur city in Ganjam district of Odisha, the worst hit by COVID-19, between August 3 and 7 found that nearly one in three people had been infected by SARS-CoV-2 in the past. The survey was carried out jointly by the Regional Medical Research Centre (RMRC), the M.K.C.G. Medical College and Hospital and the Berhampur Municipal Corporation and covered 25 wards and five slums of the city. It found that 31.3 per cent of the surveyed population had IgG antibodies to the virus and about 90 per cent of those found to carry antibodies were either asymptomatic or had no major symptoms. The city’s population is about 4.5 lakh.

According to the survey results that the RMRC made public on August 14 through the media, to estimate the spread of the infection in the general population, a total of 2,830 samples were collected from randomly selected individuals across different categories and high-risk groups. The seropositivity found in the survey ranged from 7 per cent to 60 per cent in the different wards surveyed. In four wards, the estimated seropositivity was more than 50 per cent. The average seropositivity in slums was 35 per cent and that in the high-risk group—people with co-morbidity conditions such as diabetes, hypertension, cardiac and kidney problems—was found to be 23 per cent. On the basis of this data, the infection fatality rate—the ratio of the number of deaths to the actual number of infections—was estimated to be 0.02 per cent as against Berhampur’s CFR of 1.6 per cent. From the above data, which are sparse in details, one can neither comment on the nature of the prevalence or spread of infection in Berhampur city nor can one make any meaningful comparison with other urban survey results. The second round of the survey is planned to begin after 21 days.

Delhi sero-survey: Second Round

The Delhi government, with technical support from the MAMC, carried out the second round of its sero-survey in the first week of August as a follow-up to the survey conducted between June 27 and July 10, which found an average SPR of 23.48 per cent (22.86 per cent after adjusting for kit sensitivity, population and sampling design factors, and so on). On the basis of this result, it was calculated that a minimum sample size of 15,000 would be needed. As in the case of the earlier round, multistage sampling was done from all the 11 districts of Delhi. A total of 15,239 individuals were selected for the survey. This time around, too, the sampling was age stratified as follows: 5-17, 18-49 and >50. The sampling was distributed among these groups in the ratio of 25:50:25 and age-ordered participants were selected by an established statistical procedure. While this time the age-stratified results have been made public, in the last round they were not.

The survey found an SPR of 28.35 per cent, which, after adjusting for the specificity (97.7 per cent) and sensitivity (92.1 per cent) of the IgG antibody assay test used, yields a true SPR of 29.1 per cent. Table 4 gives the comparative SPR figures for each of the 11 districts. All the districts have shown an increase in the SPR compared with the first round. The range of percentage increases in the SPRs is wide: the highest increase in South East district (50.09 per cent), followed by South (46.21 per cent) and then West (38.6 per cent). In terms of the gender- and age-disaggregated data, while the average SPR among males was found to be 28.3 per cent, among females it was significantly higher, 32.2 per cent. This was the case in the first round as well (21.63 per cent and 24.2 per cent respectively). The age-wise SPRs are 34.7 per cent (<18 age group), 28.5 per cent (18-49) and 31.2 per cent (> 50) respectively. Like in the other city-based sero-surveys, the youngest age bracket seems to have a high SPR, which is not all that surprising given that they are likely to get exposed to the virus more than other age groups.

The Delhi government will carry out two more follow-up rounds of the survey: in the first week of September and in the first week of October.

Puja in the time of pandemic

Meera Nanda the-nation

Once the coronavirus recedes into history, we will remember the pandemic of 2020 as ushering in a new era of digital darshans of virtual gods that stream in through Microsoft Windows more readily than through the temple doors.

The beginning of the lockdown in March across most of the world coincided with important days on the ritual calendar of nearly all faiths, and all of them turned to the Internet for worship. Catholics got to see and hear, in real time, Pope Francis deliver his Easter sermon in the deserted St. Peter’s Square; Muslims joined in Ramzan prayers streamed from mosques; Jews participated in Passover seders over Zoom; while Hindus got to participate remotely in Ram Navami celebrations, complete with bhajans and aartis. Virtual darshans and aartis became a daily affair for many, as did the daily masses and calls to prayer from countless churches and mosques. Online scripture-reading groups sprung up and, sadly, online funeral services thrived.

God and the Internet

Digital darshans and online pujas have been an integral part of the story of the Internet in India: political as well as devotional Hinduism found a home on the Internet from the moment it made its public debut. The Internet first became available to the wider public outside of select academic institutions in India on August 15, 1995. The first political Hindu website, Global Hindu Electronic Network (GHEN) was up and running by 1996, and the first (and still running) commercial puja-ordering website, Sarnam.com, has been in business since 1999. As the Internet evolved and deepened its reach, it carried hard Hindutva trolls as well as soft Hindu gods, godmen, and gurus into the deeper reaches of the public sphere.

Even before the pandemic, Hindus living in India or abroad could have pujas performed remotely for a fee, worship their chosen gods digitally on their smartphones or watch live webcasts of pujas in historic temples like Somnath, Kashi Vishwanath, Sai Baba’s shrine in Shirdi and the Hare Krishna temples in Delhi and Mayapuri in West Bengal. Devotional Hinduism was already flourishing online in the BC (Before the Coronavirus) times.

The nearly two-months-long virus-induced lockdown, however, has brought about a noticeable jump in the number of temples that live-stream and offer online pujas—a trend facilitated by temple management boards, promoted by State governments and powered by e-commerce platforms that specialise in the lucrative puja/spirituality segment. The lockdown also created ideal conditions for the emergence of pandits-on-Skype who can conduct rituals without having to visit the yajmans’ homes.

If the trend continues, reaching for your laptop or your smartphone will become as “natural” for offering pujas as it already is for hailing a cab or ordering groceries. If the trend continues, the digital “haves” will get their religion delivered at home, or book VIP darshans online, rather than suffer the unwashed masses flocking at the houses of worship. It is not that temples will become irrelevant, but they will become optional.

Digital Ram Navami

Hindu deities are known to step out of the garbha griha of their temples on special occasions and make themselves available for darshan to the worshippers thronging the streets. It was, therefore’ perfectly in keeping with tradition that when the virus kept worshippers away, deities would leave the shuttered temples and go to them—riding not on the rathas pulled by the devotees, but on the 4G networks!

Take the celebration of Lord Rama’s birthday. This year’s Ram Navami fell on April 2, smack in the middle of the lockdown. Sporadic violations of stay-at-home orders notwithstanding—including the violation by Uttar Pradesh Chief Minister Yogi Adityanath who presided over the transfer of the Ram Lalla idol in Ayodhya—temple visits, pilgrimages, and other public festivities remained cancelled.

Cancelled, that is, only in the offline world. Ram Navami 2020 simply went electronic, first on television for practically everyone, and then on the Internet for the tech-savvy.

Just a week before Ram Navami, Doordarshan began broadcasting “Ramayana”, Ramanand Sagar’s TV serial that was first beamed in 1987-1988. The Doordarshan reruns have been a big hit, with some 42.6 million viewers tuning in for each episode. Even the younger Internet-reared generation who would not know Doordarshan from DoorDash seem to be drawn to the serial, if only for the memes that could be mined from it.

But the devotional fever that this serial caused over 30 years ago has been conspicuous by its absence now. This time around, the “Ramayana” serial was mostly a time-pass event, with hardly any reported incidents of TV sets being garlanded, conch shells blown or prasad being distributed.

The religious function that the TV screen served in the 1980s has passed on to the laptop and the smartphone. The gods broadcast on television have given way to online avatars. A case in point: Ram Navami pujas live-streamed by the BAPS Swaminarayan temples in all continents of the world during the lockdown. BAPS Swaminarayan is a Gujrat-based Vaishnava sect gone global with its trademark temples which hybridise traditional north Indian shikhar-style pinnacles with Disney-style theme parks and five-star-hotel-style ambience. April 2 marked not just Ram Navami, but also the birthday of Swami Sahajanand, an 18th century saint whom the Swaminaryans worship as the supreme God.

The techno-savvy Swaminarayan temples were ready to meet the challenge of putting together a grand online celebration under the lockdown. The majestic BAPS temples in London and New Jersey live-streamed, all through the day, kathas, discourses, pujas complete with all the traditional rituals of swaying the baby gods in cradles, bathing the murtis with panchamrit, followed by aartis. Hindu communities in North America, the United Kingdom and Europe got to celebrate the twin birthdays without leaving their homes—Bhagwan Ram got his puja in the morning hours, the evening festivities were reserved for Bhagwan Swaminaryan, with a break in between for “clapping for the [coronavirus] carers”. Many more maha-pujas for “health, harmony and recovery” and “prayers for humanity” continued to be webcast from Nairobi, Abu Dhabi, London, New Jersey and Toronto. (While heavy on online services in the rest of the world, in India the organisation concentrated on offline social services.)

The pictures of these pujas posted at www.baps.org offer an insight into why the Ramayana serial was no match for the webcast pujas. One set of pictures are snapshots of the temple webcast and show the temple swamis—all men, and all dressed in identical saffron robes, singing bhajans and worshipping the images of Swaminarayan in the temples’ ornate interior chambers. The other set of pictures are selfies shot by the devotees − mostly nuclear families, with a handful of multigenerational families—carrying on the worship in their living rooms or puja rooms.

The worshippers' selfies reveal an interesting synergy between online and offline bhakti which, if one were to make a prediction, will be the future face of Hindu religiosity in the age of the Internet. The vast majority of these pictures show the laptop—with the webcast clearly visible on the screen—sharing space with the gods’ idols in family shrines: it is almost as if the laptop has become an essential ingredient of the puja samagri (paraphernalia of worship). In many cases, the webcast is projected onto a wall-mounted screen which dominates the shrine, looking down on the murtis. In other instances, the worshippers gaze not at the god’s image as they pray, but at the smartphones in their hands. In yet other selfies, we find devotees doing rituals with one eye on the laptop screen so that they can follow the postures and mudras of the temple swamis conducting the puja miles away. In a handful of cases, it is the screen image of Swaminaryan that is the object of puja.

What are these laptops doing in puja rooms? Many things all at once: they are virtual temples, virtual kirtan mandalis, virtual pujaris and even virtual family elders teaching the ways of worship to younger generations. By logging in at the same time, geographically dispersed and socially distanced worshippers create a sense of community with a distinctive identity, and by mirroring the pujaris’ words and gestures online, they become a link in the chain of tradition.

These pictures reveal a new model of hybrid puja in which the real and the virtual, the offline and the online, begin to shape each other. In this new way of worship, the murtis in the family shrines are real, material objects that you can touch, wash and dress, but the consecrated murti is present only as an image on the screen. Likewise, the flowers and the incense are real, but the priests leading the ceremonies are present only virtually. The how-why-when of rituals remain pretty much unchanged, but they have now found a novel mode of transmission that defies all limits of space and time and can create communities of worshippers across cities, nations and continents.

This hybrid puja style went viral in India as well, thanks to the intervention of the state, temple regulatory bodies and the e-commerce platforms that have sprung up to exploit India’s immense god market, estimated to be worth around 40 billion dollars.

Most Hindu temples in India prohibit photography from inside the garbha griha and routinely display stern “No Cameras Allowed” notices on their premises. Who would have thought that these same temples would so readily embrace webcams gazing down on the gods’ murtis 24X7? Except for Sabarimala, whose tantris defended the tradition of keeping cameras out, most temples wasted no time in jumping on the online bandwagon.

The southern States took the lead. Tamil Nadu’s historic temples—the Meenakshi Amman temple in Madurai, the Kapaleeswarar temple in Chennai and the Mariamman temple in Samayapuram − were chosen by the State’s Hindu Religious and Charitable Endowments Department to begin live-streaming their pujas during the lockdown. This intervention came just in time for a series of popular rituals in April and May, including the wedding ceremony of the god Siva as Sundareshwar and the goddess Meenakshi in the Madurai temple and the panchprakram festival for the health-giving goddess Mariamma in Samayapuram, both of which were webcast live and apparently watched by 5,00,000 devotees around the world.

Karnataka and Telangana followed suit, combining live-streaming with online pujas in their well-known temples. Out of thousands of temples that dot Karnataka, the State government opened 50 major temples for live-streaming and even promised to instal webcams in the temples that needed them. In addition, the State contracted with Pure Prayer, a spirituality e-commerce website of the Mysore-based Cycle Pure Agarbathies, which offers everything from “astrology, online temple puja bookings, parihara pujas, purohit bookings, customised Yatra packages to various Spiritual and Holy places (Kshetras) across India”. Using this app, devotees can book online pujas of their choice, in the temples of their choice, for a fee. Temple priests will perform the pujas in the name of the devotee and the prasad and holy water will be couriered to the devotees. The idea is to keep people praying, the priests employed and the temples in business.

Telangana also turned to the Internet to offer book-a-puja services but did not outsource these to a private site. Devotees are invited to the State government portal for civic services (ts.meeseva.telangana.gov.in) to book pujas and pay online for the services.

The state, however, is not the only ramp connecting temples to the Internet highway. Individual temples and godmen make their own independent arrangements with e-commerce platforms. Even individual temple priests can enter into service contracts with puja-ordering websites. Enterprising pujaris do not even have to be associated with any temple to get a piece of the online spirituality business; all they have to do is to register on the many pandit-booking sites that match the appropriate puja/havan/astrology expert with clients. Truly enterprising pandits do not even need a pandit-booking site; all they need is a big enough client list and a good internet connection to get into business on their own.

A case in point is VR Devotees, an online spirituality services provider that has emerged as a major player in the spirituality business. The calling card of VR Devotees is “VR”, or virtual reality, a simulation of the physical reality in three dimensions using special headsets that evolved largely in the video-gaming industry. But even without the VR headset, the website offers high-quality, wide-angle images that are vivid and immersive. Backed by rich venture capitalists and in alliance with Airtel, this Bengaluru-based company has reported quantum leaps in its business during the COVID months. In a phone conversation, Ashwin Garg, one of the co-founders of the company, reported that before COVID, the start-up had to reach out to temples and plead with them to go online, but now the temples were chasing the company. There are some 300-odd temples and ashrams from all parts of India live-streaming rituals from their inner sanctums on the VR Devotees platform. The traffic to its app reportedly grew by 50 per cent during the lockdown, with the majority of the clients coming from within India. The live-streaming, incidentally, is really a freebie meant to hook the viewers for paid services which, eventually, will include all things spiritual, from online pujas, spiritual tourism and puja supplies. VR Devotees aims to become the Amazon of the spirituality business in India. Then, of course, there are freelance pujaris. No one knows the scale of this unorganised sector of India’s spirituality market, but media reports suggest that priests who used to visit their clients’ homes to conduct pujas and homas are now providing the same services through Skype, WhatsApp or Zoom. Both the priests and their clients stay put in their homes, as the former guide the latter through the ritual. These pujas-on-Skype are apparently in high demand and will, given the convenience, probably outlast the pandemic.

While freelance pujaris appear to have expanded their businesses, the “traditional” online order-a-puja services ran into logistical problems during the lockdown. Ordering a puja from websites like Sarnam.com, epuja.com, eprarthana.com, Rudraksh-ratna.com or any of the hundreds of similar websites is no different from ordering an item from Amazon.com. The devotee picks a particular puja, or a havan, to be performed in the temple of his/her choice, on a particular day and for a particular purpose which can range from seeking relief from disease, looking for a job or a mate, placating the navagraha (nine planets) and such. The puja is put in the “shopping cart” and payment is made electronically. The order is sent to the local representatives of the websites who have some working connections with the temple pujaris. The pujari then does a puja in the name of the devotee/customer who then receives non-perishable parts of the prasad as proof of the puja. Some websites also offer online video connections at the time of the puja. Everyone involved, naturally, gets a cut; what the devotees used to put in the temple “hundi” now gets dispersed among individual operatives in this complex supply chain.

This business model ran into logistical problems during the lockdown, as the local connections between the representatives and the pujaris became difficult, if not impossible, to maintain. But once temples open, there is every reason to expect that online puja orders will pick up again, and perhaps even grow in volume.

New technology, old-time religion

The Internet is often presented as evidence for Hinduism’s elective affinity with the modern world. One often hears the argument that there is a natural fit—a “marriage made in heaven,” as Vinay Lal, a University of California historian put it—between Hinduism and the Internet. It is argued that only a pluralistic and decentred religion like Hinduism with its 330 million gods and goddesses and with no central governing authority can match the anarchy, the playfulness and the openness of the World Wide Web.

If nothing else, the pandemic has demolished this bit of Hindu exceptionalism. It is true that being image-centred and ritualistic, Hindu pujas can exploit the visual and audio capabilities of the Internet in ways that the spartan sermons of, say, a Protestant church or a mosque cannot. But that said, all religions, without exception, proved themselves to be equally adept at using online technologies to keep the flock together during the COVID crisis—even the ultra-orthodox Jews, who traditionally shun the Internet, found ways to use it.

There are nevertheless economic and political aspects of the way in which Hindus use the Internet for devotional purposes that set them apart.

It is, above all, the absence of any sign of unease with the spirit of capitalism pervading online worship that stands out as a truly distinctive feature of Hinduism. The devout appear to have no qualms about having rituals sacred to them conducted through a thoroughly profane, for-profit, mode of buying and selling. Can you really put a prayer in a “shopping cart”? Is not the distinguishing mark of a religious experience its solemnity, a feeling of sacredness which comes from being set free, even momentarily, from everyday monetary exchanges?

Sending out requests for prayers to be conducted on your behalf by someone else is not particularly Hindu. Jews do it, Christians do it, and they all do it for pretty much similar reasons—to seek God’s blessings for health, wealth, success, getting married, begetting children, and so on. Every year, Judaism’s holiest site, the Western Wall in Jerusalem, receives hundreds of thousands of prayer requests through emails and letters. These requests from distant strangers are printed out and placed in the crevices of the Wall, a time-honoured practice that is supposed to make the prayers come true. No money changes hands—the requests are honoured by charities, religious schools and foundations as their religious and civic duty. Or take Pope Francis’s click-to-pray app, which anyone can download from Google Play and join the Pope in prayer for such good things as peace and justice. No money changes hands. Even in the more capitalist-minded Protestant churches in the United States, some scammers aside, online prayer requests are taken care of by the virtual congregation. Again, no money changes hands. Believers do make donations as tithes and bequests, but money is kept out of the act of praying itself.

Online Hinduism has chosen to hybridise Internet-mediated commerce with the age-old idea of dakshina that is owed to the temple priest. The haggling panda may have been replaced by prices set by the MBAs (management school graduates) running the websites, or by the temple boards themselves, but the transactional nature of traditional pujas is alive and well online. The basic idea is that no puja is successful without the dakshina, and higher the dakshina, the greater the quality of care by the pujari and thus greater the chances of success. If there is a marriage made in heaven, it is not between Hinduism and the Internet per se, but between the transactional nature of Hindu puja and e-commerce.

For the beautiful people who had the luxury to work from home through the lockdown, the pay-to-pray option clears the path to secede from yet one more public space—the stone-and-brick temples. Why stand in lines, why suffer the sea of humanity at the temple doors, when you can have your prayer done for you while you sit at home? This, too, is not a new trajectory: Indian middle classes have responded to the constitutionally mandated equal access to public institutions to all castes and classes by simply withdrawing from them into private enclaves. What happened to public education, public health, public transportation may now be on the cards for public temples as well.

Contrary to some techno-utopians who see the Internet as a force for disruption of traditional religious authority, the picture that emerges from India is one of continuity and consolidation of traditions. True, the techies who manage the e-puja and live-streaming websites are forcing changes in the “no camera” or “no foreigner” policies of some temples. But the structural relations of money and authority between the pujari and the yajman have not really altered. Nor is there much sign of any innovations, either in rituals or in beliefs: the same age-old rituals, accompanied by the same incomprehensible Sanskrit mantras, are what you get when the pujas get live-streamed or when it is put in a shopping cart.

Indeed, online puja services have become a new vehicle for propagating age-old pseudo-sciences and superstitions. Online pujas come with all other auxiliary services, including above all, astrology. When the State government of Karnataka, for example, contracted with Pure Prayer during the lockdown, it was facilitating not just pujas but also janm-kundali and Rahu-Ketu pariharan services from “expert Vedic astrologers”, along with consultations with Vastu shastris.

The devotional and the political together

When the Ramayana was first telecast in 1987, the Ram Janmabhoomi agitation was brewing. The political Hinduism of the latter cashed in on the devotional Hinduism of the telecast and went on to demolish the Babri Masjid. The new medium of TV became a material force in HIndutva’s march to victory.

What of the new online media? Is there a connection today between the devotional Hinduism that is flourishing online and the political project of reimagining India as a Hindu nation? After all, India in 2020 is not the India of the 1990s. Hindutva has already captured the state, brought the institutions of civil society within its own sphere of influence, and laid claims to the site of the demolished masjid in Ayodhya. So, is the danger of devotional Hinduism feeding into political Hinduism a thing of the past?

It would be a mistake to think of devotional practices as irrelevant to, and separate from, the political project of consolidating a nation on religious lines. The whole point of Hindu nationalism is to make being Hindu synonymous with being a “real” Indian, and that requires suffusing every aspect of everyday life with Hindu myths, symbols and practices.

Online Hinduism is tailor-made for this project of creating and affirming Hindu identities across time and space—and therein lies its danger.

Meera Nanda is a writer who specialises in the history of modern science.

Public Health

What ails biomedical research

P.K. Rajagopalan the-nation

India was once a pioneer in medical research. Indian and British stalwarts did excellent plague research (The Great Plague Commission of the 1900s) and malaria research during pre-Independence days and the decades immediately following Independence. The Indian Research Fund Association, started in the1900s, was the body in charge of giving grants for medical research. After Independence, this became the Indian Council of Medical Research (ICMR), with Dr C.G. Pandit as its first Director. The first research institute founded in the country was the National Institute of Nutrition in Hyderabad and the second one, started in 1952, was the Virus Research Centre (VRC) in Poona (now Pune). The post of Director of ICMR was upgraded to Director General (D.G.) since several more institutes were started after Independence.

The ICMR has come a long way from the days of Dr C.G. Pandit, who was a great visionary. The tradition of excellence he established continued for many years under some later D.G.s too. There were stalwarts like Dr C. Gopalan, Prof. V. Ramalingaswamy and Dr A.S. Paintal (who retired in 1990). Their stewardships can be said to be the golden era of progress and expansion in research. They were all Fellows of the Royal Society, were eminent scientists of international repute and they focussed on quality research. Many Institutes came up for different specialities such as malaria, filariasis, kala azar, and so on and were doing problem-oriented research work. In course of time, everything petered out into routine research, like it was just a job.

Current research

One may ask what present-day bio-medical “research” in India is all about. There are many institutes in many disciplines. There was an interesting incident I would like to quote from my experience when I was the Director of the Vector Control Research Centre in Pondicherry (now Puducherry). Sometime in 1981, the then Prime Minister, Indira Gandhi, asked the then Union Health Minister, B. Shankaranand, what ICMR was all about. A meeting was then organised at the ICMR to which Indira Gandhi was invited. The Directors of different ICMR institutes made audiovisual presentations of the work their institutes were involved in.

Indira Gandhi listened patiently, making notes. She then complimented the scientists for their presentations and thanked the hosts. In the end, she said that she could not understand why there was so much of night blindness in Rajasthan; why so many women suffered from cervical cancer; and why so many people died of malaria and other communicable diseases. She wanted to know what the ICMR has done about them.

It was a revelation to many that the fruits of the research done at the ICMR had not benefited the common man. For many years after Independence, and even some years before, philanthropic foreign organisations such as the Rockefeller Foundation (R.F.) and the Ford Foundation were working in India, the former in the health sector and the latter in the agricultural sector. The VRC was started by the Rockefeller Foundation in collaboration with the ICMR and became world famous for its work on arthropod-transmitted viral diseases.

A mini serological survey done by the VRC for the first time in India in 1949 showed the presence of antibodies to several viral diseases, including Zika, in human sera even at that time. The VRC’s work on Japanese encephalitis (J.E.),and Kyasanur forest disease (KFD) was outstanding in the field of ecology and epidemiology. The Rockefeller Foundation wound up its operations in 1970. The ICMR could not maintain the tempo of work and became a large government organisation.

The important question is whether we have achieved any progress in the control of diseases such as malaria, dengue, chikungunya, Japanese encephalitis, KFD and so on. We are still facing episodes (and epidemics) year after year even now. There are also some neglected tropical diseases (NTD) such as scrub typhus which were totally ignored. Many research institutions were started in different parts of India for bizarre reasons, for example some politician wanted an institute in his constituency or some scientist had to be rewarded with a Director’s post.

Institutes were also created to relocate experienced and qualified scientific personnel displaced because of extraneous reasons, VCRC and Malaria Research Centre (MRC), and sometimes even to accommodate scientists whom the government did not know how to deal with (for example the Centre for Research in Medical Entomology, CRME). Then there were regional aspirations to be satisfied, so there are regional medical research centres. In some institutions, there is obviously a lot of replication of work. There was no more problem-oriented research.

The questions Indira Gandhi raised several decades ago seem relevant even now. Many health problems continue to haunt us, some of them new to science such as COVID-19, and we just do not seem to be able to face the situation on a war footing. In my view, the Indian Council of Agricultural Research (ICAR) contributed substantially to the nation through its green revolution (thanks to Prof. M.S. Swaminathan) and white revolution (thanks to Prof. Varghese Kurien). Of course, progress in the field of health is not perceptible and publication of papers in journals is not a solution.

Public health problems

Even now, people continue to suffer/die of malaria, filariasis, kala zar, KFD, and so on all over India. I have written several articles in the Journal of Communicable Diseases and in magazines such as Frontline to highlight the deficiencies in our approach to biomedical research. But no one in authority seems to have taken any cognisance of these.

In the1930s, Hitler’s Germany and Stalin’s Russia prescribed thrust areas in research, damaging science to such an extent that many scientists migrated to other countries. Our present-day situation is similar. The priority areas in biomedical research now get funding only if there are catchy phrases like molecular biology, climate change, and so on. Foreign collaboration has now reached such a ridiculous extent that we have become suppliers of raw material for research (for example human blood samples infected with malaria/filarial parasites) to foreign collaborators for their research work in return for dollar grants and foreign trips. Such foreign collaboration has stifled meaningful indigenous research, and scientific workers, especially those who return to India after higher training abroad, want air-conditioned laboratories and costly imported equipment, and they also want to publish papers which may not have any relevance in solving public health problems.

As far as public health is concerned, the problems are in the field and emphasis should be on working in the field. Unfortunately, it is a fundamental problem in our polity, as in many parts of the world, that science and research are no longer directed towards problem-solving. According to Dr Halfdan T. Mahler, a Director General of the World Health Organisation (WHO), biomedical research is oriented towards palliatives, which continue to attract those who finance research, not towards finding cures. He felt that indigenous planning and working did not suit those who were “market fundamentalists and free trade theologians”.

The government has been liberal with funds. The institutes have huge buildings, costly equipment and are flush with money. Most of them have done almost nothing to contribute to the immediate health needs of the country; and some are just replicating the work of other institutions. But all of them do publish a number of papers in journals. In 1975, Dr Gopalan, D.G., ICMR, started scientific advisory committees (SAC) for each institute. This was meant to have some kind of a performance audit. The SAC of each institute, chaired by the D.G., had several scientists from outside the ICMR with expertise in the disciplines in which the institutes were working. There really was intellectual discussion, and positive directions were given. This system was continued by his successors, Prof. V. Ramalingaswamy and Prof. A.S. Paintal, who even improved upon the system by delegating more decision-making powers.

Nowadays, the D.G. does not attend the SACs of any institute. Scientists from outside the ICMR who have retired are appointed as chairmen. While it is certainly not my intention to downplay the role of outsiders as chairmen of the SACs, many of them are square pegs in round holes. The ICMR sends its own representatives and they speak mechanically about ICMR policies, Five Year Plans, and so on. If you ask them anything more, they say they have no briefing.

A well-known scientist who is no more used to say that the work in most institutes was routine, repetitive, like flogging a dead horse, with no solution being found to the problem at hand. Most of the publications from these institutes are reviews of already published papers. Routinely, recommendations from each institute are made, discussed by an SAC in the ICMR, and then sent to the Health Ministry and ultimately to the government, where they are filed. There is no evaluation of what has been done and whether they are useful to the health needs of the country. Does it indicate progress in biomedical research? Not that there are no problems with particular institutes. They have many constraints. More than 90 per cent of an institute’s budget goes towards meeting salaries. Vacancies in senior positions are never filled. And invariably retired scientists are appointed as consultants. A Director of an institute faces all kinds of problems, both administrative and scientific. If there is an epidemic when lots of people die, like Japanese encephalitis and now COVID-19, they are just not prepared to meet the crises.

Social value of research

Prof. A.S. Paintal, who retired as D.G., ICMR, in 1990, wanted to introduce a sense of purpose among scientific workers. He was highly critical of assessing the performance of a worker on the basis of the number of publications and their citations. “As a general rule,” he said, “it is quite out of place... it undermines the far more useful work in more urgent fields (such as leprosy, of no value to the West). It is, therefore, only fair that such scientists are assessed on the basis of other criteria such as usefulness of their work to Indian S&T [Science and Technology] and social value. In fact, by a judicious mix of these criteria it should be possible to make a fair judgment about whether the best ‘tomato’ is better than the best ‘potato’... even in the same institute. Such approaches ensure that certain people who have devoted a large part of their time to the development and housekeeping aspects of scientific institutions are not left out in the assessment process.” He even started the Society for Scientific Values. However, his efforts for radical reforms in Indian institutions, as D.G., ICMR, and as president, Indian National Science Academy (INSA), met only with negative response.

Field work is vital

Thankfully, for diseases such as malaria, which is still prevalent in large tracts of India, the National Vector Borne Disease Control Programme (NVBDCP) shoulders the blame, though the implementation of the control strategy is with the State governments. Japanese encephalitis is one such virus disease which periodically occurs every year in epidemic form following the monsoon season. We just do not have the infrastructure to monitor the vector population density routinely since disease in humans is the result of spillover of the huge mosquito population. They have produced vaccines for Japanese encephalitis and KFD (another virus disease), but their utility is limited because of deficiency in implementation, and they are multi-dose vaccines.

There are not many entomologists available to work in the field. The available few are more keen to do work in laboratories on molecular aspects of entomology and not in the field. This aspect is worrisome for the national programme for diseases control. Even epidemiologists are more wedded to the armchair and would like to solve a problem through computers. This was the major difference when the R.F. was working, where its top scientists, all foreigners, were in the field all the time and shared the hazards with their Indian counterparts in the field. Major advances were made in the understanding of diseases such as Japanese encephalitis and KFD. I was associated with them, living and working in a forest environment for 13 years!

Once the R.F. left, our government should have continued to work on unfinished business, such as the involvement of bats in the natural cycle of KFD. Now, bats are shown to be important in COVID-19. We have lost a lot of time. In KFD, there are three important cycles: the bat-tick-bat cycle; the small mammal-tick-small mammal cycle; and the monkey-tick-man cycle. Whenever an episode of monkey deaths with human disease is reported, as is frequent in pockets throughout the Western Ghats, the institutes rush a team to the spot, do routine studies, but concentrate only on the third aspect, that is, the monkey-tick-man cycle. The first two aspects, which are most important, are totally ignored because this involves intensive field work. They just are not interested in the source of the virus and how it spreads from the original reservoir, bats, to small mammals to the tick population. They publish a quickie and are satisfied. It is a tragedy that no complete investigation of the disease or the virus is done in any area.

The coronovirus pandemic

Now we have the coronavirus, a pandemic that continues to claim thousands of lives all over the world. Who has the responsibility ultimately? The involvement of bats in the natural cycle of a virus (KFD) was published by me as early as 1969. There is no evidence that any serious research work has been undertaken on the reservoir status of bats, particularly since dangerous viruses like Ebola, KFD, and even COVID-19 have been associated with bats. A headline in The Times of India dated July 23, 2019, was frightening: “India Needs to Prepare for Ebola, Other Viral Diseases”. It quoted an article in the Indian Journal of Medical Research: “Bats are thought to be the natural reservoirs of this virus…. India is home to a great diversity of bat species…” But Ebola has not yet come to India, though there is every possibility of it coming, but interest in bats seems to have waned.

Weifeng Shi, a professor at the Key Laboratory of Etiology and Epidemiology of Emerging Infectious Diseases in Universities of Shandong Province, said that “2019-nCoV originated from one source within a very short period and was detected relatively rapidly”. To learn more about the virus’ origins, the researchers compared the SARS-CoV-2 genetic sequence with those in a library of viral sequences and found that the most closely related viruses were two coronaviruses that originated in bats, the greater horseshoe bat and Rhinolophus sinicus. One can understand that the health authorities are fully engaged in combating the pandemic. But from a research angle, nothing serious seems to be on the anvil.

Zoonotic aspects of coronavirus

The BBC environment correspondent reported on July 29 on the work of Prof. David Robertson, of University of Glasgow, who has said that the coronavirus has been circulating among bats for several decades. It is really shocking that there is no evidence of any work being done on the zoonotic aspects of coronavirus, particularly since a related virus, Ebola, has been acknowledged to be associated with bats. With the spread of the new coronavirus in China and the world over, scientists are attempting to find out its origins. However, a recent study shows that bats of the species Rhinolophus sinicus may be the most probable hosts. Since bats were shown to be the carrier of SARS in 2003, not only have many severe acute respiratory syndrome-related coronaviruses (SARSr-CoV) been isolated from bats, these mammals have been recognised as the natural reservoir for over 100 other viruses including MERS, the Ebola virus, the Marburg virus, the Hendra virus and the Nipah virus, to name a few.

Why and how are the bats able to carry and spread so many viruses? Wudan Yan noted: 1. Bats’ high-density lifestyle sets up a perfect storm of viral transmission; 2. The tremendous diversity in and among bat species, which accounts for roughly 20 per cent of all mammals; 3. Bats fly far and wide, carrying the viruses to more areas than most mammals; and 4. Immunity and body temperature created by high flight. Shi Zhengli had already implicated bats as a possible reservoir of COVID-19. They have isolated the virus from greater horseshoe bat and Rhinolophus sinicus (Rajagopalan, 2020). There does not seem to be any interest or effort by any research organisation to do any serious long-term study on the zoonotic aspects of the coronavirus.

It is high time that the country’s premier biomedical research organisation, the ICMR, starts detailed and long-term studies on the zoonotic aspects of diseases, including COVID-19. This is essential for the successful development of policies and practices that reduce the probability of future zoonotic emergence, for targeted surveillance and strategic prevention, and, above all, to engage personnel from outside the medical community also, ecologists, wildlife biologists, veterinarians and even management and social scientists, to understand the interface.

In an article dated August 2, The Hindu quotes Nature Microbiology: “The novel coronavirus (Sars-CoV-2) which has so far infected over 17 million, and killed nearly 7 million across the world, have been circulating unnoticed in bats for decades. Bats have been the primary reservoirs for novel coronavirus. Prof. Satyajit Mayor, Director of the Bangalore-based National Centre for Biological Sciences, says: ‘Many species of bats harbour several viruses which can cross over to new hosts. When we disrupt habitats, we will face more such threats.’” Why are not the specialists at the National Institute of Virology taking up the study of bats?

Unfortunately, over the years, science administration in India has become skewed. Even now, we tend to copy international organisations like the World Health Organisation (WHO). They are abstract bodies—their scientists are appointed according to country-designated quota. They work by consensus, by voting in committees. Compromises are made. Like the WHO, we also prepare various reports. Basic raw data are collected at the village and block level (the results are often fudged), and these pass through different levels in the hierarchy at the district, the State, and the national level where it is vetted and finally sent to the WHO, where these are sanctified. It is a pity that such data form the basis, usually, for planning control measures in developing countries.

Many multinational drug manufacturers find it easier to test their products in developing countries through the good offices of the WHO. Nature magazine once reported that the WHO was the sales manager of multinational companies. Also vaccine trials, testing of new insecticides, application of new techniques, etc., have a ready organisation to sponsor them in developing countries. Imagine an institute meant for vector research undertaking a long-term hospital-based trials of an anti-filarial drug produced by a multinational company, and which was earlier condemned by Parasitology Today (a British scientific journal) as not only ineffective, but also dangerous. There are now only sponsored research!

Many insecticide companies from abroad get their product tested in India under grants from WHO Pesticide Evaluation Scheme (WHOPES). Effective and well-tested biopesticides produced indigenously find it a herculean task to reach the stage for operational use. They face innumerable hurdles at every stage and nobody at the top level even tries to remove the obstacles. The headquarters of the ICMR looks more like a big administrative office.

India’s publication growth rate

I now refer to a paper, “Status of India in Science and Technology”, that looks at India according to its publications output in the Scopus International Database, 1996-2006, written by B.M. Gupta and S.M. Dhawan, National Institute of Science, Technology and Developmental Studies. The contents are revealing. Taking only the publications into account, our annual average publication growth rate was 7 per cent compared to 21 per cent for China. India’s national publications’ share in the Physical Sciences, the Life Sciences and the Engineering Sciences has been global average in each discipline. But in Health Sciences, its share was the lowest, much below global average.

A detailed study of the data presented showed that there were 35 high productivity institutions in science and technology in India and, regretfully, the ICMR is not one of them. A list of productive Indian scientists showed none from the ICMR. The authors mentioned 50 papers from India which received higher citations compared with their counterparts under the ICMR. Of these, 28 papers have lead authors from Indian institutions whereas the remaining 22 papers had lead authors from a foreign institute. The Indian institutional participation in these 50 high-cited papers was from 25 organisations (ICMR not mentioned). It makes very sad reading for one who has the interest of ICMR at heart and who had spent a lifetime working with ICMR.

But where are we now? Now the trend is towards project-oriented and paper publishing research and competition at every level and not problem-oriented research. Hard field work has given way to cozy research in air-conditioned laboratories equipped with computers, with readymade, commercially available and easy-to-operate test kits. The emphasis is now on the number of papers one has published, the amount of grants one has generated and the number of Ph.Ds one has produced. Everything is time-bound now. No more a sense of adventure or curiosity to find solutions to solving our problems. Have we solved any health problems so far? There is no long-term research anymore. Field work has lost all priority. There are so many restrictions on scientists by a huge number of rules and regulations. How can any work on subjects such as Ecology, Epidemiology, Entomology and Zoonoses be conducted? How can our country ever progress in the area of biomedical research?

There is too much of red tape at every level. Take for example the case of Dr. Shiva Ayyadurai, an Indian-American scientist, who returned to India, heeding the call given by our Prime Minister to come back to India. He was prevented by the top administrators from doing anything worthwhile. This was widely quoted in Nature and in many foreign publications. He went back to the United States after- knocking his head against the Indian bureaucracy. Hitler’s Germany and Stalin’s Russia saw many scientists escape to freedom to do quality research. This is happening in India.

China is now luring scientists, giving them position and importance. China now leads in areas such as Stem Cell research. One such scientist who returned to China and became Dean of Peking University contrasted China’s “soul searching” with the U.S’ “self satisfaction”. Should India too not “soul search”? The argument that China is totalitarian while we muddle through our democracy is not good enough. We need good leadership, dedication, discipline and determination. Can ICMR emulate premier institutions like the Indian Institute of Science or the Tata Institute of Fundamental Research in quality research?

It is a utopian dream.

Dr P.K. Rajagopalan is former Director, Vector Control Research Centre, Pondicherry, Indian Council of Medical Research.

Criminal contempt? Not now, My Lords

M.R. Shamshad cover-story

The Supreme Court has found lawyer Prashant Bhushan guilty of criminal contempt of court for two tweets. It has recorded that “the tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy”, it “tends to shake the public confidence in the institution of judiciary” and undermines the dignity and authority of the institution of the Supreme Court of India.

Origin of Contempt Jurisdiction

At present contempt jurisdiction of higher courts is understood to be a matter of discharging administration of justice and jurisdiction of a court to punish the person who seeks to scandalise or lower the dignity of the court. The ancient origins of contempt jurisdictions, including its roots in the Pre-Historic Divine Era Theory, is an academic exercise for law majors. For the purpose of the present discussion, suffice it to say that the modern concept, as practised today, emerges out of monarchies. Further, not following a court order is civil contempt of court, which again is beyond the scope of the present discussion.

A monarch would administer justice and, generally, the power and authority of the monarch could not be questioned. Thus, if the decision of a king could not be questioned, then his representative, who discharged judicial function, was also infallible and could not be questioned. Those who questioned were dealt with swiftly and severely.

Accordingly, the concept of criminal contempt started to evolve. Further on in history, the power to punish those lowering the dignity or scandalising the court was understood to be commonly inherent with court systems in democracies. Jurists relate this theory of common law contempt powers with the opinion of Justice John Eardley Wilmot in Rex vs Almon (1765), where he opined that this power of contempt “is a necessary incident to every court of justice whether of record or not, to find and imprison for contempt to the court, acted in the face of it. It is as ancient as any other part of common law”. He further stated that if resistance to the minister of a court is punishable then “libelling a judge in his judicial capacity is also punishable”. However, the actual expression appears to have been used first by Lord Chancellor Hardwicke in Roach vs Garven (1742) in a judgment commonly cited as the St. James Evening Post Case. The jurist Sir John Fox described his understanding of Rex vs Almon (1765) thus: “If the King is the fountain of justice and he delegates the power to judges… arraignment of justice of judges is arraigning the King’s justice”. Much later, contempt jurisdiction was made statutory in the United Kingdom.

In 1814, Andrew Jackson, a major general of the United States Military (who later on became the seventh President of the U.S.), arrested a judge who allowed a habeas corpus petition and released the author of an article that was critical of Jackson’s conduct. Jackson appearing in court after a show-cause motion was granted for the attachment of his property for contempt, pleaded that “summary power of contempt” violated his rights under the U.S. Constitution. He argued that “the necessity, which allowed circumvention of constitutional privileges in contempt cases, was a lesser one than the necessity which prompted his conduct”. Although Jackson was found guilty of contempt, he was let off with a fine of $1,000. This, again, was an exercise of power under the common law power considered to be inherent in the jurisdiction of the court.

In 1831, in some manner, contempt power was made statutory in the U.S. However, in Bridges vs California (1941), the U.S. Supreme Court raised the question as to whether the court should still exercise its powers to punish by contempt, out of court publications, on the basis of a practice that was “deeply rooted under English common law at the time the constitution was adopted” and adopting English common law in this field was to deny the generally accepted historical belief that the objects of the American Revolution was to get rid of English common law on liberty of speech and of press”. The court sought to dispel the concept of wide contempt jurisdiction developed through common law, if it affected the right of free speech.

Immediately, thereafter, in Pennekamp vs Florida (1946), the court discharged the contempt in relation to publications that criticised its handling of cases, making allegations of bench hunting and prioritisation of hearing of cases. The publication stated that the matter, which otherwise remained pending for long for technical reasons, all of a sudden, before a particular judge, became urgent. It further stated that “there you have the legal paradox; working two ways... Speed, when needed. Month after month of delay when that serves the better”.

In relation to fair administration of justice, the U.S. Supreme Court stated: “No definition could give an answer. Certainly this criticism of the judge’s inclinations or actions in these pending non-jury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues.... For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants” and also stated that “free discussion of the problems of society is a cardinal principle of Americanism”.

This remnant of the colonial Raj may possibly no longer have a place in a post-modern society. In fact, the U.K. has taken steps in this regard. The U.K. Law Commission Report, 2012, reached the conclusion that the offence of scandalising the court, was, in principle, an infringement of freedom of expression that should not be retained without strong principled or practical justification and the offence was no longer in keeping with current social attitudes. Accordingly, this category of contempt was abolished in the U.K. in 2013. However, in the U.S., in the Justice Manual (previously known as the USAM), “contempt of court” is still defined as “an act of disobedience or disrespect towards the judicial branch of the government, or an interference with its orderly process. It is an offense against a court of justice or a person to whom the judicial functions of the sovereignty have been delegated”.

Contempt Jurisdiction in India

In India, the law of contempt has direct relation with the common law jurisdiction of England. The “courts of record” in England exercised contempt powers to convict persons who scandalised the court or the judges. The courts of record have been indicative of a superior status rather than a court that is regulated through procedure. A court that is such a high and super eminent authority that its truth is not to be called in question. The Judicial Committee of Privy Council recognised that the Indian High Courts shall have the same inherent power to punish for contempt, especially the three Charter High Courts—Calcutta, Bombay and Madras. The other High Courts of British India, by virtue of being courts of record, started exercising this power. Over a period of time, various States such as Hyderabad, Madhya Bharat and Rajasthan brought contempt laws. In the interregnum British India passed the Contempt of Courts Act, 1926, which was replaced by the Contempt of Courts Act, 1952. There were various efforts to improve this 1952 law. Finally, the H.N. Sanyal Committee was set up to examine the law relating to contempt of courts in the light of the position obtaining in India and various other countries. The committee gave its report in 1963. It recorded the principle underlying the law of contempt as expounded in the Almon case: “the power of committing contempt was the emanation of royal authority, for any contempt of court would be contempt of the sovereign.” Pursuant to this report, the Contempt of Courts Act, 1971, was passed.

Before that, when the Constitution of India was framed, Articles 129 and 215 of the Constitution empowered the Supreme Court and the High Courts respectively “to punish for contempt of itself”. The power to make law relating to contempt was set out in Entry 14, List III of the Constitution. While framing Article 19, to protect freedom of speech, in Article 19(2), certain exceptions were carved out in relation to law-making powers, which may affect the rights guaranteed under Article 19(1). One of the exceptions was the power to make law imposing reasonable restrictions on freedom of speech and expression “in relation to contempt of courts”. The issue was discussed in the Constituent Assembly in some detail. Many favoured it, hence it was added in Article 19(2). However, a few members stood strongly against this addition.

One R.K. Sidhwa on October 17, 1949, opposed it by saying: “After all, Judges have not got two horns; they are also human beings. They are liable to commit mistakes. Why should we show so much leniency to them? We must safeguard the interest of the public". He further stated that “... Even there, I say the High Court judges are not infallible; they have also committed so many mistakes. They do not want any comment to be made against a High Court judge when comment was necessary in the interest of the public life.” Another member, B. Dass, also opposed.

Today, our legislatures are vested with the powers to make laws on contempt. We have a statute called the Contempt of Courts Act, 1971, which defines “civil contempt” and “criminal contempt in addition to the procedure to be followed. Civil contempt is wilful disobedience of the court orders whereas criminal contempt is to “scandalise or lower the authority of court”, “prejudicing or interfering with the administration of judicial proceedings and or administration of justice”. If somebody “tends” to do any of such things, without actually doing it, shall also be liable. The definition is remarkably wide.

Seemingly, we are at a crossroads to see whether the same contempt powers emanating from the absolute powers of monarchs can be vested with wide discretionary powers to judges appointed in the modern-day democratic system where the Constitution is supreme. The judiciary is a strong pillar of our constitutional scheme. It has settled the principle of “basic structure” of the Constitution, which cannot be taken away even by Parliament, the direct representatives of the people of India. It has been strong. It has all safeguards to remain strong, mainly to protect the rights of citizens against mighty executives and the administration. Using the strength of the judiciary against a citizen who criticises it may project it as a court exercising powers on the basis of the principle laid down in the Almon case.

Lastly, can the subjective opinion recorded in the tweets of a lawyer, placed on social media, in relation to the role of the Chief Justice of India have adestabilisingeffect on “the very foundation of judiciary in the Indian democracy”? Respectfully, I would say “No”.

M.R. Shamshad, formerly Standing Counsel for the Government of Uttar Pradesh, is an advocate in the Supreme Court of India.

A case for a new approach to contempt of court

A.G. NOORANI cover-story

In February 1999, the Supreme Court lifted a four-year stay on further construction on the Sardar Sarovar Dam across the Narmada. In an article published in Frontline (“The Greater Common Good”, Cover Story, May 22, 1999) and Outlook, the writer Arundhati Roy criticised the Spreme Court’s decision. The article was later published as a book. The Gujarat government filed a petition in the Supreme Court contending that there should be a ban on the “publication of various matters in different newspapers, journals, and other media touching upon the matter under consideration of the court”. Chief Justice A.S. Anand and Justices S.P. Barucha and B.N. Kirpal scheduled hearings to determine whether contempt-of-court proceedings should be initiated against Arundhati Roy. (On March 6, 2002, a Supreme Court Bench comprising Justices G.B. Pattanaik and R.P. Sethi held Arundhati Roy guilty of criminal contempt of the Court and sentenced her to simple imprisonment for one day and imposed a fine of Rs.2,000.)

In an article called “Courts and contempt powers” in Frontline (April 15, 2000), A.G. Noorani called for a new approach to contempt cases in India in the context of the case against Arundhati Roy. The article is reproduced below.

IN every democratic country governed by the rule of law, the law of contempt is being liberalised. India presents the depressing spectacle of a trend in the opposite direction, launched by its Supreme Court, no less.

The contrast is best illustrated by reading the observations of the Chief Justice of India (CJI), Dr. A.S. Anand, on October 15, 1999, on Arundhati Roy, her essay published in Frontline and in Outlook and her book The Greater Common Good (Narmada Bachao Andolan vs. Union of India & Ors. (1999) 8 SCC 308), with observations made 30 years earlier, on February 26, 1968, by the Court of Appeal in England, comprising the Master of Rolls, Lord Denning, and Lords Justices Salmon and Edmund Davies, on a distinguished barrister, Quintin Hogg, Q.C. M.P., in respect of an article he wrote in Punch. It was entitled “The Gaming Muddle” and appeared under the general heading Political Parley (R. vs. Commissioner of Police of the Metropolis, Ex parte Blackburn (No.2) (1968) 2 Q.B. 150).

In January 1968, the Court of Appeal dismissed Raymond Blackburn’s appeal against a Queen's Bench Divisional Court's dismissal of his application for a writ of mandamus directing the Commissioner of Police to assist in prosecuting violations of the Betting Gaming and Lotteries Act, 1963. While dismissing the appeal, the Court of Appeal criticised the way in which the law had been enforced, the drafting of the various Acts, and their interpretation; in particular, decisions of the Divisional Court. That drove a furious Quintin Hogg—later the Lord Chancellor, Lord Hailsham—to write to Punch on February 14, 1968, vigorously criticising the Court of Appeal's strictures on lawyers, Parliament, the police, and its earlier decisions; but, he incorrectly attributed to the Court of Appeal decisions which were, in fact, those of the Divisional Court.

The salient passages read thus: “The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legislation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apologise for the expense and trouble they have put the police to? Not a bit of it. Lambast the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending Dies Irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts... The House of Lords overruled the Court of Appeal... it is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option.”

Hogg’s counsel admitted the factual error which was patent and inexcusable in a Q.C. (Queen’s Counsel). The Court of Appeal had given no decisions in gaming cases which were erroneous, nor one which was overruled by the House of Lords.

Compare Hogg’s censures to “some of the objectionable passages in the book The Greater Common Good by Ms. Arunadhati Roy”, which were quoted by Justice Anand in his judgment (paragraph 4; page 312). They read thus:

“I stood on a hill and laughed out loud. I had crossed the Narmada by boat from Jalsindhi and climbed the headland on the opposite bank from where I could see, ranged across the crowns of low, bald hills, the tribal hamlets of Sikka, Surung, Neemgavan and Domkhedi. I could see their airy, fragile homes. I could see their fields and the forests behind them. I could see little children with littler goats scuttling across the landscape like motorised peanuts. I knew I was looking at a civilisation older than Hinduism, slated—sanctioned (by the highest court in the land)—to be drowned this monsoon when the waters of the Sardar Sarovar reservoir will rise to submerge it.

* * *

“Why did I laugh? Because I suddenly remembered the tender concern with which the Supreme Court Judges in Delhi (before vacating the legal stay on further construction of the Sardar Sarovar dam) had inquired whether tribal children in the resettlement colonies would have children's parks to play in. The lawyers representing the Government had hastened to assure them that indeed they would and what's more, that there were seesaws and slides and swings in every park. I looked up at the endless sky and down at the river rushing past, and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect.

* * *

“Who owns this land? Who owns its rivers? Its forests? Its fish? These are huge questions. They are being taken hugely seriously by the State. They are being answered in one voice by every institution at its command—the army, the police, the bureaucracy, the courts. And not just answered, but answered unambiguously, in bitter, brutal ways.

* * *

“According to the Land Acquisition Act of 1894 (amended in 1984) the government is not legally bound to provide a displaced person anything but a cash compensation. Imagine that. A cash compensation to be paid by an Indian government official to an illiterate tribal man (the women get nothing) in a land where even the postman demands a tip for a delivery! Most tribal people have no formal title to their land and therefore cannot claim compensation anyway. Most tribal people—or let’s say most small farmers—have as much use for money as a Supreme Court Judge has for a bag of fertiliser.”

 

Ask yourself as to which of these two passages is sharper in criticism of the court, Quintin Hogg’s or Arundhati Roy’s? Hogg’s, by any test. He wrote in anger; charged the judges with “blindness”, with rendering a statute “virtually unworkable” by “unrealistic, contradictory and ... erroneous” decisions, also with failure to apologise though an apology was called for; and, instead, criticised all others. And all this was based on an admitted factual error.

His article concerned violations of the law on gambling. Her article was about peril to the lives and livelihood of thousands. Hogg wrote in anger from the comforts of his office. Arundhati Roy wrote in pain and anguish after visits to the site at no small discomfort. Even if her disavowal of any “disrespect” to the judges was not accepted, her sarcasm (“tender concern” of the judges) is nowhere as offensive as Hogg's attribution of “blindness” to them. In the context, the “laugh” was not in scorn for the judges. It was a bitter laugh at the tragedy she found—the illiterate tribal people having no legal documents to claim compensation and who in any case, would have “as much use for money as a Supreme Court Judge has for a bag of fertiliser”.

To characterise the court’s decision to vacate the stay on further construction of the dam, whereby the entire place would be drowned by the waters of the reservoir, as one which “sanctioned” the result is no worse than similar censures of its decisions even by academic lawyers, indeed, by judges of the court itself—both serving and retired. The writings and speeches of Justice V.R. Krishna Iyer, a man of deep commitments, are replete with bitter censures.

Freedom of speech, not court’s dignity

Now, compare the way the Court of Appeal handled the Hogg case with the manner in which the Supreme Court dealt with Arundhati Roy. Lord Denning said: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest... Mr. Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uttermost. I hold this not to be a contempt of court, and would dismiss the application.” He did not hold it to be a contempt at all. The other two judges concurred. Thus a bench of three judges unanimously ruled that Hogg’s article did not constitute contempt. They did not rule it to be a contempt and forgave the contemnor out of magnanimity or after his apology, which was not called for in the first instance.

All three laid emphasis on freedom of speech, not the dignity of the court. The aspect of taste was deemed irrelevant. Salmon L.J. said: “It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty—freedom of speech, which our courts have always unfailingly upheld.

“It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, provided it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits.” If “the limits” had been drawn narrowly, Hogg would have been found guilty. Salmon L.J. expressed the opinion that “he owes no apology, save, perhaps, to the readers of Punch for some of the inaccuracies and inconsistencies which his article contains”.

Edmund Davies L.J. was of the same opinion. “Whether despite his great learning and his distinction as a Queen’s Counsel, Hogg paid proper respect to the standards of accuracy, fairness and good taste when he was composing his Punch article may, unhappily, be open to doubt. But whether his article amounted to contempt involves different, and graver, considerations. For my part also, inaccurate though the article is now acknowledged to be in a material respect, I have no doubt that contempt has not been established, this application... My conclusions regarding the fairness and good taste of the article in question are immaterial, and I therefore refrain from revealing them.”

The Indian contrast

However, while the Court of Appeal referred to Hogg with conspicuous courtesy despite his false accusation of “blindness”, Justice A.S. Anand referred to Arundhati Roy sneeringly. One is not concerned here with the Narmada Bachao Andolan (NBA), which was a party in the litigation before the court. Arundhati Roy was not. On July 22, 1999, the court made an order in which it referred to statements by the NBA as well as to Arundhati Roy’s article and her book and said: “We have gone through the statements, the press releases, the article and certain portions of the book referred to above. Prima facie, it appears to us that there is a deliberate attempt to undermine the dignity of the court and to influence the course of justice. These writings, which present a rather one-sided and distorted picture, have appeared in spite of our earlier directions restraining the parties from going to the press, etc., during the pendency of the proceedings in this court.

“However, before we decide to proceed any further, we consider it proper to appoint an amicus to advise the court about the action, if any, which is required to be taken in this respect as also in respect of the writ petition itself.”

On October 15, 1999, the court delivered judgment after hearing the amicus and other counsel. After quoting the offending passages (reproduced above from para 4) Chief Justice Anand said (in para 5): “Ms. Arundhati Roy is not a party to the proceedings pending in this court. She has, however, made comments on matters connected with the case, being fully alive to the pendency of the proceedings in this court. Judicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a blatant manner in which it has been done by her” - violation of an order which bound the parties, not those who were strangers to the proceedings.

Forms of criminal contempt

Criminal contempt may take any of these four forms. Contempt in the face of the court, for example, insulting the judge; publication prejudicial to a fair criminal trial or to civil proceedings; scandalising the court; and other acts which interfere with the course of justice. The instant case involved comments allegedly prejudicial to the Narmada case before the Supreme Court and “scandalising” the court (by denigrating it). All the forms must be tested on the anvil of the citizen’s fundamental right to freedom of speech and expression embodied in Article 19(1)(a) of the Constitution. Clause (2) permits the state to impose, by law, only “reasonable restrictions” on the right in the interests inter alia of “contempt of court”. It is now well settled that “the state”, as defined in Article 12, includes the judiciary and it is as much bound to respect the fundamental rights as the executive and the legislature. Clause (2) of Article 19 mandates the court to balance the competing values of free speech and judicial authority, with a tilt in favour of free speech.

In Britain, there has been no successful application of the charge of "scandalising the court" in the last 70 years; not since the New Statesman was hauled up for writing, very fairly, that Marie Stopes had no hope of a fair trial before Justice Avory, a Roman Catholic opposed to birth control, besides being a notoriously egotistic Judge. A noted authority holds that “the offence of scandalising the court is now so unimportant in practice that it may appear fruitless to spend much space in debating its justification” (Freedom of Speech by Eric Barandt; Oxford; 1985; pages 222).

Or, are we to lapse into “cultural relativism” with the Privy Council and hold that liberalism is all right for the whites but unsafe for us? Zahid F. Ebrahim's excellent article (Frontline, October 8, 1999) tellingly cites Commonwealth and other cases on this aspect. In 1998 the Privy Council noted in Gilbert Ahnee vs. D.P.P., in an appeal from Mauritius: “In England such proceedings are rare and none have been successfully brought for more than 60 years. But it is permissible to take into account that on a small island such as Mauritius the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court is greater on a small island.”

In the case of De Haes & Gijsels vs. Belgium, De Haes and Gijsels had published articles accusing four Belgian judges of bias and had been prosecuted for contempt in Belgian courts. The European Court of Human Rights ruled that “although Mr. De Ha es’ and Mr. Gijsels’ comments were without doubt severely critical, they nevertheless appeared to be proportionate to the stir and indignation caused by the matters alleged in their articles. As to the journalists’ polemical and even aggressive tone, which the court should not be taken to approve, it must be remembered that Article 10 protects not only the substance of the ideas or information expressed but also the form in which they are conveyed.”

Article 10(2) of the European Convention on Human Rights permits restrictions by law on freedom of expression which “are necessary in a democracy” inter alia “for maintaining the authority and impartiality of the judiciary”. This mandates, as Article 19 (2) of our Constitution does, a balance between the two values.

Lack of balance

Chief Justice Anand’s judgment made not even an attempt to strike the balance; cited not a single case; is charged with anger and written in intemperate language unedifying in any judicial pronouncement, especially one of the apex court. No attempt was made to distinguish between the two forms of contempt and then establish where Arundhati Roy had gone wrong, as is evident in the introductory censorious para 5, quoted above. Neither factual inaccuracy nor bad taste is relevant. Nor was any statement of hers held up to establish either “charge” specifically.

This is what Chief Justice Anand wrote: “While hyper-sensitivity and peevishness have no place in judicial proceedings - vicious stultification and vulgar debunking cannot be permitted to pollute the stream of justice. Indeed, under our Constitution there are positive values like right to life, freedom of speech and expression, but freedom of speech and expression does not include freedom to distort orders of the court and present incomplete and a one-sided picture deliberately which has the tendency to scandalise the court.” It is well settled that distortion of the court’s order cannot possibly amount to “scandalising” it.

He continued: “Whatever may be the motive of Ms. Arundhati Roy, it is quite obvious that she decided to use her literary fame by misinforming the public and projecting in a totally incorrect manner, how the proceedings relating to resettlement and rehabilitation had shaped in this court and distorting various directions given by the court during the last about 5 years. The writings referred to above have the tendency to create prejudice against this court. She seems to be wholly ignorant of the task of the court. The manner in which she has given a twist to the proceedings and orders of the court is in bad taste and not expected from any citizens, to say the least.

“We wish to emphasise that under the cover of freedom of speech and expression no party can be given a licence to misrepresent the proceedings and orders of the court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalise the court and bring it into disrepute or ridicule.”

Arundhati Roy had not “decided to use her literary fame by misinforming the public” or used “the cover of freedom of speech”. She simply exercised her right to freedom of speech. Her words went far because of her fame. The judge’s remarks reek of bad logic, bad law, bad English...

How can the passages from Arundhati Roy’s book quoted above possibly justify the charges levelled by the Chief Justice lumped together so indiscriminately—“vicious stultification and vulgar debunking”, misinformation, bad taste, misrepresentation, scandalisation of the court and distortion of the facts?

Chief Justice Anand ruled: “An offence of scandalising the court per se is one such qualification, since that offence exists to protect the administration of justice and is reasonably justified and necessary in a democratic society. It is not only an offence under the Contempt of Courts Act but is sui generis.” This ignores Article 19(2) and the ethos of free speech.

As for prejudice to a civil proceeding, that proceeding was in the apex court by judges of experience, not before a jury. Is the public to forbear from discussing the merits of the Narmada, meanwhile?

Section 5 of the English Contempt of Court Act, 1981 says: “A publication made as, or as part of, a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”

In Attorney General vs. English (1982), the House of Lords held that a Daily Mail article by Malcolm Muggeridge, which argued for a “Pro-Life” candidate in a byelection and in so doing referred to an alleged practice among doctors of allowing deformed babies to die, was not in contempt of the contemporaneous trial of Dr Leonard Arthur on a charge of murdering a Down's Syndrome baby. The Law Lords, who heard the case on appeal, echoed the Phillimore report by stating that what Section 5 was intended to prevent was the “gagging of bona fide discussion of controversial matters of general public interest merely because there are in existence contemporaneous legal proceedings in which some particular instance of those controversial matters may be in issue”. They found that although Muggeridge’s article was likely to create serious prejudice in Dr Arthur’s trial, it met the requirements of the Section 5 defence and was not, therefore, a contempt. In other words, they decided that the report was part of a bona fide discussion of a matter of public interest and the prejudice was merely incidental to that discussion.

Disquieting record

The Supreme Court's record on this branch of the law over the years has been disquieting. Chief Minister of Kerala E.M.S. Namboodiripad was found guilty of contempt for calling the judiciary “an instrument of oppression” and the judges as ones “guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor” (AIR 1970 S.C. 2016). But Union Law Minister P. Shiv Shankar was let off despite his defamatory remarks against the Supreme Court specifically. “The Supreme Court composed of the elements from the elite class had their unconcealed sympathy for the haves; i.e. the zamindars” and “anti-social elements, i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court” (P.N. Duda vs. P. Shiv Shanker, AIR 1988 S.C. 1208).

The late H.M. Seervai pointed out the lengths to which Justice Sabyasachi Mukharji went to exonerate the Minister (Constitutional Law of India, Fourth Edn., 1991; Volume 1; page 75). The court also let off another influential, Mohammed Yunus. He had attacked its ruling in the National Anthem case. But he also said that the judge who held that its singing was not compulsory (Justice Chinnappa Reddy) “had no right to be called either an Indian or a Judge” (AIR 1987 S.C. 1451). Seervai remarked: “If a humble citizen had said of the Supreme Court” what Shiv Shanker and Mohammed Yunus had said, “the public familiar with the recent functioning of the Supreme Court would have had little doubt that the humble citizen would have been found guilty of contempt and punished after the Supreme Court gave an eloquent lecture on its duty to uphold the dignity of the Supreme Court and its Judges in high esteem” (ibid; page 765).

The court's recent practice of oral edicts to the press not to report the names of the judges who made observations during the proceedings is unconstitutional. The other practice, directing the parties not to ventilate their grievances in the press pending the proceedings, is sound in principle but needs to be qualified. What if the Chief Minister of Karnataka, S.M. Krishna, had spoken on the Alamatti dam, which exercised his State in the Assembly and the press had reported the speech? Neither he nor the press could have been hauled up.

Wildlife

The sarus crane: Walking tall in the wetlands of north India

N. Shiva Kumar conservation

Binoculars go hand in hand with birdwatching, but I do not need them to see the sarus crane, the world’s tallest flying bird. My camera is able to capture the essence of this regal creature that saunters with aplomb. On June 21, 1999, during the first national survey of sarus cranes, which was called “The Collaborative Sarus Crane Count”, I eagerly gazed into the grasslands of Mathura district in Uttar Pradesh to catch a glimpse of the bird’s bobbing red head above the grass line as I drove my 4×4 vehicle tentatively over rutted fields. A sarus crane, which stood nearly six feet (1.8 metres) tall, was, with a measured gait and an elegant attitude, pecking for its food. Sometimes it stretched its imposing wings, measuring eight feet (2.4 m), while foraging for food in the grass growing next to rice fields.

Before daybreak, on that longest day of the year in June, I had driven 200 kilometres from Delhi. Once out of the bustling capital, I drove along National Highway 2, the erstwhile Grand Trunk Road, which was flanked by cultivated fields. I had come prepared to spend a full day pursuing sarus cranes. My target was to provide photographic evidence of the cranes by scrutinising the key areas of the 3,330 square km of Mathura district as I was acquainted with the lay of the land.

First encounter

The first time I saw the splendid sarus crane was in 1987 at the 29 sq km Bharatpur Bird Sanctuary (now the Keoladeo National Park) in Rajasthan: two pairs were walking nonchalantly with feral cattle at the Kadamb-Kunj marshlands. It is not unusual to be smitten with a bird that shows a distinct behaviour, for example, the boisterous baya weaver bird in the breeding season or the collared falconet, a diminutive raptor, stalking a Himalayan bulbul in mid-air. Similarly, it is a pleasure to watch a sarus crane love-pair standing side by side, grooming or partaking in silent gossip. They even utter guttural calls in unison that shatter the silence of the landscape to reassure themselves of their mated status. Since that first encounter three decades ago, the sarus crane has been my muse.

Recently, I decided to indulge my passion for birding and visit the Surajpur Bird Sanctuary in Greater Noida and the Dhanauri wetlands in GautamBuddha Nagar district, Uttar Pradesh. They are situated about 20 km and 52 km respectively from my residence in Noida in the National Capital Region. The sarus crane happens to be the State bird of Uttar Pradesh as 70 per cent of the sarus crane population in India is found in the State. Interestingly, Uttar Pradesh is densely populated with about 23 crore humans and intensely farmed, and yet is a perfect home to the sarus crane. The mighty perennial river Ganga with multiple tributaries passes through the entire geography of Uttar Pradesh and keeps the terrain naturally well irrigated. These waterways continuously refresh and preserve wetlands even though cultivation has led to the proliferation of mosaics of marshy stretches. These favourable conditions have given over 300 species of aquatic birds, particularly the dominating sarus cranes, a geographical advantage for feeding, breeding and brooding.

B.C. Choudhury, a wildlife specialist, formerly with the Wildlife Institute of India (WII), spearheaded the first three national sarus surveys, or counts, two decades ago, that is, in 1999, 2000 and 2001. He explains that the aim was to research the ecology of the sarus crane, obtain data about the bird on a national level, understand its population dynamics and provide the necessary baseline data for the conservation of its habitat. Countrywide information on the sarus crane was needed to involve people from all walks of life both in the preservation of the species and in spreading awareness. Although annual counts have been carried out at the Bharatpur Bird Sanctuary since the 1980s, nationwide quantitative data were unavailable. Regrettably, the WII’s annual sarus crane count project became defunct after three surveys for lack of government funding.

Because the sarus crane species has the habit of bonding and pairing for life, it became a symbol of affection, love and fertility, and this led to it being protected in Uttar Pradesh. These monogamous attributes have safeguarded the cranes. In the three national surveys the WII and associated organisations carried out, they found that the involvement of States and dedicated volunteers were essential to arrive at a realistic sarus status in the country. The surveys clearly showed that Uttar Pradesh hosted the majority of the population of this species in India but invariably with a spillover into neighbouring wetlands in Bihar, Madhya Pradesh and Rajasthan. When the Uttar Pradesh Forest Department conducted its first State-wide sarus count on June 20, 2010, it found 12,246 flourishing individuals. A survey the Forest Department carried out in 2018 found about 16,000 plus sarus cranes. It also found that the bird was evidently evolving a preference for agricultural and rural landscapes. With no comprehensive survey of sarus cranes having been conducted in recent years at the national level, ornithologists have guessed that the countrywide sarus population is around 25,000.

However, in later years, the WII’s national assessments have provided ample impetus and credibility for future scientific and systematic surveys. The WII encouraged a few States to conduct sarus counts. Local non-governmental organisations were invited to participate in sarus surveillance as no special equipment, not even binoculars or spotting scopes, was required to see these big birds. Similarly, the Zoological Survey of India conducted a rapid study-survey in 2006-07 in a dozen districts of Uttar Pradesh and found 603 sarus cranes. The highlight was the discovery of a single flock of over 100 cranes in Chamarpura village in Mainpuri district on February 8, 2006. In 2007-08, 30 village sarus protection groups conducted a survey in Kota, Bundi and Baran districts of Rajasthan covering 95 wetlands with the help of the Rufford Small Grants Foundation, United Kingdom. Choudhury motivated and monitored this assessment too. The number of sarus cranes was estimated at 60. I was fortunate enough to be able to accompany Choudhury on one of his field visits to a village near Kota as I happened to be watching tigers in the vicinity at the time, in the Ranthambhore National Park.

The Indian sarus is an omnivorous wetland wader and one of the largest of the 15 species of cranes in the world. Its plumage is light grey to pale purple and its long legs are red; it has a light green skin crown while the rest of its head and upper neck are covered with red skin and its ear is enhanced by a small area of greyish feathers. This colouring helps the sarus crane merge into the background.

Since ancient times in India, sarus cranes have been known not only for their extreme fidelity but also for their dramatic dance rituals performed before and during the mating and nesting season. Sarus cranes can be found painted on the pages of Akbarnama, or Book of Akbar, which is the official chronicle of the reign of Akbar, the third Mughal emperor (1556-1605).

At present, there are three global populations of the sarus crane thriving independently: northern Indian, which is the largest; South-East Asian; and northern Australian. Sarus cranes have been more or less decimated in the countries neighbouring India and are surviving by the skin of their teeth in India, explains K.S. Gopi Sundar of the International Crane foundation, who is based in India.

After participating in the WII’s first national sarus survey, my interest in the sarus crane grew by leaps and bounds, and I cherished the sightings of the stately bird on my numerous random countryside twitcher trips. For instance, in Bera, Rajasthan, on the rocky terrain along the Jawai river, I saw two pairs of sarus cranes jostling for space with flamingos. While travelling by train or road on several occasions along National Highway 2 near Palwal in Haryana, I have seen sarus cranes ambling along in cultivated fields. The Sultanpur and Bhindawas bird sanctuaries in Haryana have resident sarus cranes that breed infrequently.

On March 7, just before the lockdown, while travelling towards Nal Sarovar Lake from Ahmedabad, I saw a family of four and a group of six on the roadside. At present, even during the lockdown, my preferred getaway is a trip to the Dhanauri wetlands, which the ardent birder Anand Arya discovered in 2014. He has regularly recorded over a dozen, and even up to 100, sarus cranes at these wetlands over the past seven years. He is now persistently working for protection for these wetlands and to get the area declared a sarus sanctuary. However, in all my trips to Dhanauri, I have yet to encounter more than 17 sarus specimens in a single day and definitely hope to see a more prominent congregation in the days to come.

My finest encounter of a sarus pair, undoubtedly, was in the winter of 2002, at my favourite destination, the Bharatpur Bird Sanctuary. That particular day in February was cold and foggy and I could literally see nothing beyond my nose. But my favourite cycle rickshaw wallah, Raju, with licence plate number 7, had his bearings. “Let’s hurry up, sir, we may have an exceptional sighting of the white crane at close quarters,” he said. He cycled 4 km to reach the spot, and at the edge of the mud-bund, we could clearly hear the commotion of the cranes. Still nothing was visible in the misty morning. Braving the chill, we sat on the cold grassy ground for half an hour, though it seemed like ages. As the mist vaporised like magic, there was an extraordinary sighting of an Indian sarus crane pair fiercely protesting against a Siberian crane couple. The vocalisation and open wing-flapping persisted until the Indian pair succeeded in shunting the Siberian pair from their patch of peat bog. I was just about 70 feet away from the birds and another birder-cum-photographer, who had arrived earlier, was busy shooting.

It was an extraordinary encounter, but alas, that was to be the last sighting of Siberian cranes in India as they never came back to the country and are presumed extinct in India. Will the non-migratory sarus crane face the same fate or will it manage to flourish in the wetlands and rice fields of the Indian landscape?

N. Shiva Kumar is an independent journalist and photographer specialising in wilderness and travel.

Profile

Fearless fighter

Divya Trivedi cover-story

The defiance of Prashant Bhushan in the contempt of court proceedings against him by the Supreme Court will go down in history as a record of a lawyer’s conviction against the might of the highest echelons of power. His spirited defence of his right to hold a bona fide opinion, his refusal to apologise for it, and his cheerful acceptance of its legal consequences have also provided the much-needed boost to the spirit of freedom of speech in a country beleaguered by intolerance.

His detractors say that he loves nothing more than a good fight and even thrives on it. This August, he proved his critics correct by showing that he will not be cowed down by intimidation.

Hardly a stranger to controversy, Prashant Bhushan, 63, is one of the brightest lawyers of his generation and has a passion for human rights. The son of Shanti Bhushan, a former Law Minister in Morarji Desai’s Cabinet, Prashant Bhushan had a formidable example to follow. Shanti Bhushan was well respected across the legal fraternity and was best known for going head-to-head with Indira Gandhi on behalf of Raj Narain who challenged her election from Rae Bareli, which got annulled. Prashant Bhushan, a student at the time, wrote a first-hand account of the court hearings in the book The Case that Shook India.

From the very beginning, he showed great promise and a tendency to go against the grain. He left a course in mechanical engineering at Indian Institute of Technology Madras and then a philosophy course at Princeton University to do a law course from Allahabad University. Over the years, he built a reputation for himself as an effective public interest litigant, often filing public interest litigation (PIL) petitions through the Centre for Public Interest Litigation (CPIL), an organisation founded in the 1980s by his father and V.M. Tarkunde, often called the father of the civil liberties movement of India.

In the courtroom, he has an imposing presence and his booming voice makes the judges sit up and take notice. His activism and intervention have shaped public policy and led to the creation and downfall of political parties and governments. His portfolio has high-profile cases including the Narmada Bachao Andolan; the Bhopal gas tragedy; the 1984 riot cases that he filed as a member of the People’s Union for Civil Liberties(PUCL); the Bofors case; the Enron case; the Panna Mukta Oilfields case; the Niira Radia tapes case; the PIL over the appointment of P.J. Thomas as Central Vigilance Commissioner; the Mauritius Double Taxation case; the PIL over reservation for Dalit Christians and Muslims; and the PIL over alleged irregularities in the Delhi Judicial Examination Services.

He has intervened in cases relating to the environment, proper implementation of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), judicial reforms, guidelines on police encounters, genetically modified crops, and the demand to bring the Chief Justice of India’s office under the Right To Information Act. He pursued the 2G spectrum case along with Subramanian Swamy, which sowed the seeds of a moral and electoral defeat for the Congress-led United Progressive Alliance (UPA) government. He often did cases pro bono and believed that lawyers should not charge fees for PIL petitions.

One of his more recent interventions was a PIL petition in the apex court asking for the transfer of money collected for the coronavirus pandemic under the PM CARES Fund to the National Disaster Response Fund.

In 2016, a Supreme Court Bbnch comprising justices T.S. Thakur, A.K. Sikri and R. Banumathi questioned the credentials of the CPIL and wondered how filing PIL petitions could be the sole activity of a non-governmental organisation (NGO) or a professional body.

Prashant Bhushan’s career is closely linked with the history of PIL in India, a subject on which Rajeev Dhavan, his representative in the contempt case, has written extensively. Dhavan has traced how, from being hailed as a “silent revolution” to being perceived as a “people’s court”, “true PIL” carried with it a “promise of liberation” for the disadvantaged.

“But it soon transcended its earlier self-imposed limitation of considering and enlarging the cause of the disadvantaged. It was appropriated in the service of a range of public causes including the manner in which High Court judges could be transferred and the corruption of politicians and, later, judges. Political use of the new PIL was not far off as individuals (ostensibly acting in the public interest) sought to squash the international investigation of the Bofors scandal (in which, allegedly, the late Prime Minister Rajiv Gandhi was involved) or the expulsion of politicians from the legislature. PIL has not quite lost its edge. It has simply grown entropically. If it was created to discipline and ‘conscientise’ the system of governance, forces in civil and political society have appropriated it in hugely diverse ways. PIL was randomly appropriated to serve the diverse demands of the rich and the poor, the social activist and the party politician, the genuinely interested reformist and the socially fraudulent,” Rajeev wrote in the Journal of the Indian Law Institute in 1994.

PIL as a tool

Nevertheless, Prashant Bhushan skilfully used the tool of PIL to intercede on behalf of the man in the street and the powerful with the justice system. In both roles, he came across as not a bleeding heart liberal but a shrewd interpreter of the law for the benefit of his client and cause.

He often stuck his neck out and took principled stands. For instance, in 2014, he declined to name the whistleblower who disclosed the alleged interference by Central Bureau of Investigation (CBI) Director Ranjit Sinha in the 2G investigation.

Prashant Bhushan founded the Campaign for Judicial Accountability & Judicial Reforms (CJAR), which often found itself in the midst of court-room dramas. In 2017, the CJAR filed a petition asking for an investigation into allegations of corruption that reached the corridors of the apex court in a case pertaining to a medical college in Lucknow. In the course of the hearing, standing before the then Chief Justice of India (CJI) Dipak Misra, a fearless Prashant Bhushan asked for the recusal of the CJI as the allegations in the first information report (FIR) were against him. When the CJI remarked that his comment amounted to contempt, PrashantBhushan told the CJI to go ahead and issue a contempt notice, but the CJI replied that he was not worth it.

This is not Prashant Bhushan’s first brush with contempt of court. In 2001, he was accused of contempt along with writer Arundhati Roy and activist Medha Patkar. In his response, he said: “I would like to say at the outset that I am amazed by the fact that such a ridiculously false and malicious contempt petition should be filed by persons who call themselves lawyers. I am however more pained by the fact that such a petition should have been entertained by this court which should have seen the falsity of the allegations made against me from the nature of the allegations and the recklessness with which they have been made.”

His judicial activism has led him to make several remarks on the judiciary in the past. Take, for instance, his articles on judicial accountability that appeared in leading newspapers and journals. In a 2009 article that appeared in Economic and Political Weekly, he wrote: “It is clear from the recent record of the higher judiciary that the imperative of upholding civil liberties, socio-economic rights, and environmental protection has been subordinated to agendas such as the ‘war on terror’, ‘development’ and satisfying corporate interests. Far from remaining faithful to the motives that resulted in the institution of public interest litigation, the Supreme Court has tended to act against the interests of the socio-economically backward.”

In 2011, Shanti Bhushan and Prashant Bhushan put their weight behind the India Against Corruption (IAC) movement led by Anna Hazare that was fighting for a strong Lokpal Bill. Later, the platform led to the creation of the Aam Aadmi Party (AAP) led by Arvind Kejriwal. The Bhushans had to weather many storms as part of the campaign. It was alleged that Shanti Bhushan and his son Jayant Bhushan got two farm plots from the then Uttar Pradesh Chief Minister Mayawati from her discretionary quota. The Bhushans denied the allegations and in their defence said that they were fighting cases against Mayawati and the question of obtaining favours from her did not arise.

In 2015, Prashant Bhushan and Yogendra Yadav were unceremoniously removed from the AAP because they wereblamed for plotting against the AAP in the Delhi Assembly elections. The two formed Swaraj Abhiyan, a socio-political organisation. Prashant Bhushan admitted later that Anna Hazare and the IAC movement were used by the right wing. In a tweet in 2018, he said: “Modi needed Anna only to discredit the Congress and climb to power using his movement. He has no use for Anna now that he is in power. He has jettisoned the Lokpal, not notified the whistle blower law, appointed corrupt people to the CVC and the CBI, and escorted various scamsters out of India.”

In 2011, Prashant Bhushan was attacked by Bhagat Singh Kranti Sena and Shri Ram Sene activists for his statements on Kashmir that supported a referendum and the withdrawal of the armed forces from the valley. Despite threats by the political parties, he stood by his comments just as he is standing firm before the Supreme Court today.

Interview with Justice V. Gopala Gowda.

Justice V. Gopala Gowda: Constructive dissent is the bedrock of a healthy democracy

T.K. Rajalakshmi cover-story

The surge of support across the legal spectrum for Prashant Bhushan after he was convicted on charges of contempt by the Supreme Court has been unprecedented.

While several legal luminaries and eminent individuals were shocked that the apex Court could convict an individual who had built his legal career almost entirely by raising issues of public interest, they have been concerned in equal measure about the larger implications of the criminal law of contempt itself.

At least 12 eminent judges along with several members of civil society issued a statement in which they said that the criticism by the senior member of the Bar should be used as an opportunity to introspect and strengthen the institution.

Justice V. Gopala Gowda, a former Supreme Court judge who has earned the sobriquet of being a ‘people’s judge’ and a ‘judge with a heart’, was among the 12 judges critical of the Supreme Court’s conviction of Prashant Bhushan.

Justice Gowda was Chief Justice of the Orissa High Court and a former judge of the High Court of Karnataka.

In this interview to Frontline, Justice Gowda says that the Contempt of Courts Act, 1971, needed to be amended to prevent potential judicial excesses. Excerpts:

The Law Commission of India said in its report on the Contempt of Courts Act, 1971, that amending the definition of contempt would reduce the overall impact of the law and lessen the respect that people have for courts and their functioning. Do you agree with this viewpoint or is it redundant in some ways?

The Contempt of Courts Act, 1971, is not just a colonial relic. The Constitution of India under Article 215 and Article 129 inherently empowers the High Courts and the Supreme Court of India to punish for their contempt. The Act, in fact, gives flesh and spine to the expansive constitutional powers of the courts to punish contumacious conduct by stipulating conditions and qualifications to classify any act as contumacious or otherwise.

However, I do believe that the 1971 Act needs certain amendments to prevent potential judicial excesses. Perhaps, amendments akin to those to the Indian Penal Code, 1860, [IPC] under the Criminal Law (Amendment) Act, 2013, would be ideal to create the perfect balance in the specificity-generality continuum.

The Criminal Law (Amendment) Act, 2013, expanded the scope of Section 354 of the IPC that penalises assault or criminal force on a woman with intent to outrage her modesty. ‘Outrage of modesty’ is a nebulous standard that has been subject to judicial subjectivity and inconsistent interpretational discretion. The 2013 Amendment added Sections 354A, 354B, 354C and 354D that included specific definitions of sexual harassment, stalking, voyeurism, etc., that made the law a lot more specific and precise while simultaneously reducing the scope and possibility of miscarriage of justice from judicial subjectivity and/or abuse of discretion.

The wide scope of the words ‘scandalising the court’ under Section 2(c)(i) of the 1971 Act can also be crystallised and explicated likewise. In fact, appropriate amendments to the 1971 Act will increase the overall effectiveness of the law and reinstate the faith of the people in Courts and their functioning, quite contrary to what has been observed.

There has also been a debate on whether the act of contempt should be confined only to cover civil acts of contempt, that is, instances of wilful disobedience of the court. Is this debate germane to the present context? A much larger number of civil contempt cases, as compared with criminal contempt cases, are pending in High Courts and the Supreme Court. What does this phenomenon indicate?

The numbers say it all. A recent study shows that while around 96,993 cases of civil contempt are pending before the Supreme Court and the various High Courts across the country, only around 583 cases of criminal contempt were pending consideration.

The phenomenon indicates a general reluctance and abundant restraint exercised by Courts of Record in respect of initiating action against criminal contempt while primarily deploying the law to advance administration of justice and penalising civil contempt by wilful disobedience of solemn orders of courts of law.

Nevertheless, 583 is a significant number of cases, especially when seen in a relative context. The United Kingdom, in comparison, did not have a single prosecution of criminal contempt for ‘scandalising the court’ since the year 1931. In fact, this was one of the reasons why England did away with the law in 2013.

As seen in this context, it is deducible that Indian courts have used/have had the occasion to use their contempt powers far more frequently and such powers must be exercised with restraint and responsibility with a view to striking a harmonious balance with the fundamental right to freedom of expression guaranteed under Article 19 of the Constitution.

Does having it on the statute books actually inspire public respect or confidence in the judiciary or does the Damocles’ sword of contempt impede free speech and expression as guaranteed under the Constitution?

Constructive dissent is the bedrock of a healthy democracy. It must be celebrated and protected. Far from inspiring public confidence in the judiciary, an enforced silence by such draconian laws with colonial origins shakes the very foundation of our democracy and defeats the celebrated values of liberty and equality at the core of our constitutional ethos. It could possibly evoke ill-will, resentment and suspicion among the people and alienate the judiciary.

It is apposite to reminisce the words of Lord Denning in this context; “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

Therefore, the use of contempt powers to bludgeon criticism and have a chilling effect on the citizenry does not bode well for a constitutional democracy like India.

Is there a model of the contempt law anywhere in the world where the dignity of the court is also preserved and at the same time it is not weaponised against the right to free speech and expression?

Diverse legal systems around the world have a contempt law in place to penalise both civil and criminal contempt of court. As a common law country, we inherited the current contempt law from the legal system of the U.K.. Its history purportedly dates back to the time when judges were deemed delegates of the Queen and an affront to a judge was deemed an affront of the Queen and, therefore, contemptuous.

Interestingly, the U.K. bid good riddance to criminal contempt by ‘scandalising the court’ in 2013 as it had fallen to disuse. The U.K. Commission observed in that context that there were other penal laws that covered publications and communications that might amount to ‘scandalising the court’ in addition to a civil action for defamation.

The IPC, the Information Technology Act and other laws have stringent provisions to cover such malicious publications/communications. India can augment its current model for better clarity or follow suit and bid good riddance to criminal contempt by ‘scandalising the court’ altogether.

Recently, a member of the Bar made very scathing remarks against a very reputable member of the judiciary for his observations on Supreme Court in the migrant workers’ issue. The apex court took scant notice of this. It was suggested that the member of the Bar was in contempt but the contempt law was not applied to him. Is the danger of a selective and arbitrary application of the contempt law inherent in the law itself?

One of the founding fathers of our Constitution, Dr B.R. Ambedkar, once remarked that a Constitution is only as good as those who make it work. In his seminal speech that is now renowned as ‘the Grammar of Anarchy’, he said: “Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution.”

The same principle applies to the contempt law in discussion as well. A knife in dangerous hands can kill. A knife in dexterous hands can save a life. The danger of selective and arbitrary application is inherent in the various stakeholders—judges, lawyers, media personnel and citizens—who make it work and not in the law itself.

However, there is no gainsaying the fact that the law needs certain appropriate amendments as discussed above.

Some clauses in Section 13 of the Contempt of Courts Act allow truth as a defence if it were in public interest and bona fide. Do you think courts give enough opportunity to those charged with contempt to establish the veracity or truthfulness of the act? Was Prashant Bhushan given this opportunity?

The law on criminal contempt as it prevails in the statute book today is ostensibly self-serving by its inherent nature. The procedure prescribed is far from the rigour required to prove any other criminal charge: ‘beyond reasonable doubt’.

The procedural safeguards that uphold the dictum of ‘innocent until proven guilty’ as in other criminal trials are woefully absent in the case of criminal contempt where the so-called opportunity of being heard that is accorded to an alleged contemnor is, more often than not, a mere smokescreen.

In fact, there is no semblance of a trial in determining the guilt of the alleged contemnor.

Various reports and the statement of Mr Bhushan reveal that the latter was not even supplied with a copy of the complaint on the basis of which the suo motu criminal contempt proceedings were initiated against him.

The apex Court judgment does not specifically address the pointed averments made by Mr Bhushan in his reply affidavit or the submissions made by the learned senior counsel appearing on behalf of Mr Bhushan. Prima facie, it appears that the modus operandi of the proceedings strike at the root of the principles of natural justice.

Can two tweets by Prashant Bhushan shake the foundations of law and bring the administration of justice into disrepute? What is it exactly that brings the administration of justice into disrepute? Is freedom of speech and expression not an integral component of the processes involving and leading to the administration of justice?

Two tweets cannot and have not shaken the foundations of the law by bringing the administration of justice into disrepute. The reaction to the two tweets in the form of a suo motu criminal contempt proceeding initiated and adjudicated in a record time span with apparent procedural lapses has not only shaken the foundations of the law bringing the administration of justice to disrepute but has also accorded the two tweets, (which would have, otherwise been liked, disliked, shared and forgotten) a cult status.

In a country of around 130 crore (latest estimates), Twitter users approximately constitute an insignificant minority of around 3.4 crore and Mr Bhushan has around 16 lakh followers (it is impossible to tell as to how many of these are bots/duplicate accounts, etc.).

As a consequence of the debate that has ensued after the suo motu criminal contempt proceeding initiated against Mr Bhushan, numerous national and regional newspapers, print and digital media platforms, television channels, social media exchanges are adrift in a sea of analyses, opinions and clinical dissection of the tweets and the entire saga that ensued.

This has hardly done any good to the public image and perception of the highest echelons of our judiciary and the administration of justice. The exalted norms of judicial ethics and the significance of a dignified silence are well encapsulated in the words of Justice Krishna Iyer in respect of the contempt jurisdiction on how judges must not dignify contumacious conduct even in the face of distortions and contortions by a reaction. A judge must instead “deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude”. Freedom of speech and expression guaranteed under the Constitution is sacrosanct.

The jurisprudence on free speech in the history of the Supreme Court is rich and steadfast. Contempt jurisprudence must necessarily be informed by the same and not head in the opposite direction.

The apex Court is the sentinel of our constitutional democracy and the final arbiter of the Constitution. With such great power comes great responsibility.

Interview with Justice Madan Lokur

Justice Madan B. Lokur: Respect is earned and cannot be forced by law

T.K. Rajalakshmi cover-story

The conviction of the advocate Prashant Bhushan by the Supreme Court on charges of criminal contempt has evoked a wide range of reactions among eminent jurists and members of the Bar. About 3,000 eminent persons from all walks of life, including 12 former judges, issued a statement in support of Prashant Bhushan. Justice Madan B. Lokur was one of them.

An outspoken critic of the judiciary and its functioning as well as government policies, Justice Lokur is at present a judge in the Supreme Court of Fiji. A former judge of the Supreme Court of India, he was also Chief Justice of the Andhra Pradesh and Gauhati High Courts. He was one of the four Supreme Court judges who held an unprecedented press conference in January 2018 highlighting the infirmities in the functioning of the higher judiciary.

In this interview to Frontline he says the law of contempt should be confined to civil contempt only. According to him, there is no need for a separate law for criminal contempt, which should be abolished. Excerpts:

The Law Commission of India, in its report on the Contempt of Courts Act, 1971, said that amending the definition would reduce the overall impact of the law and lessen the respect that people have for courts and their functioning. Do you agree with this viewpoint?

It seems to me that this particular reference by the Law Commission is to the district courts and not to the constitutional courts, that is, the High Courts and the Supreme Court. The Law Commission earlier observed: “Thus, the suggestion to delete the provision relating to ‘criminal contempt’ inter alia ‘scandalising of courts’ will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions.”

In any event, I personally don’t think that amending the definition of contempt by deleting criminal contempt would reduce the overall impact of the law or the respect that people have for the courts and their functioning. Respect is earned and cannot be forced by law.

There has also been a debate on whether the act of contempt should be confined only to cover civil acts of contempt, that is, instances of wilful disobedience of the court. Is this debate relevant? A far larger number of civil contempt cases are pending in High Courts and the Supreme Court than criminal contempt cases. What does this phenomenon indicate?

The contempt law should be confined to civil contempt only, that is, disobedience of an order of the Court or wilful breach of an undertaking given to the Court. The elements of criminal contempt can be dealt with under the existing criminal law quite effectively and so there is no need to have a separate law for criminal contempt.

It is true that cases of civil contempt are much, much more than cases of criminal contempt and it is for the justice delivery system to ensure that its orders are complied with. Quite often, disobedience of an order of the Court is by a government official. This is very sad and must be spotlighted by the Court. Senior officers in the government must take note of this so that orders passed by the Court are respected and implemented, otherwise we will sink into chaos.

Some countries, including the United Kingdom with whom we share common legal systems, have abolished the offence “of scandalising the court” in their contempt laws. In 2013, England did away with the law. Do you feel it is time India also did away with it?

The offence of scandalising the Court is really criminal contempt and I think we should abolish it, because this kind of an offence can be dealt with under the normal criminal law.

Does having it on the statute books actually inspire public respect or confidence in the judiciary or does the Damocles’ sword of contempt impede free speech and expression as guaranteed under the Constitution?

I really do not see how public respect or confidence in the judiciary can be maintained by a law on the statute books. Public respect or confidence can be earned and maintained only if orders of the Court are passed after a fair and impartial hearing and these orders are faithfully implemented and respected by all concerned, including government officers.

The law of criminal contempt can impede the fundamental right to free speech and expression. For example, if there is a criticism about the manner in which a case is being conducted, a court may take offence and describe that criticism as tending to interfere with or obstruct the administration of justice. This will obviously prevent criticism because it is impossible to know how the court will react to a particular critical comment.

Now, with the recent decision of the Supreme Court in the Prashant Bhushan contempt case, criticism may not be taken lightly, but may be dealt with with “an iron hand”.

Is there a model of the contempt law anywhere in the world where the dignity of the court is preserved and, at the same time, the law is not weaponised against the right to free speech and expression?

I have no idea about this and cannot give an answer. But it is unlikely that there will be some kind of a model law on contempt of court. There is however a U.N. Drug Control Programme Model Mutual Assistance in Criminal Matters Bill, 2000, which deals with contempt of court during criminal investigations.

In an explanatory statement, it is noted: “Contempt of court comprises an act of defiance of authority, of which failing to comply with a court order is one example. The punishment for contempt in most legal systems is a fine or committal to prison.”

Essentially, defiance of authority can be dealt with under the normal criminal law and failing to comply with a court order is civil contempt. If this distinction is maintained, a large part of the problem will be solved.

Recently, a member of the Bar made scathing remarks against you and other members of the judiciary following your observations on the Supreme Court in the migrant workers issue. The apex court took scant notice of this. It has been suggested that the member of the Bar was in contempt but the contempt law was not applied to him. Is the danger of a selective and arbitrary application of the contempt law inherent in the law itself?

There is a danger of a selective and arbitrary application of the contempt law in the sense that some judges may ignore an attempt to scandalise the court while others may not. The discretion is inherent and must be exercised judiciously by all judges and in a restrained manner, assuming for the purposes of this question that the law of criminal contempt continues to remain on the statute books.

Some clauses in Section 13 of the Contempt of Courts Act allow truth as a defence if it was in public interest and bona fide. Do you think courts give enough opportunity to those charged with contempt to establish the veracity or truthfulness of the act? And, in this particular case involving Prashant Bhushan, was adequate opportunity given to him?

My experience is that the courts do give enough opportunity to those charged with contempt of court to establish the veracity or truthfulness of the allegation. I have had occasion in the Supreme Court to deal with what appeared to be prima facie contempt of court but after hearing the alleged contemnor, we realised that there was some bona fide misunderstanding and the benefit of doubt was given to the alleged contemnor and the proceedings dropped. So, really it depends upon each case and each act complained of and no universal rule can be applied.

In the case of Prashant Bhushan, we need to first see whether any contempt was committed by him and then go into the veracity or truthfulness of the allegations. In my view he had only expressed his opinion and therefore there is no contempt committed by him. One may or may not agree with his opinion but surely he has a right to express that opinion.

Can two tweets of Prashant Bhushan shake the foundations of law and bring the administration of justice to disrepute? What is it exactly that brings the administration of justice into disrepute? Isn't freedom of speech and expression an integral component of the processes involving the administration of justice?

I don’t think the two tweets under consideration have brought the administration of justice into disrepute. It is difficult to accept that tweets can have such a massive impact as to shake the foundations of our justice delivery system. Our justice delivery system is set on firmer ground.

Contempt law&Free speech

Vague definition of criminal contempt

SANJAY HEGDE cover-story

In the corridors of the Supreme Court, a judicial humorist once mused, “What is the difference between a judge of the Supreme Court of India and God?” The answer was, “God doesn’t think he is a Justice of the Indian Supreme Court.” If the logic of the recent Supreme Court judgment where Prashant Bhushan is the alleged contemnor were to be extended to this unnamed gentleman, it is quite possible that he might be held guilty of criminal contempt.

Section 2(c) (i) of the Contempt of Courts Act defines criminal contempt as words or action that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. The words are of vast import, and on August 14 this year, the court convicted advocate Prashant Bhushan for two tweets that were in its judgment an “attempt to shake the very foundation of constitutional democracy” which “has to be dealt with an iron hand”.

The first tweet adjudged as contemptuous reads as follows: “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

The second tweet reads: “When historians in the future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

The first tweet, which referred to the Chief Justice sitting on an expensive motorcycle, was not held to be contemptuous. The court notes in para 62 that “This part of the tweet could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI.” Despite making this distinction, the overall impact seemed to have been taken into account when the court ruled: “The said tweet is capable of giving an impression to a layman that the CJI is enjoying his ride on a motorbike worth Rs.50 lakh belonging to a BJP leader, at a time when he has kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice.”

As far as the second tweet is concerned, the court says in para 67: “The impression which the said tweet tends to give to an ordinary citizen is, that when the historians in future look back, the impression they will get is, that in the last six years the democracy has been destroyed in India without even a formal emergency and that the Supreme Court had a particular role in the said destruction and the last four Chief Justices of India had more particular role in the said destruction.”

It further holds: “It is clear, that the criticism is against the entire Supreme Court and the last four CJIs. The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India. The impression that the said tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it.”

The court says: “We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.”

In the light of the court’s ruling that Prashant Bhushan’s tweets were an “attempt to shake the very foundation of constitutional democracy” which “has to be dealt with an iron hand”, it may be safe to define the offence of criminal contempt under Section 2(c) (i) of the Contempt of Courts Act as anything that angers or infuriates an Indian judge just sufficiently enough for the judge to rule that it “ scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. Prashant Bhushan now joins E.M.S. Namboodripad and Arundhati Roy in a list of public personalities whose speeches, writings and tweets have so scandalised the nation’s highest courts that the courts have felt compelled to restore their authority by writing judgments of conviction. How exactly is a court scandalised? Conversely, how is a citizen to know that he has not scandalised a court? Let us start from the beginnings of the laws of Criminal Contempt of Court.

The Origin of Contempt Jurisdiction

The power to punish for contempt has its origins in English common law. Contempt jurisdiction in England was originally limited to “contempt in the face of the court”. This is concerned with such behaviour in the courtroom, or in its vicinity, which interfered with the proper administration of justice. Contempt power was also exercised to punish parties who were guilty of disobeying court orders.

The phrase “scandalising the court” is incapable of precise definition. However, precedent shows that the offence is committed when “free comment, becomes too free in the opinion of a judge”. The phrase was first used in the 1742 case of Roach vs Garvan. In Roach, Lord Hardwicke convicted an editor for impugning the characters of witnesses. An argument that such a matter was best left to a libel suit was rejected. Hardwicke stated that courts must punish publications that result in “prejudicing mankind against persons before the case is heard” and that they must do so to “keep the streams of justice clear and pure”.

The law on scandalising the court as it currently exists has its origins in the 1765 case of Rex vs Almon. A judgment was never delivered in the case itself. Justice Wilmot’s opinion in the case was published many years later by his son in 1802. It forms the foundation of the modern doctrine of contempt for scandalising the court.

Wilmot argued that the purpose of contempt law was “to keep a blaze of glory around judges”. He observed: “The arraignment of the justice of the judges is arraigning the King’s justice.” It “excites in the minds of the people a general dissatisfaction with all judicial determinations… and whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice”. He stated that contempt law was necessary “not for the sake of the judges as private individuals, but because they are the channels by which the King’s justice is conveyed to the people”.

For more than 100 years thereafter, contempt power was almost never resorted to in England. Despite it being rarely invoked in England/United Kingdom itself, prosecutions for contempt continued in the colonies. In India, Devdas Gandhi, the youngest son of Mahatma Gandhi and the editor of Hindustan Times, was imprisoned for contempt in view of certain articles that had been published in the paper. He was fined Rs.1,000 or in default ordered to undergo a month's imprisonment. He refused to pay a fine. The Appellate Court refused a stay pending an appeal, and Gandhi had already served his prison sentence by the time his appeal was allowed.

Editors in some other colonies were luckier. In Ambard vs Attorney-General for Trinidad and Tobago, the court was concerned with an article in The Port of Spain Gazette. The article criticised the discrepancy between the sentences given in two apparently similar cases. It suggested that the discrepancy was due to human differences between the judges with regard to sentencing. Allowing the editor’s appeal to the Privy Council, Lord Atkin observed: “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

Abolition of Contempt by Scandalising the court in England

In 1968, after a gap of many years, English courts invoked their contempt jurisdiction. Quintin Hogg, a Member of Parliament (he would go on to become Lord Chancellor Hailsham) wrote an article in the magazine Punch, criticising a judgment of the Queen’s Bench Divisional Court. In his opinion for the Court of Appeal, Lord Denning declared that contempt jurisdiction would not be used to uphold the dignity of the courts. “That must rest on surer foundations,” wrote Denning. He went on to write that critics of judges must be mindful of the fact that the judges could not respond to their criticism and could vindicate themselves only through their conduct.

In 1974, the Phillimore Committee recommended reforms that significantly watered down the existing law on contempt in England. Eventually, the Law Commission of the United Kingdom recommended that the offence of scandalising the court be abolished. The offence was therefore abolished in 2013.

In India, however, the Constitution contains a provision listing laws relating to contempt of court as a reasonable restriction on the fundamental right of free speech and expression. The offence of “scandalising the court” had been given statutory basis through the Contempt of Courts Act of 1971.

The framers of our Constitution did not originally envisage contempt as a restriction on free speech. The interim report on fundamental rights (1947) contained no reference to contempt. The Draft Constitution of 1948 did not mention contempt either. An amendment introducing contempt as a restriction on free speech was introduced on October 17, 1949. It is relevant to note that the amendment was introduced during the 15th month of discussions in the Assembly, a month before the Constitution would eventually be adopted and a year after the free speech clause of the Constitution had been discussed, and to the minds of some members, finalised.

Introducing the amendment, T.T. Krishnamachari argued that the rationale of the amendment “….was to cover one category of what might be called lapses in the exercise of freedom of speech and expression, namely, a person might be speaking on a matter which is sub judice and thereby interfere with the administration of justice”. He further argued that it was never the intention of the drafting committee “to allow contempt of court to take place without any let or hindrance”. Krishnamachari added that the amendment did not extend the scope of limitations on free speech. It was only remedying a lacuna. He also argued that the power to punish for contempt was “a very necessary protection”.

Most members who entered the debate argued against the introduction of contempt as a restriction to free speech. The most trenchant opposition came from R.K. Sidhva, who argued that High Court judges were not infallible and that comment against judges was necessary in the interest of public life. He also pointed out the procedural anomaly in contempt trials stating that “the High Court judge is the prosecutor and he himself sits and decides cases in which he himself has felt that contempt of court has been committed”. Sidhva also questioned whether any other Constitution in the world provided for a provision on contempt. He argued that such a provision would put the “judge above everybody” and “make him a Super God”.

B. Dass protested against the last-minute change to fundamental rights and characterised it as “the tyranny of the drafting committee”. He also wondered if fundamental rights, which were passed by the house with “real solemnity” and “after great consideration”, could be changed overnight. Arguing against the provision itself, Dass stated that the power to punish for contempt would be used by “penniless lawyers who became judges to regulate and control affairs”.

The debates in the Constituent Assembly reveal that contempt as a restriction on free speech was originally envisaged for cases where speech was intended to unfairly influence the outcome of a sub-judice matter. However, early contempt jurisprudence shows that Indian courts regularly invoked contempt powers in cases concerning “scandalising the court”. The doctrine was given statutory basis through the Contempt of Courts Act, 1971, which holds that speech that “scandalises or tends to scandalise a court” amounts to contempt.

Contempt and the Courts of India

Over the years, various types of conduct and speech have been deemed to be contemptuous. This piece can only give a flavour of some of the cases. Perhaps the earliest instance of the Supreme Court taking action against what it perceived to be a contemptuous publication happened in 1952. The Times of India had published an article titled “A Disturbing Decision”. The piece criticised the Supreme Court for having ended the “dual system” of practice at the Bombay and Calcutta High Courts. It stated: “Politics and policies have no place in the pure region of the law” and implied that the court may have acted out of “extraneous considerations”. The court held that the imputation of improper motives to a judge had a “clear tendency to affect the dignity and prestige of the court” and found the editors to be guilty of contempt.

Another notable instance of contempt arose in November 1967. In a speech, E.M.S. Namboodiripad, the former Chief Minister of Kerala, accused Indian judges of being guided by class interests and prejudice. He also argued that they decided cases in favour of the “well-dressed”, “pot-bellied, rich man” and that the law and the judiciary served the exploiting classes. The Kerala High Court found Namdoodiripad guilty of contempt and imposed a fine of Rs.1,000 on him. In appeal, the Supreme Court reduced the fine to Rs.50 but held that Namboodiripad was “guilty of a great calumny”. The court also held that contempt could be committed not only in respect of a particular judge, but also in respect of the entire judicial system.

In October 1969, the Supreme Court decided a service dispute in favour of the State of Uttar Pradesh and against one O.P. Gupta. Following the judgment, Gupta published a pamphlet inter alia stating that the judges had passed “a demonstrably dishonest judgment which cannot fail to show to any discerning person that he did so only to feed fat his prejudice and bias”. Some members of the Bar found him distributing these pamphlets in the court library and made a complaint of the same to the court. In March 1971, the Constitution Bench of the court found Gupta guilty of contempt, holding that an attack such as the one made would undermine the confidence of the public in the judiciary. The court held that the law of contempt was a reasonable restriction on the right of free speech. Later that year, Parliament enacted the Contempt of Courts Act, 1971, which includes Section 2 (c) (i) which has already been quoted.

Not all contempt proceedings have ended with a finding of guilt. P.N Dua vs P. Shiv Shankar concerned a case where Union Law Minister P. Shiv Shankar had made a speech stating that the Supreme Court was “composed of the elements from the elite class” and “had their unconcealed sympathy for the haves i.e. the Zamindars”. He also referred to the judges as “antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries”. The court held that Shiv Shankar was not guilty of contempt, though his speech was a “little intemperate”.

In Hari Singh Nagra vs Kapil Sibal, the court was seized of a publication, where Sibal had written that judges were corrupt and received “monetary benefits for judicial pronouncements”. He stated that they were guilty of “rendering blatantly dishonest judgments, kow-towing with political personalities and obviously favouring the government and thereby losing all sense of objectivity”. A petition seeking initiation of contempt proceedings was filed before the Supreme Court by some advocates of the Punjab and Haryana High Court. The court held that Sibal was not guilty of contempt. It observed that Sibal’s “message is nothing but concerns of a senior advocate who has practised long in this court who noticed that the public image of the legal community was its nadir”. The court went on to hold that “the article is an expression of opinion about an institutional pattern. The article by itself does not affect the administration of justice.”

In finding Sibal not guilty of contempt, the bench took into his account his standing at the Bar and the fact that he had articulated his concern about the institution. The same indulgence has not been shown to Prashant Bhushan. On August 20, the court insisted on granting him time to file an unqualified apology if he so desired.

At the time of going to press, Prashant Bhushan has not filed an apology. He has asserted: “I have made the statements bona fide and pleaded truths with full details, which have not been dealt with by the court. If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem.”

Whether Prashant Bhushan suffers a sentence of imprisonment or not after these proceedings is irrelevant. His case has told the country how limited its freedom of speech and expression is when speaking or writing about the highest judiciary in this country. It may be well argued that the definition of criminal contempt by scandalising a court is vague, overboard and likely to be struck down as unconstitutional, as was the case in Shreya Singhal, in which the Supreme Court struck down Section 66A of the Information Technology Act. However, this Section 2 (c) (i) has continued to be in the statute books for almost five decades and has been invoked by courts on multiple occasions. Power is delightful and absolute power is absolutely delightful.

In the 1964 case of Jacobellis vs Ohio, while defining hard-core pornography in the context of a film, Justice Potter-Stewart of the United States Supreme Court wrote: “I know it, when I see it and the motion picture involved in this case is not that.” Ever since, judicial humorists seized upon the phrase, “I know it when I see it” to define pornography as anything that sexually aroused a judge. In 1981, Justice Stewart commented, “In a way I regret having said what I said about obscenity—that’s going to be on my tombstone. When I remember all of the other solid words I’ve written, I regret a little bit that if I’ll be remembered at all I’ll be remembered for that particular phrase.”

The Prashant Bhushan judgment is, similarly, a case of “I know it when I see it”. Let history be the final judge of which side of the court, Bar or bench has increased or lowered its authority.

Sanjay Hegde is a Senior Advocate in the Supreme Court of India. He acknowledges research assistance for this article from Advocate Pranjal Kishore.

Social Issues

Reservation as a political imperative

Litigation and discussions about reservation policies are recurrent in Indian political discourse. More than 70 years after the adoption of the Constitution, one might ask: what is the point of reservation policies?

According to a view that questions the relevance of reservations, India is advancing towards becoming a casteless society. The policies of liberalisation and modernisation have weakened the hold of caste, and caste has been replaced by other markers of identity, such as class, which is the dominant feature through which one understands Indian society.

The invocation of class over caste is also recurrent in demands to have reservation, if at all, dependent on economic criteria alone. The recent 103rd constitutional amendment providing for reservation for economically weaker sections (EWS) is an expression of this view, although it retains a caste dimension by limiting EWS to the upper castes and excluding lower castes and Scheduled Tribes (S.T).

A version of this view argues that reservation, far from helping to reduce the power of caste, retains and strengthens caste divisions. According to this idea, reservation introduces a form of identity politics that makes caste visible, when the goal ought to be the eradication of caste. Making caste, or religion, a topic of discussion is “votebank politics” that divides Indians. This view presents the policy of reservation as a paradox: How can caste-sensitive reservation policies fight caste-sensitivity?

To solve this paradox, we should remember an integral part of the caste system. In Dr B.R. Ambedkar’s words, the caste system is not just a division of labour but a division of labourers. The caste system is divisive insofar as caste is a constant from one’s birth onwards. By virtue of birth, individuals are segregated and assigned in different professions. Endogamy assures that family and social life stay within a caste. The caste system thus ensures a system of segregation.

In Ambedkar’s time, the system worked much like the legal systems of segregation such as apartheid in South Africa and the Jim Crow laws in the American South. It is no coincidence that in both these systems, norms against intermarriage were in place and strictly enforced.

Persistence of caste

Some of the worst excesses of the caste system might have been reduced, but the system is nevertheless unsettlingly prevalent to this day. Data from the comprehensive 2011-12 India Human Development Survey (IHDS-II), which involved over 40,000 households, found that 27 per cent of all households admitted to practising untouchability, with a majority of Brahmin households admitting to it. Education seems to make little difference here; 24 per cent of households with a graduate as a member are still practising untouchability.

Intermarriage, Ambedkar’s solution to break caste, is rare. The same survey found that only 5 per cent of all marriages crossed the boundaries of caste. It should, therefore, be no surprise that India’s society still suffers from a de facto segregation based on caste.

The privileged parts of society are still largely devoid of Dalits and other oppressed castes. A 2019 study of Indian media published by Oxfam and Newslaundry, titled “Who tells our stories matters”, found such a pattern. At the time of the report, all leadership positions in Hindi television news channels were held by upper-caste people.

In a recent article in The Caravan, Namit Arora reports that 96 per cent of all the faculty at Indian Institute of Technology Kharagpur belonged to the upper castes, according to a 2018 response under the Right to Information Act, despite reservation policies.

It is clear that reservation does not introduce caste. Caste already exists in the form of a segregated society in which the top positions are reserved for those from upper castes. The plea against caste-based policies, therefore, fosters a silent caste system. Although caste is not talked about, it is is very much present in the selection of who belongs and who does not belong.

Reservation is imperative for social integration. The alleged paradox is, in fact, no paradox at all. Caste-sensitive policies are needed to break the otherwise silent segregation of Indian society. A casteless society can emerge only when this segregation is broken.

Democracy at stake

The segregation of Indian society is also a threat to democracy. Democracy is a form of self-governance among political equals, and mistrust between caste groups and a lack of understanding of one another threaten this practice. This is why Ambedkar said that genuine swaraj required the abolition of caste.

He brings this to bear while highlighting the value of fraternity. Fraternity is not possible in a segregated society in which castes live side by side instead of together. In Annihilation of Caste, he writes: “(T)here should be varied and free points of contact with other modes of association.... This is fraternity, which is only another name for democracy.”

Universities and institutions of public employment need to bring individuals from all castes together. Only then can they be genuine democratic institutions. Without reservation, this is not possible.

The de facto segregation of Indian society also limits and stifles the prospects of a better life for many people. The obstacles are myriad; some of them reflect the economic disadvantage that Dalits and Bahujans face. The poor state of the public education system virtually forces candidates aspiring for select institutions or public employment to seek private schooling or schools under the Central Board of School Education.

Others reflect the disadvantage of not possessing cultural capital. Command over the English language is a key advantage in access to most positions of privilege in Indian society, an advantage possessed by those groups that are educationally already advanced over many generations.

Lastly, the barriers to progress are social in the form of caste prejudice and caste discrimination, including untouchability.

Reservation, a component of equality

Those opposing caste-based reservation also make another argument, pointing to what they consider a second paradox. How can discrimination be fought with discrimination? The Constitution grants every Indian the equal protection of the laws and the right not to be discriminated against. Even if reservation policies serve the valuable purpose of integration and de-segregation, as well as the purpose of equalising opportunities for all, such policies are nevertheless objectionable if they violate this important right.

For a long time in India’s constitutional history, reservation was understood to be a necessary compromise with equality. This sentiment was conveyed in the Constituent Assembly debates and in various Supreme Court judgments.

But this understanding of reservation is puzzling. It admits that an injustice is done to those missing out on government jobs or university places because seats are reserved for members of backward castes. The state has failed to treat them as equals and discriminated against them. Why should we compromise the great value of equality? Why should the state depart from the idea that rights are universal, and that justice is due to everyone regardless of caste, colour, or creed?

The idea that reservation is a (necessary) aberration from equality is no longer the view of the Supreme Court. Back in the 1970s, the Supreme Court in N.M. Thomas (1975) ruled that Article 16(4), which allows the state to provide for reservation, is not an exception to equality but rather a facet of Article 16(1).

The article, the Court reasoned, is merely an empathic restatement of the fact that the Constitution’s equality code, Articles 14, 15, and 16, allows the state to make reasonable classifications. In deciding whom to select for public employment or university admission, the state needs to distinguish between candidates. Such classifications are innocuous when they are reasonable. In N.M. Thomas, the Court held that some caste classifications, like those inherent in reservation, are indeed reasonable.

Any doubt about this understanding of reservation should have been put to rest by the Supreme Court’s affirmation of this interpretation in Indra Sawhney (1992).

The Court said: “In earlier decisions rendered by the Court till sixties, Article 16(4) was held to be exception to Article 16(1). But from 1976 onwards it has been understood differently. Today, Article 16(1) and 16(4) are understood as part of one and same scheme directed towards promoting equality.”

Therefore, the judicial approach that reservation is an exception to equality is now replaced by the idea that it is a component of equality.

In Indra Sawhney, however, the Court said something more. It held that reservation should not exceed 50 per cent. The Court cited Ambedkar to say that reservation shall be confined “to a minority of seats”. Excessive reservation would breach the principle of equality of opportunity.

But this is curious. On what basis did the Court arrive at 50 per cent as the upper limit for reservation? Ambedkar’s reasoning, which the Court cited, was based on understanding reservation as an exception to equality that cannot be greater than the rule. But once we understand that reservation is not an exception to equality, then the basis for a 50 per cent limit disappears. Nevertheless, the limit was reiterated and followed by subsequent judgments (Nagaraj, 2006).

In addition, consider the following example: Assume that in a region, candidates from the upper castes dominate private employment given the widespread discrimination in the labour market. Most businesses are owned by members from such castes and most educational institutions are comprised of them. In these circumstances, the state decides to give 70 per cent reservation to Dalits and Other Backward Classes (OBCs) considering their abysmal representation in private employment and public sphere in general.

The state is satisfied that the underrepresentation of these castes is established and wants to provide for overrepresentation of Dalits and OBCs in public employment to balance their lower chances in the private sector. The result would be equal chances for employment for every caste. While this seems justified, this appears to violate the arbitrary 50 per cent ceiling limit set by the Court.

Not all caste classifications are alike

Understanding reservation as a component of equality means that some classifications based on caste, like those inherent in reservation, are constitutionally permissible while others, for example a rule that forbids Dalits from entering a government building, are not. To sum it up: not all caste classifications are alike.

But why is one way of treating people differently based on caste acceptable while others are not? The answer lies in the deep-rooted, structural caste inequality that pervades our society. People do not start on equal terms on a level playing field. The status quo is vastly unequal. Ambedkar emphasised this during the Constituent Assembly debates when he said: “We must begin by acknowledging the fact that there is a complete absence of two things in Indian society. One of these is equality.” (November 25, 1949)

What should the Constitution’s equality code mean in a country riddled with such a lack of equality? On a formal understanding of equality, the Constitution takes no note of this background inequality. It holds that equality of opportunity is satisfied when, for instance, a rural Dalit girl with no prior English education and an upper caste boy who went to an international school compete in an entrance test. In deciding that reservation is a facet of equality, the Supreme Court was wise in rejecting this idea.

Moving beyond formal equality means acknowledging the social context. It means looking at equality not in isolation but in connection with societal structures and inherent disadvantages that people face for being a woman or a Dalit.

From this perspective, it is clear why not all caste classifications are alike. Reservation challenges the caste system by integrating society across the boundaries of caste. It is designed to break the segregation that maintains the caste system and ultimately weaken the hold of caste in society.

In contrast, caste classifications that exclude Dalits are designed to subordinate Dalits and prevent them from attaining equal status in society. Such oppression is what the Constitution disapproves of, not the invocation of caste as such.

A fundamental right?

Reservation is certainly permissible under the Constitution. But the big question is whether there is a fundamental right to reservation. This question has dominated the recent constitutional discourse on the equality code.

In Mukesh Kumar vs State of Uttarakhand (2020), the court said that there is no fundamental right to reservation. 

The controversy arose because the State of Uttarakhand refused to gather data on the representation of Dalits in public service and failed to provide reservation to them. Critics of the judgment argued that the State would need to legally justify its refusal to provide reservation by citing adequate representation of Dalits in service.

In contrast, the State of Uttarakhand relied on the wording of the express provision, Article 16(4), and submitted that it was not bound under any duty to provide reservation.

Article 16(4) is worth extracting in full: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

The article states that “nothing shall prevent the State” from giving reservation. The plain meaning of the provision is clear: it allows the state to provide reservation but does not require the state to provide it mandatorily. The constitutional provision, unlike the mandatory provisions injuncting the state from discriminating, such as Article 15(1), is enabling in nature.

The Constitution does not mandate the state to provide reservation: it merely states that if the state chooses to make reservation, the parent provision will not prevent it from doing so.

This is the first problem with conceiving reservation as a fundamental right—that doing so will blur the distinction between two provisions of the Constitution which are contra-distinctly phrased.

When the Supreme Court held in Mukesh Kumar that the constitutional provisions do not confer the right to claim reservation and that the state could not be directed to provide reservation by the courts, it merely upheld a position of law faithful to the Constitution.

Here, it is helpful to make a comparison with the constitutional provision enabling the state to enact legislations of social reform and open access to temples, Article 25(2)(b). It is one of the clauses under the freedom of conscience and religion. Could one say that one has a right to have the state pass a social reform legislation? That simply does not follow. 

Rather, when the state passes such a social reform legislation, it cannot be said to necessarily offend the right to freedom of religion.

Remedy in courts?

In a criticism of the judgment in The Wire, law professor Kailash Jeenger argued that a policy like reservation must not be left to the mercy of the political executive. The implication of this argument is that reservation policies are in better hands with the courts. Given the history of reservation policies, this is doubtful at best.

Consider the complicated history of reservation in promotions. In 1992, in Indra Sawhney the Court limited the rights of Parliament and governments to make reservation policies. Reservation ought not apply to promotions, according to the Court. The Supreme Court cited, among others, reasons of administrative efficiency. This invocation is curious since it relies on a highly speculative account. The only comprehensive study on affirmative action and efficiency in the Indian context is the one about the Indian Railways.

A study by Ashwini Deshpande and Thomas Weisskopf, published in World Development, found that efficiency does not decrease with reservation policies. Rather, it found that a higher proportion of S.C/S.T employees in upper jobs improved performance.

While the Court was quick to judge against reservation in promotions without social scientific evidence, it was Parliament that brought in a constitutional amendment in 1995 to restore reservation in promotions.

Then, in M. Nagaraj (2006), the Supreme Court attached conditions to reservation in promotions and diluted the constitutional amendment. For example, the Court required the state to show the backwardness of the caste, even for Dalits, in spite of the abundance of social scientific works demonstrating its backwardness. This requirement was later dropped in Jarnail Singh vs Lacchmi Narain Gupta (2018).

By attaching further conditions like obtaining quantifiable data regarding inadequacy of representation, with variations from time to time, the Court narrowed the scope for reservation that Parliament evidently desired.

The logic of the Court is also in tension with the later statement in Mukesh Kumar that denying reservation is in the subjective satisfaction of the state. In other words, it is a political choice.

If providing reservation is a political choice, then what is the need for quantifiable data? The need for quantifiable data arises only if one believes that reservation is an exception to an important constitutional right. But this understanding of reservation was rightly abandoned by the Supreme Court long ago.

Reservation as a political project

The reliance on courts may, therefore, be misplaced. Conceiving of reservation as a political project does not diminish its significance. Reservation remains so with sound backing from constitutional values. Part IV of the Constitution deals with the Directive Principles of State Policy, which are essentially norms that must guide governance.

The Directive Principles, while not enforceable in court, emphasise the socialist character of the state. They must entrench state policy. They are important tools to conceptualise a welfare state. They are not antithetical to fundamental rights. These principles and rights need to supplement and complement each other as indicated in Kesavananda Bharati (1973) and Abu Kavur Bai (1983).

Article 38, for example, says that the state shall strive to minimise inequalities in income, status, facilities and opportunities, not only among individuals but also among groups.

Article 46 refers to the state obligation to promote the educational and economic interests of the weaker sections of the people, in particular the Scheduled Castes and the Scheduled Tribes.

The Preamble, which aids constitutional interpretation, likewise refers to a socialist state and socio-economic justice.

Article 340 of the Constitution provides for “appointment of a commission to investigate the conditions of backward classes.” Articles 341 and 342 contemplate a presidential notification enlisting S.Cs and S.Ts which Parliament alone has the authority to change; the Court or the executive cannot alter such entries. The entries are, therefore, final, but subject to future modifications by Parliament.

All of this highlights that it is incumbent upon the state to act and remedy the pernicious influence of caste. It is a demand of political justice that caste inequalities and the hierarchy of castes are weakened and that we move towards a casteless society.

The political project needs to broaden and look at various ways in which caste is reproduced and hierarchy is entrenched. Reservation is one component of this broader project. The comprehensiveness required for the schemes for upliftment of the downtrodden was explained in detail by S. Nagappa in the Constituent Assembly in 1949.

Earlier, on November 30, 1948, during the Assembly debate, H.N. Kunzru said that “the State might come to think that it had done its duty by these [backward] classes by making this provision [reservation]”. Kunzru’s warning appears almost prophetic.

For reservation to be truly transformative, it must be accompanied by a strong commitment to overcome the segregation of the caste system. Only then will Indians be able to live Ambedkar’s vision of fraternity, or, as he called it, democracy.

Kaleeswaram Raj and Thulasi K. Raj are lawyers at the Supreme Court, while Bastian Steuwer is a political philosopher at the London School of Economics.

When Gandhi said no

V. Venkatesan cover-story

In Re: Mohandas Karamchand Gandhi and Others, decided by a three-judge bench of the Bombay high court on March 12, 1920 (Coram: Amberson Barrington Marten, M.H.W. Hayward and A.M. Kajiji) has a lot of significance for contempt of court proceedings. In this case, Gandhi and Mahadev Haribhai Desai, editor and publisher of Young India, were arraigned as contemnors for publishing on August 6, 1919, a letter dated April 22, 1919 written by the District Judge of Ahmedabad (B.C. Kennedy) to the Registrar of Bombay High Court, with their comments. The gist of the charge was that the letter in question was a private official letter forming part of a pending case.

In his letter, Judge Kennedy submitted for the determination of the High Court the question of the lawyers of the Ahmedabad court who had signed the “Satyagraha Pledge” authored by Gandhi. The pledge, among other things, required the pleaders to refuse civilly to obey the Rowlatt Act, which was passed by the Imperial Legislative Council in Delhi on March 18, 1919, indefinitely extending the emergency measures of preventive indefinite detention, incarceration without trial and judicial review enacted in the Defence of India Act, 1915, during the First World War. It was the Rowlatt Act that brought Gandhi to the mainstream of Indian struggle for independence, and marked the beginning of the Gandhi era in Indian politics.

Kennedy’s letter prompted the High Court to issue notice to the Ahmedabad lawyers. In his comments on Kennedy’s letter, Gandhi wrote that Kennedy prejudged the issue, and made an impudent suggestion that the lawyers who took the pledge had committed a criminal breach of the law of the land. Gandhi concluded his article saying that “these traducers of civil resistance and civil resistors are becoming the instruments for propagating Bolshevism, that is, the spirit of lawlessness accompanied with violence, and that the Government of Burma, the Government of Punjab and the District Judge of Ahmedabad are all in their own way endeavouring forcibly to impose their will upon civil resisters, but that those who are trying to crush the spirit of civil resistance are but fanning the fire of Bolshevism”.

In his letter of October 22, 1919, to the High Court, Gandhi wrote: “In my humble opinion, I was within the rights of a journalist in publishing the letter in question and making comments thereon. I believed the letter to be of great public importance and one that called for public criticism.”

When the High Court Chief Justice asked Gandhi to publish an apology in the prescribed form, Gandhi refused to do so and stated that in publishing and commenting on the latter, he had performed a useful public duty at a time when there was great tension and when even the judiciary was being affected by the popular prejudice: but that he had no desire whatsoever to prejudge the issues which their Lordships had had to decide. Then, after referring to the honour of journalism and to his membership of the Bombay Bar and its traditions, Gandhi stated that in similar circumstances he would not act differently, and that he could not conscientiously offer any apology, and that, if that explanation was not considered sufficient, he would respectfully suffer the penalty.

Gandhi further stated: “I regret that I have not found it possible to accept the advice given by His Lordship the Chief Justice. Moreover, I have been unable to accept the advice because I do not consider that I have committed either a legal or a moral breach by publishing Mr. Kennedy’s letter or by commenting on the contents thereof. I am sure that this Honourable Court would not want me to tender an apology unless it be sincere and express regret for an action which I have held to be the privilege and duty of a journalist. I shall therefore cheerfully and respectfully accept the punishment that this Honourable Court may be pleased to impose upon me for the vindication of the majesty of law.” The publisher, Mahadeo Desai, the second contemnor, also offered to cheerfully and respectfully abide by any penalty that the court might be pleased to inflict on him.

After surveying the case law on the subject, the bench concluded that the publication of the letter by Gandhi was contempt of court, and that his comments on it were of intemperate and reprehensible character. “They prejudge the case and tend to undermine any decision which the High Court may come to at the trial”, the bench said, adding it amounted to “scurrilous abuse of the Judge as such”.

The bench reasoned that if tension and popular prejudice existed, as claimed by Gandhi, they would be increased rather than diminished by the abuse of the local judge, and that could not be the public duty of any good citizen.

In Paragraph 31, Judge Marten observed: “We have large powers and in appropriate cases can commit offenders to prison for such period as we think fit and can impose fines of such amount as we may judge right. But just as our powers are large, so ought to, I think, to use them with discretion and with moderation, remembering that the only object we have in view is to enforce the due administration of justice for the public benefit.”

Judge Hayward held that commenting on the letter amounted to “scandalising” Judge Kennedy. He also suggested that the respondents posed not as law-breakers but rather as passive resistors of the law. Therefore, he felt it would be sufficient to enunciate unmistakably the law in these matters, to severely reprimand them for their proceedings, and to warn them of the penalties imposable by the High Court.

 

Interview: Justice A.P. Shah

Justice A.P. Shah: Supreme Court comes across as an intolerant institution

Divya Trivedi cover-story

Justice A.P. Shah, former Chief Justice of the Delhi and Madras High Courts, weighed in on the contempt proceedings against Prashant Bhushan in an interview with Frontline. Not one to mince words, the Chairman of the 20th Law Commission of India said that the Supreme Court now appeared to see the world only through the executive gaze and in doing so was failing in its duty to protect fundamental rights.

Does holding Prashant Bhushan guilty of contempt over a couple of tweets amount to judicial overreach? Will this verdict have a ripple effect and rob young lawyers of the freedom to raise valid questions about the judiciary?

There is no doubt in my mind that with this decision, the Supreme Court has come across as an intolerant institution. It has effectively announced to the world that it is not open to any criticism. The more concerning aspect is how and why the court appears to be going after Mr Bhushan for these tweets.

The tweets in question are actually fairly trivial and inconsequential, which even the Supreme Court realises. This probably explains why the nine-year-old contempt case against Mr Bhushan was tagged on here.

With regard to the tweet where Mr Bhushan refers to personal liberties being destroyed, he could have arguably been more diplomatic in his choice of language, but it does not take away from the fact that it is the truth. Even I have said the same thing very often. And many historians, legal scholars, senior advocates, policy experts, political scientists, and other public intellectuals have expressed similar views.

This decision is surely going to have a chilling effect, and will cause a complete curtailment of the most precious rights of all the fundamental rights—Article 19.1 (a)—the freedom of speech and expression. This right to freedom of expression is important not just for young lawyers. It is important for everyone who is critical of the court. With this decision, the court has basically sent out a message that no one must criticise the institution, and everyone must stay quiet.

Increasingly, people feel that the Supreme Court is no longer the court of last resort. By holding Prashant Bhushan guilty of contempt, do you think the apex court inadvertently ended up doing what it accused Bhushan’s tweet of doing, that is, eroding the trust of the public in the judiciary?

I have already long been sceptical of the ability of the Supreme Court of today to really protect our freedoms. More than the decision finding Mr Bhushan guilty of contempt, the manner in which the court went about all this is what is worrying. And certainly, this will, if [it has] not already [done], diminish the dignity of the court.

The judgment itself was clearly problematic. Criminal contempt is in the nature of a trial. Evidence must be recorded wherever available. Full opportunity to be heard must be given to the alleged contemnor. All defences must be considered. None of this happened in the present case. Mr Bhushan had claimed that truth was his defence, and made a 135-para submission. In the judgment that was delivered finally, there is not a whisper of his defence. It merely reproduces some law and declares Mr Bhushan guilty. In fact, during the sentencing hearing, the judges reportedly admitted that they had not even completely read the affidavit. When counsel for Mr Bhushan tried to read out aloud the paragraphs that the judges claimed they had not read, he was not allowed to read them out. The Attorney General, Mr Venugopal, reportedly supported Mr Bhushan. He categorically said that similar statements had been made by many, including former judges, and therefore he should not be sentenced. Reportedly, his arguments were brushed aside.

The point made in Prashant Bhushan’s tweet, addressing the issue of the judiciary’s conduct over the past six years, has been raised by many citizens. By convicting Prashant Bhushan for airing such views, is the judiciary sending a warning to all that it will not tolerate scrutiny of any kind? Independence of the judiciary and its effective role in society, one would imagine, were the most pertinent issues of the day. By suppressing debate or dissent around this, is there an attempt at muzzling critical views?

Seventy years ago, the Supreme Court itself identified its role as that of a sentinel on the qui vive, on the alert—its constitutional and self-acknowledged role is that of the protector of fundamental rights. But I worry that this self-awareness might have diminished over the last several years. Most recently, we have had a series of cases that have highlighted this concern of how the Supreme Court is handling serious issues—whether it is the migrant workers’ situation; the Citizenship (Amendment) Act; preventive detentions; electoral bonds; suppression of protesters’ voices; the use of draconian laws of sedition; the broad interpretation of the Unlawful Activities (Prevention) Act last year in NIA vs. Zahoor Watali, which has effectively denied bail rights to arrestees under the law and given the police and prosecution a free rein. It appears as though the Supreme Court now sees the world only with the executive gaze. And in doing so, it is failing in its duty to protect fundamental rights.

Indeed, many of the more important cases that are being brought before the court are either being avoided outright, with the court looking the other way, or brushed under the carpet.

Obviously, the court is muzzling critical views. Actually, our judges should use this as an opportunity to introspect, and it’s sad that they should go on the defensive like this by attacking Mr Bhushan.

Contempt is being increasingly used to silence lawyers. Yatin Oza, for instance, was stripped of his “senior” advocate tag by the Gujarat High Court and is battling criminal contempt proceedings over a press conference. What place does a contempt law have in a democracy? Even the English, to whom we owe this law, have repealed it in their land. Isn’t it time for India to do the same?

The law of contempt has its origins in the principle that “the authority and dignity of the court” must be “respected” at all times. As with so many of our colonial-era laws, this principle has monarchical origins, when the King of England delivered judgments himself. But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy. In its home country, the law was repealed on the recommendation of the UK Law Commission.

Through acknowledging the irrelevance of this law in modern times, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that its utility and necessity have long vanished. We have seen a series of cases where courts have judiciously and sensibly ignored critical comments, and not commenced contempt proceedings (which in another era would have been the case).

Regarding the role of the Bar—I think it is important to remember that at all times, the Bar has been at the forefront of public life in India, since the time of our freedom struggle. Many lawyers and the Bar were responsible for fighting against the establishment during the Emergency. In the Bombay High Court “four judges” matter, the Bar passed an important resolution signalling its adherence to and upholding of the rule of law. The Bar cannot be emasculated. The end result of all this will only be a chilling effect, where young lawyers will not speak out against excesses of the court, judges or their misdemeanours.

With its decision in Mr Bhushan’s case, where it has merely reproduced some earlier judgments, and not dealt with any of the defences, arguably the Supreme Court's credibility is now at stake, and indeed, you could even argue that its international standing is shaken. Instead of fears that the tweets might have affected the court’s authority and dignity, its decision has in fact worsened its own reputation.

Sitting judges of the Supreme Court are openly singing paeans to the Prime Minister. Is this an unprecedented situation where the judiciary and the political class are blatantly hobnobbing, and why is it wrong?

Sycophancy among Indian judges is not a new thing. One recent example was of Justice Arun Mishra, speaking at the International Judicial Conference 2020, which had government ministers and senior judges from over 20 countries in attendance, praising the “versatile genius” of Prime Minister Modi to “think globally and act locally”.

The truth is many sitting judges in the Supreme Court have exhibited such behaviour even when they were in the High Courts. There is so much deference in the utterances of the judges. One expects a natural tension between the executive and the judiciary. The atmosphere is all too friendly here these days.

Under the garb of the pandemic, institutions have been made to shut down. Parliament is not functional, the police force is deputed to handle the pandemic, the judiciary has not resumed physical hearings properly. No other country has come to such a standstill as India has, and the only functional authority seems to be the executive. Why does this feel like a foreboding?

Indeed, this is a very worrying time. As I have said elsewhere, today in India it seems as though only the executive is actually working. Every other relevant body is either not working voluntarily or has been sidelined or silenced. This is true not just in India, but in other parts of the world as well. With the announcement of the lockdown the world over, there were legitimate fears that the situation would be used to suppress dissent and consolidate power. In a few countries, the validity of the lockdown has also been taken to court and challenged. India has been no exception to this abuse of power and the consequent fears. The central executive has become all-powerful, and all accountability mechanisms have been diluted. As scholars have pointed out, this is how elected autocracies emerge, and this is how democracies die.

Two years ago, four judges had blown open the lid of mismanagement in the roster of the Supreme Court and forewarned that democracy was in danger. In the past, courts have been extremely squeamish and intolerant to any allegation of corruption. But when some former judges accept plum postings or privileges from the government of the day, does it not muddy the waters?

The press conference of the four judges against the misuse of the master of the roster process by the then CJI was most unprecedented in the history of India or any judiciary. But what happened thereafter? Successive CJIs used the same bench, and blatantly and disappointingly continued the same practice.

Senior Advocate Mr Dushyant Dave has asked why politically sensitive matters are being given to certain benches, and why some judges are not being given important matters to handle at all.

An independent judiciary is a core and essential feature of a democracy. The “master of the roster” culture goes against the philosophy of an independent judiciary. If we really want to change the system, we must remove the opportunities for abuse that are offered by systems like the master of the roster, and start afresh. The Indian judiciary needs a lot of cleaning up. It is not impossible to do. We must have the willpower to do so, that’s all.

Interview with Justice Madan Lokur

Justice Madan B. Lokur: Respect is earned and cannot be forced by law

T.K. Rajalakshmi cover-story

The conviction of the advocate Prashant Bhushan by the Supreme Court on charges of criminal contempt has evoked a wide range of reactions among eminent jurists and members of the Bar. About 3,000 eminent persons from all walks of life, including 12 former judges, issued a statement in support of Prashant Bhushan. Justice Madan B. Lokur was one of them.

An outspoken critic of the judiciary and its functioning as well as government policies, Justice Lokur is at present a judge in the Supreme Court of Fiji. A former judge of the Supreme Court of India, he was also Chief Justice of the Andhra Pradesh and Gauhati High Courts. He was one of the four Supreme Court judges who held an unprecedented press conference in January 2018 highlighting the infirmities in the functioning of the higher judiciary.

In this interview to Frontline he says the law of contempt should be confined to civil contempt only. According to him, there is no need for a separate law for criminal contempt, which should be abolished. Excerpts:

The Law Commission of India, in its report on the Contempt of Courts Act, 1971, said that amending the definition would reduce the overall impact of the law and lessen the respect that people have for courts and their functioning. Do you agree with this viewpoint?

It seems to me that this particular reference by the Law Commission is to the district courts and not to the constitutional courts, that is, the High Courts and the Supreme Court. The Law Commission earlier observed: “Thus, the suggestion to delete the provision relating to ‘criminal contempt’ inter alia ‘scandalising of courts’ will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions.”

In any event, I personally don’t think that amending the definition of contempt by deleting criminal contempt would reduce the overall impact of the law or the respect that people have for the courts and their functioning. Respect is earned and cannot be forced by law.

There has also been a debate on whether the act of contempt should be confined only to cover civil acts of contempt, that is, instances of wilful disobedience of the court. Is this debate relevant? A far larger number of civil contempt cases are pending in High Courts and the Supreme Court than criminal contempt cases. What does this phenomenon indicate?

The contempt law should be confined to civil contempt only, that is, disobedience of an order of the Court or wilful breach of an undertaking given to the Court. The elements of criminal contempt can be dealt with under the existing criminal law quite effectively and so there is no need to have a separate law for criminal contempt.

It is true that cases of civil contempt are much, much more than cases of criminal contempt and it is for the justice delivery system to ensure that its orders are complied with. Quite often, disobedience of an order of the Court is by a government official. This is very sad and must be spotlighted by the Court. Senior officers in the government must take note of this so that orders passed by the Court are respected and implemented, otherwise we will sink into chaos.

Some countries, including the United Kingdom with whom we share common legal systems, have abolished the offence “of scandalising the court” in their contempt laws. In 2013, England did away with the law. Do you feel it is time India also did away with it?

The offence of scandalising the Court is really criminal contempt and I think we should abolish it, because this kind of an offence can be dealt with under the normal criminal law.

Does having it on the statute books actually inspire public respect or confidence in the judiciary or does the Damocles’ sword of contempt impede free speech and expression as guaranteed under the Constitution?

I really do not see how public respect or confidence in the judiciary can be maintained by a law on the statute books. Public respect or confidence can be earned and maintained only if orders of the Court are passed after a fair and impartial hearing and these orders are faithfully implemented and respected by all concerned, including government officers.

The law of criminal contempt can impede the fundamental right to free speech and expression. For example, if there is a criticism about the manner in which a case is being conducted, a court may take offence and describe that criticism as tending to interfere with or obstruct the administration of justice. This will obviously prevent criticism because it is impossible to know how the court will react to a particular critical comment.

Now, with the recent decision of the Supreme Court in the Prashant Bhushan contempt case, criticism may not be taken lightly, but may be dealt with with “an iron hand”.

Is there a model of the contempt law anywhere in the world where the dignity of the court is preserved and, at the same time, the law is not weaponised against the right to free speech and expression?

I have no idea about this and cannot give an answer. But it is unlikely that there will be some kind of a model law on contempt of court. There is however a U.N. Drug Control Programme Model Mutual Assistance in Criminal Matters Bill, 2000, which deals with contempt of court during criminal investigations.

In an explanatory statement, it is noted: “Contempt of court comprises an act of defiance of authority, of which failing to comply with a court order is one example. The punishment for contempt in most legal systems is a fine or committal to prison.”

Essentially, defiance of authority can be dealt with under the normal criminal law and failing to comply with a court order is civil contempt. If this distinction is maintained, a large part of the problem will be solved.

Recently, a member of the Bar made scathing remarks against you and other members of the judiciary following your observations on the Supreme Court in the migrant workers issue. The apex court took scant notice of this. It has been suggested that the member of the Bar was in contempt but the contempt law was not applied to him. Is the danger of a selective and arbitrary application of the contempt law inherent in the law itself?

There is a danger of a selective and arbitrary application of the contempt law in the sense that some judges may ignore an attempt to scandalise the court while others may not. The discretion is inherent and must be exercised judiciously by all judges and in a restrained manner, assuming for the purposes of this question that the law of criminal contempt continues to remain on the statute books.

Some clauses in Section 13 of the Contempt of Courts Act allow truth as a defence if it was in public interest and bona fide. Do you think courts give enough opportunity to those charged with contempt to establish the veracity or truthfulness of the act? And, in this particular case involving Prashant Bhushan, was adequate opportunity given to him?

My experience is that the courts do give enough opportunity to those charged with contempt of court to establish the veracity or truthfulness of the allegation. I have had occasion in the Supreme Court to deal with what appeared to be prima facie contempt of court but after hearing the alleged contemnor, we realised that there was some bona fide misunderstanding and the benefit of doubt was given to the alleged contemnor and the proceedings dropped. So, really it depends upon each case and each act complained of and no universal rule can be applied.

In the case of Prashant Bhushan, we need to first see whether any contempt was committed by him and then go into the veracity or truthfulness of the allegations. In my view he had only expressed his opinion and therefore there is no contempt committed by him. One may or may not agree with his opinion but surely he has a right to express that opinion.

Can two tweets of Prashant Bhushan shake the foundations of law and bring the administration of justice to disrepute? What is it exactly that brings the administration of justice into disrepute? Isn't freedom of speech and expression an integral component of the processes involving the administration of justice?

I don’t think the two tweets under consideration have brought the administration of justice into disrepute. It is difficult to accept that tweets can have such a massive impact as to shake the foundations of our justice delivery system. Our justice delivery system is set on firmer ground.

Contempt law&Free speech

Vague definition of criminal contempt

SANJAY HEGDE cover-story

In the corridors of the Supreme Court, a judicial humorist once mused, “What is the difference between a judge of the Supreme Court of India and God?” The answer was, “God doesn’t think he is a Justice of the Indian Supreme Court.” If the logic of the recent Supreme Court judgment where Prashant Bhushan is the alleged contemnor were to be extended to this unnamed gentleman, it is quite possible that he might be held guilty of criminal contempt.

Section 2(c) (i) of the Contempt of Courts Act defines criminal contempt as words or action that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. The words are of vast import, and on August 14 this year, the court convicted advocate Prashant Bhushan for two tweets that were in its judgment an “attempt to shake the very foundation of constitutional democracy” which “has to be dealt with an iron hand”.

The first tweet adjudged as contemptuous reads as follows: “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

The second tweet reads: “When historians in the future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

The first tweet, which referred to the Chief Justice sitting on an expensive motorcycle, was not held to be contemptuous. The court notes in para 62 that “This part of the tweet could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI.” Despite making this distinction, the overall impact seemed to have been taken into account when the court ruled: “The said tweet is capable of giving an impression to a layman that the CJI is enjoying his ride on a motorbike worth Rs.50 lakh belonging to a BJP leader, at a time when he has kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice.”

As far as the second tweet is concerned, the court says in para 67: “The impression which the said tweet tends to give to an ordinary citizen is, that when the historians in future look back, the impression they will get is, that in the last six years the democracy has been destroyed in India without even a formal emergency and that the Supreme Court had a particular role in the said destruction and the last four Chief Justices of India had more particular role in the said destruction.”

It further holds: “It is clear, that the criticism is against the entire Supreme Court and the last four CJIs. The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India. The impression that the said tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it.”

The court says: “We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.”

In the light of the court’s ruling that Prashant Bhushan’s tweets were an “attempt to shake the very foundation of constitutional democracy” which “has to be dealt with an iron hand”, it may be safe to define the offence of criminal contempt under Section 2(c) (i) of the Contempt of Courts Act as anything that angers or infuriates an Indian judge just sufficiently enough for the judge to rule that it “ scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. Prashant Bhushan now joins E.M.S. Namboodripad and Arundhati Roy in a list of public personalities whose speeches, writings and tweets have so scandalised the nation’s highest courts that the courts have felt compelled to restore their authority by writing judgments of conviction. How exactly is a court scandalised? Conversely, how is a citizen to know that he has not scandalised a court? Let us start from the beginnings of the laws of Criminal Contempt of Court.

The Origin of Contempt Jurisdiction

The power to punish for contempt has its origins in English common law. Contempt jurisdiction in England was originally limited to “contempt in the face of the court”. This is concerned with such behaviour in the courtroom, or in its vicinity, which interfered with the proper administration of justice. Contempt power was also exercised to punish parties who were guilty of disobeying court orders.

The phrase “scandalising the court” is incapable of precise definition. However, precedent shows that the offence is committed when “free comment, becomes too free in the opinion of a judge”. The phrase was first used in the 1742 case of Roach vs Garvan. In Roach, Lord Hardwicke convicted an editor for impugning the characters of witnesses. An argument that such a matter was best left to a libel suit was rejected. Hardwicke stated that courts must punish publications that result in “prejudicing mankind against persons before the case is heard” and that they must do so to “keep the streams of justice clear and pure”.

The law on scandalising the court as it currently exists has its origins in the 1765 case of Rex vs Almon. A judgment was never delivered in the case itself. Justice Wilmot’s opinion in the case was published many years later by his son in 1802. It forms the foundation of the modern doctrine of contempt for scandalising the court.

Wilmot argued that the purpose of contempt law was “to keep a blaze of glory around judges”. He observed: “The arraignment of the justice of the judges is arraigning the King’s justice.” It “excites in the minds of the people a general dissatisfaction with all judicial determinations… and whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice”. He stated that contempt law was necessary “not for the sake of the judges as private individuals, but because they are the channels by which the King’s justice is conveyed to the people”.

For more than 100 years thereafter, contempt power was almost never resorted to in England. Despite it being rarely invoked in England/United Kingdom itself, prosecutions for contempt continued in the colonies. In India, Devdas Gandhi, the youngest son of Mahatma Gandhi and the editor of Hindustan Times, was imprisoned for contempt in view of certain articles that had been published in the paper. He was fined Rs.1,000 or in default ordered to undergo a month's imprisonment. He refused to pay a fine. The Appellate Court refused a stay pending an appeal, and Gandhi had already served his prison sentence by the time his appeal was allowed.

Editors in some other colonies were luckier. In Ambard vs Attorney-General for Trinidad and Tobago, the court was concerned with an article in The Port of Spain Gazette. The article criticised the discrepancy between the sentences given in two apparently similar cases. It suggested that the discrepancy was due to human differences between the judges with regard to sentencing. Allowing the editor’s appeal to the Privy Council, Lord Atkin observed: “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

Abolition of Contempt by Scandalising the court in England

In 1968, after a gap of many years, English courts invoked their contempt jurisdiction. Quintin Hogg, a Member of Parliament (he would go on to become Lord Chancellor Hailsham) wrote an article in the magazine Punch, criticising a judgment of the Queen’s Bench Divisional Court. In his opinion for the Court of Appeal, Lord Denning declared that contempt jurisdiction would not be used to uphold the dignity of the courts. “That must rest on surer foundations,” wrote Denning. He went on to write that critics of judges must be mindful of the fact that the judges could not respond to their criticism and could vindicate themselves only through their conduct.

In 1974, the Phillimore Committee recommended reforms that significantly watered down the existing law on contempt in England. Eventually, the Law Commission of the United Kingdom recommended that the offence of scandalising the court be abolished. The offence was therefore abolished in 2013.

In India, however, the Constitution contains a provision listing laws relating to contempt of court as a reasonable restriction on the fundamental right of free speech and expression. The offence of “scandalising the court” had been given statutory basis through the Contempt of Courts Act of 1971.

The framers of our Constitution did not originally envisage contempt as a restriction on free speech. The interim report on fundamental rights (1947) contained no reference to contempt. The Draft Constitution of 1948 did not mention contempt either. An amendment introducing contempt as a restriction on free speech was introduced on October 17, 1949. It is relevant to note that the amendment was introduced during the 15th month of discussions in the Assembly, a month before the Constitution would eventually be adopted and a year after the free speech clause of the Constitution had been discussed, and to the minds of some members, finalised.

Introducing the amendment, T.T. Krishnamachari argued that the rationale of the amendment “….was to cover one category of what might be called lapses in the exercise of freedom of speech and expression, namely, a person might be speaking on a matter which is sub judice and thereby interfere with the administration of justice”. He further argued that it was never the intention of the drafting committee “to allow contempt of court to take place without any let or hindrance”. Krishnamachari added that the amendment did not extend the scope of limitations on free speech. It was only remedying a lacuna. He also argued that the power to punish for contempt was “a very necessary protection”.

Most members who entered the debate argued against the introduction of contempt as a restriction to free speech. The most trenchant opposition came from R.K. Sidhva, who argued that High Court judges were not infallible and that comment against judges was necessary in the interest of public life. He also pointed out the procedural anomaly in contempt trials stating that “the High Court judge is the prosecutor and he himself sits and decides cases in which he himself has felt that contempt of court has been committed”. Sidhva also questioned whether any other Constitution in the world provided for a provision on contempt. He argued that such a provision would put the “judge above everybody” and “make him a Super God”.

B. Dass protested against the last-minute change to fundamental rights and characterised it as “the tyranny of the drafting committee”. He also wondered if fundamental rights, which were passed by the house with “real solemnity” and “after great consideration”, could be changed overnight. Arguing against the provision itself, Dass stated that the power to punish for contempt would be used by “penniless lawyers who became judges to regulate and control affairs”.

The debates in the Constituent Assembly reveal that contempt as a restriction on free speech was originally envisaged for cases where speech was intended to unfairly influence the outcome of a sub-judice matter. However, early contempt jurisprudence shows that Indian courts regularly invoked contempt powers in cases concerning “scandalising the court”. The doctrine was given statutory basis through the Contempt of Courts Act, 1971, which holds that speech that “scandalises or tends to scandalise a court” amounts to contempt.

Contempt and the Courts of India

Over the years, various types of conduct and speech have been deemed to be contemptuous. This piece can only give a flavour of some of the cases. Perhaps the earliest instance of the Supreme Court taking action against what it perceived to be a contemptuous publication happened in 1952. The Times of India had published an article titled “A Disturbing Decision”. The piece criticised the Supreme Court for having ended the “dual system” of practice at the Bombay and Calcutta High Courts. It stated: “Politics and policies have no place in the pure region of the law” and implied that the court may have acted out of “extraneous considerations”. The court held that the imputation of improper motives to a judge had a “clear tendency to affect the dignity and prestige of the court” and found the editors to be guilty of contempt.

Another notable instance of contempt arose in November 1967. In a speech, E.M.S. Namboodiripad, the former Chief Minister of Kerala, accused Indian judges of being guided by class interests and prejudice. He also argued that they decided cases in favour of the “well-dressed”, “pot-bellied, rich man” and that the law and the judiciary served the exploiting classes. The Kerala High Court found Namdoodiripad guilty of contempt and imposed a fine of Rs.1,000 on him. In appeal, the Supreme Court reduced the fine to Rs.50 but held that Namboodiripad was “guilty of a great calumny”. The court also held that contempt could be committed not only in respect of a particular judge, but also in respect of the entire judicial system.

In October 1969, the Supreme Court decided a service dispute in favour of the State of Uttar Pradesh and against one O.P. Gupta. Following the judgment, Gupta published a pamphlet inter alia stating that the judges had passed “a demonstrably dishonest judgment which cannot fail to show to any discerning person that he did so only to feed fat his prejudice and bias”. Some members of the Bar found him distributing these pamphlets in the court library and made a complaint of the same to the court. In March 1971, the Constitution Bench of the court found Gupta guilty of contempt, holding that an attack such as the one made would undermine the confidence of the public in the judiciary. The court held that the law of contempt was a reasonable restriction on the right of free speech. Later that year, Parliament enacted the Contempt of Courts Act, 1971, which includes Section 2 (c) (i) which has already been quoted.

Not all contempt proceedings have ended with a finding of guilt. P.N Dua vs P. Shiv Shankar concerned a case where Union Law Minister P. Shiv Shankar had made a speech stating that the Supreme Court was “composed of the elements from the elite class” and “had their unconcealed sympathy for the haves i.e. the Zamindars”. He also referred to the judges as “antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries”. The court held that Shiv Shankar was not guilty of contempt, though his speech was a “little intemperate”.

In Hari Singh Nagra vs Kapil Sibal, the court was seized of a publication, where Sibal had written that judges were corrupt and received “monetary benefits for judicial pronouncements”. He stated that they were guilty of “rendering blatantly dishonest judgments, kow-towing with political personalities and obviously favouring the government and thereby losing all sense of objectivity”. A petition seeking initiation of contempt proceedings was filed before the Supreme Court by some advocates of the Punjab and Haryana High Court. The court held that Sibal was not guilty of contempt. It observed that Sibal’s “message is nothing but concerns of a senior advocate who has practised long in this court who noticed that the public image of the legal community was its nadir”. The court went on to hold that “the article is an expression of opinion about an institutional pattern. The article by itself does not affect the administration of justice.”

In finding Sibal not guilty of contempt, the bench took into his account his standing at the Bar and the fact that he had articulated his concern about the institution. The same indulgence has not been shown to Prashant Bhushan. On August 20, the court insisted on granting him time to file an unqualified apology if he so desired.

At the time of going to press, Prashant Bhushan has not filed an apology. He has asserted: “I have made the statements bona fide and pleaded truths with full details, which have not been dealt with by the court. If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem.”

Whether Prashant Bhushan suffers a sentence of imprisonment or not after these proceedings is irrelevant. His case has told the country how limited its freedom of speech and expression is when speaking or writing about the highest judiciary in this country. It may be well argued that the definition of criminal contempt by scandalising a court is vague, overboard and likely to be struck down as unconstitutional, as was the case in Shreya Singhal, in which the Supreme Court struck down Section 66A of the Information Technology Act. However, this Section 2 (c) (i) has continued to be in the statute books for almost five decades and has been invoked by courts on multiple occasions. Power is delightful and absolute power is absolutely delightful.

In the 1964 case of Jacobellis vs Ohio, while defining hard-core pornography in the context of a film, Justice Potter-Stewart of the United States Supreme Court wrote: “I know it, when I see it and the motion picture involved in this case is not that.” Ever since, judicial humorists seized upon the phrase, “I know it when I see it” to define pornography as anything that sexually aroused a judge. In 1981, Justice Stewart commented, “In a way I regret having said what I said about obscenity—that’s going to be on my tombstone. When I remember all of the other solid words I’ve written, I regret a little bit that if I’ll be remembered at all I’ll be remembered for that particular phrase.”

The Prashant Bhushan judgment is, similarly, a case of “I know it when I see it”. Let history be the final judge of which side of the court, Bar or bench has increased or lowered its authority.

Sanjay Hegde is a Senior Advocate in the Supreme Court of India. He acknowledges research assistance for this article from Advocate Pranjal Kishore.

When Gandhi said no

V. Venkatesan cover-story

In Re: Mohandas Karamchand Gandhi and Others, decided by a three-judge bench of the Bombay high court on March 12, 1920 (Coram: Amberson Barrington Marten, M.H.W. Hayward and A.M. Kajiji) has a lot of significance for contempt of court proceedings. In this case, Gandhi and Mahadev Haribhai Desai, editor and publisher of Young India, were arraigned as contemnors for publishing on August 6, 1919, a letter dated April 22, 1919 written by the District Judge of Ahmedabad (B.C. Kennedy) to the Registrar of Bombay High Court, with their comments. The gist of the charge was that the letter in question was a private official letter forming part of a pending case.

In his letter, Judge Kennedy submitted for the determination of the High Court the question of the lawyers of the Ahmedabad court who had signed the “Satyagraha Pledge” authored by Gandhi. The pledge, among other things, required the pleaders to refuse civilly to obey the Rowlatt Act, which was passed by the Imperial Legislative Council in Delhi on March 18, 1919, indefinitely extending the emergency measures of preventive indefinite detention, incarceration without trial and judicial review enacted in the Defence of India Act, 1915, during the First World War. It was the Rowlatt Act that brought Gandhi to the mainstream of Indian struggle for independence, and marked the beginning of the Gandhi era in Indian politics.

Kennedy’s letter prompted the High Court to issue notice to the Ahmedabad lawyers. In his comments on Kennedy’s letter, Gandhi wrote that Kennedy prejudged the issue, and made an impudent suggestion that the lawyers who took the pledge had committed a criminal breach of the law of the land. Gandhi concluded his article saying that “these traducers of civil resistance and civil resistors are becoming the instruments for propagating Bolshevism, that is, the spirit of lawlessness accompanied with violence, and that the Government of Burma, the Government of Punjab and the District Judge of Ahmedabad are all in their own way endeavouring forcibly to impose their will upon civil resisters, but that those who are trying to crush the spirit of civil resistance are but fanning the fire of Bolshevism”.

In his letter of October 22, 1919, to the High Court, Gandhi wrote: “In my humble opinion, I was within the rights of a journalist in publishing the letter in question and making comments thereon. I believed the letter to be of great public importance and one that called for public criticism.”

When the High Court Chief Justice asked Gandhi to publish an apology in the prescribed form, Gandhi refused to do so and stated that in publishing and commenting on the latter, he had performed a useful public duty at a time when there was great tension and when even the judiciary was being affected by the popular prejudice: but that he had no desire whatsoever to prejudge the issues which their Lordships had had to decide. Then, after referring to the honour of journalism and to his membership of the Bombay Bar and its traditions, Gandhi stated that in similar circumstances he would not act differently, and that he could not conscientiously offer any apology, and that, if that explanation was not considered sufficient, he would respectfully suffer the penalty.

Gandhi further stated: “I regret that I have not found it possible to accept the advice given by His Lordship the Chief Justice. Moreover, I have been unable to accept the advice because I do not consider that I have committed either a legal or a moral breach by publishing Mr. Kennedy’s letter or by commenting on the contents thereof. I am sure that this Honourable Court would not want me to tender an apology unless it be sincere and express regret for an action which I have held to be the privilege and duty of a journalist. I shall therefore cheerfully and respectfully accept the punishment that this Honourable Court may be pleased to impose upon me for the vindication of the majesty of law.” The publisher, Mahadeo Desai, the second contemnor, also offered to cheerfully and respectfully abide by any penalty that the court might be pleased to inflict on him.

After surveying the case law on the subject, the bench concluded that the publication of the letter by Gandhi was contempt of court, and that his comments on it were of intemperate and reprehensible character. “They prejudge the case and tend to undermine any decision which the High Court may come to at the trial”, the bench said, adding it amounted to “scurrilous abuse of the Judge as such”.

The bench reasoned that if tension and popular prejudice existed, as claimed by Gandhi, they would be increased rather than diminished by the abuse of the local judge, and that could not be the public duty of any good citizen.

In Paragraph 31, Judge Marten observed: “We have large powers and in appropriate cases can commit offenders to prison for such period as we think fit and can impose fines of such amount as we may judge right. But just as our powers are large, so ought to, I think, to use them with discretion and with moderation, remembering that the only object we have in view is to enforce the due administration of justice for the public benefit.”

Judge Hayward held that commenting on the letter amounted to “scandalising” Judge Kennedy. He also suggested that the respondents posed not as law-breakers but rather as passive resistors of the law. Therefore, he felt it would be sufficient to enunciate unmistakably the law in these matters, to severely reprimand them for their proceedings, and to warn them of the penalties imposable by the High Court.

 

Interview: Justice A.P. Shah

Justice A.P. Shah: Supreme Court comes across as an intolerant institution

Divya Trivedi cover-story

Justice A.P. Shah, former Chief Justice of the Delhi and Madras High Courts, weighed in on the contempt proceedings against Prashant Bhushan in an interview with Frontline. Not one to mince words, the Chairman of the 20th Law Commission of India said that the Supreme Court now appeared to see the world only through the executive gaze and in doing so was failing in its duty to protect fundamental rights.

Does holding Prashant Bhushan guilty of contempt over a couple of tweets amount to judicial overreach? Will this verdict have a ripple effect and rob young lawyers of the freedom to raise valid questions about the judiciary?

There is no doubt in my mind that with this decision, the Supreme Court has come across as an intolerant institution. It has effectively announced to the world that it is not open to any criticism. The more concerning aspect is how and why the court appears to be going after Mr Bhushan for these tweets.

The tweets in question are actually fairly trivial and inconsequential, which even the Supreme Court realises. This probably explains why the nine-year-old contempt case against Mr Bhushan was tagged on here.

With regard to the tweet where Mr Bhushan refers to personal liberties being destroyed, he could have arguably been more diplomatic in his choice of language, but it does not take away from the fact that it is the truth. Even I have said the same thing very often. And many historians, legal scholars, senior advocates, policy experts, political scientists, and other public intellectuals have expressed similar views.

This decision is surely going to have a chilling effect, and will cause a complete curtailment of the most precious rights of all the fundamental rights—Article 19.1 (a)—the freedom of speech and expression. This right to freedom of expression is important not just for young lawyers. It is important for everyone who is critical of the court. With this decision, the court has basically sent out a message that no one must criticise the institution, and everyone must stay quiet.

Increasingly, people feel that the Supreme Court is no longer the court of last resort. By holding Prashant Bhushan guilty of contempt, do you think the apex court inadvertently ended up doing what it accused Bhushan’s tweet of doing, that is, eroding the trust of the public in the judiciary?

I have already long been sceptical of the ability of the Supreme Court of today to really protect our freedoms. More than the decision finding Mr Bhushan guilty of contempt, the manner in which the court went about all this is what is worrying. And certainly, this will, if [it has] not already [done], diminish the dignity of the court.

The judgment itself was clearly problematic. Criminal contempt is in the nature of a trial. Evidence must be recorded wherever available. Full opportunity to be heard must be given to the alleged contemnor. All defences must be considered. None of this happened in the present case. Mr Bhushan had claimed that truth was his defence, and made a 135-para submission. In the judgment that was delivered finally, there is not a whisper of his defence. It merely reproduces some law and declares Mr Bhushan guilty. In fact, during the sentencing hearing, the judges reportedly admitted that they had not even completely read the affidavit. When counsel for Mr Bhushan tried to read out aloud the paragraphs that the judges claimed they had not read, he was not allowed to read them out. The Attorney General, Mr Venugopal, reportedly supported Mr Bhushan. He categorically said that similar statements had been made by many, including former judges, and therefore he should not be sentenced. Reportedly, his arguments were brushed aside.

The point made in Prashant Bhushan’s tweet, addressing the issue of the judiciary’s conduct over the past six years, has been raised by many citizens. By convicting Prashant Bhushan for airing such views, is the judiciary sending a warning to all that it will not tolerate scrutiny of any kind? Independence of the judiciary and its effective role in society, one would imagine, were the most pertinent issues of the day. By suppressing debate or dissent around this, is there an attempt at muzzling critical views?

Seventy years ago, the Supreme Court itself identified its role as that of a sentinel on the qui vive, on the alert—its constitutional and self-acknowledged role is that of the protector of fundamental rights. But I worry that this self-awareness might have diminished over the last several years. Most recently, we have had a series of cases that have highlighted this concern of how the Supreme Court is handling serious issues—whether it is the migrant workers’ situation; the Citizenship (Amendment) Act; preventive detentions; electoral bonds; suppression of protesters’ voices; the use of draconian laws of sedition; the broad interpretation of the Unlawful Activities (Prevention) Act last year in NIA vs. Zahoor Watali, which has effectively denied bail rights to arrestees under the law and given the police and prosecution a free rein. It appears as though the Supreme Court now sees the world only with the executive gaze. And in doing so, it is failing in its duty to protect fundamental rights.

Indeed, many of the more important cases that are being brought before the court are either being avoided outright, with the court looking the other way, or brushed under the carpet.

Obviously, the court is muzzling critical views. Actually, our judges should use this as an opportunity to introspect, and it’s sad that they should go on the defensive like this by attacking Mr Bhushan.

Contempt is being increasingly used to silence lawyers. Yatin Oza, for instance, was stripped of his “senior” advocate tag by the Gujarat High Court and is battling criminal contempt proceedings over a press conference. What place does a contempt law have in a democracy? Even the English, to whom we owe this law, have repealed it in their land. Isn’t it time for India to do the same?

The law of contempt has its origins in the principle that “the authority and dignity of the court” must be “respected” at all times. As with so many of our colonial-era laws, this principle has monarchical origins, when the King of England delivered judgments himself. But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy. In its home country, the law was repealed on the recommendation of the UK Law Commission.

Through acknowledging the irrelevance of this law in modern times, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that its utility and necessity have long vanished. We have seen a series of cases where courts have judiciously and sensibly ignored critical comments, and not commenced contempt proceedings (which in another era would have been the case).

Regarding the role of the Bar—I think it is important to remember that at all times, the Bar has been at the forefront of public life in India, since the time of our freedom struggle. Many lawyers and the Bar were responsible for fighting against the establishment during the Emergency. In the Bombay High Court “four judges” matter, the Bar passed an important resolution signalling its adherence to and upholding of the rule of law. The Bar cannot be emasculated. The end result of all this will only be a chilling effect, where young lawyers will not speak out against excesses of the court, judges or their misdemeanours.

With its decision in Mr Bhushan’s case, where it has merely reproduced some earlier judgments, and not dealt with any of the defences, arguably the Supreme Court's credibility is now at stake, and indeed, you could even argue that its international standing is shaken. Instead of fears that the tweets might have affected the court’s authority and dignity, its decision has in fact worsened its own reputation.

Sitting judges of the Supreme Court are openly singing paeans to the Prime Minister. Is this an unprecedented situation where the judiciary and the political class are blatantly hobnobbing, and why is it wrong?

Sycophancy among Indian judges is not a new thing. One recent example was of Justice Arun Mishra, speaking at the International Judicial Conference 2020, which had government ministers and senior judges from over 20 countries in attendance, praising the “versatile genius” of Prime Minister Modi to “think globally and act locally”.

The truth is many sitting judges in the Supreme Court have exhibited such behaviour even when they were in the High Courts. There is so much deference in the utterances of the judges. One expects a natural tension between the executive and the judiciary. The atmosphere is all too friendly here these days.

Under the garb of the pandemic, institutions have been made to shut down. Parliament is not functional, the police force is deputed to handle the pandemic, the judiciary has not resumed physical hearings properly. No other country has come to such a standstill as India has, and the only functional authority seems to be the executive. Why does this feel like a foreboding?

Indeed, this is a very worrying time. As I have said elsewhere, today in India it seems as though only the executive is actually working. Every other relevant body is either not working voluntarily or has been sidelined or silenced. This is true not just in India, but in other parts of the world as well. With the announcement of the lockdown the world over, there were legitimate fears that the situation would be used to suppress dissent and consolidate power. In a few countries, the validity of the lockdown has also been taken to court and challenged. India has been no exception to this abuse of power and the consequent fears. The central executive has become all-powerful, and all accountability mechanisms have been diluted. As scholars have pointed out, this is how elected autocracies emerge, and this is how democracies die.

Two years ago, four judges had blown open the lid of mismanagement in the roster of the Supreme Court and forewarned that democracy was in danger. In the past, courts have been extremely squeamish and intolerant to any allegation of corruption. But when some former judges accept plum postings or privileges from the government of the day, does it not muddy the waters?

The press conference of the four judges against the misuse of the master of the roster process by the then CJI was most unprecedented in the history of India or any judiciary. But what happened thereafter? Successive CJIs used the same bench, and blatantly and disappointingly continued the same practice.

Senior Advocate Mr Dushyant Dave has asked why politically sensitive matters are being given to certain benches, and why some judges are not being given important matters to handle at all.

An independent judiciary is a core and essential feature of a democracy. The “master of the roster” culture goes against the philosophy of an independent judiciary. If we really want to change the system, we must remove the opportunities for abuse that are offered by systems like the master of the roster, and start afresh. The Indian judiciary needs a lot of cleaning up. It is not impossible to do. We must have the willpower to do so, that’s all.

When silence is not the answer

V. VENKATESAN cover-story

“I live with the realisation that I have received from this institution much more than I have had the opportunity to give it…. Today, in these troubling times, the hopes of the people of India vest in this court to ensure the rule of law and the Constitution and not an untrammeled rule of the executive. This casts a duty, especially for an officer of this court like myself, to speak up, when I believe there is a deviation from its sterling record. Therefore, I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of people’s rights…. An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be sincerely made…. If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of conscience and of an institution that I hold in highest esteem.”

—Prashant Bhushan, activist and Supreme Court lawyer, in his supplementary statement to the Supreme Court on August 25 in response to the court finding him guilty of contempt of court.

His offence: he posted two tweets in June critical of the Supreme Court’s functioning during the lockdown, and of the last four chief justices of India, for their role in the ‘destruction of democracy’.

The three-judge bench of the Supreme Court comprising Justices Arun Mishra, B.R. Gavai and Krishna Murari, while considering Bhushan’s supplementary statement, before sentencing him for contempt, said: “What is wrong in using the word “apology” or seeking apology? Will it amount to admission of the guilt? Apology is a magical word, which can heal many things. Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that.”

For a dispassionate observer of the proceedings before the Supreme Court in this case, the answers to the questions posed by the bench were available in Bhushan’s supplementary statement. Therefore, the bench’s inquisitive queries on apology made many wonder whether it read and understood Bhushan’s initial and supplementary statements in their entirety.

The word ‘incantation” used by Bhushan in the statement is an answer to the question why ‘apology’ should not be be used as a magical word to heal an imaginary hurt, and in that process, evade punishment.

The bench’s reference to Mahatma Gandhi’s use of apology appears to be aimed at Bhushan himself relying on Gandhi in his first statement, which he submitted to the court on August 20. Bhushan said then:

“My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic…. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bona fide belief. Therefore, I can only humbly paraphrase what the father of the nation, Mahatma Gandhi had said in his trial: I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to the highest duty of a citizen.”

Mahatma Gandhi refused to apologise to the court even when he was asked to in the contempt of court proceedings against him because he genuinely felt that he did no wrong by publishing and commenting on a letter written by a judge, which might affect pending proceedings in the high court, in the public interest.

It is not clear whether the Supreme Court bench was aware of the historic context in which Gandhi made those remarks refusing to apologise, and offering himself to be punished, which inspired Bhushan to do so similarly in the contempt proceedings against him. Had Gandhi wanted to apologise in order to heal the sense of hurt of the judges—as the Supreme Court felt on August 25 what a contemnor is expected to do—it would have certainly appeared as insincere. But, like the judges of the Bombay High Court in the colonial era, it appeared the three judges had no compunction in seeking an unconditional, involuntary, and insincere apology from Bhushan. It is not as if Bhushan would refuse to offer regret if he had realised that he was in the wrong. On February 1 last year, he had tweeted about the deliberations of the committee headed by Prime Minister Narendra Modi to select a new director for the Central Bureau of Investigation (CBI) after the removal of the then Director, Alok Verma. Bhushan, quoting a letter written by the Leader of the Opposition and Congress leader, Mallikarjun Kharge, (who was a member of the selection committee) had hinted at the possibility of the Attorney General for India, K.K. Venugopal, submitting, on behalf of the Centre, fabricated minutes of the meeting of the selection committee to the Supreme Court which was hearing a challenge by Alok Verma against his removal. Venugopal, who had submitted the minutes in a sealed cover to the bench headed by Justice Arun Mishra, alleged that Bhushan had intentionally raised doubts about his integrity and honesty. When Bhushan realised his mistake, he admitted it to the court, and Venugopal requested the court to drop the contempt proceedings against him, saying he accepted Bhushan’s admission, and did not want him to be punished.

In the same case, however, Bhushan had sought the recusal of Justice Arun Mishra from hearing the contempt case. When Justice Arun Mishra refused to recuse himself and sought his unconditional apology for seeking his recusal, Bhushan declined.

Rather than close the proceedings following Venugopal’s request, the Arun Mishra bench kept it alive, in order to legally determine the status of comments being made in respect of sub judice matters, and also answer Bhushan’s plea for recusal of Justice Arun Mishra. The court, however, could not take this case further after hearing it last on March 7 last year.

What surprised observers was that the bench, after issuing notice to Bhushan for his two tweets on July 22, also decided to hear a 11-year-old contempt of court case against him, which had not been listed after 2012. In this case, Bhushan had given an interview to Shoma Chaudhury of Tehelka magazine, alleging corruption in the higher judiciary. Bhushan had claimed that half of the previous 16 chief justices of India in 2009 were corrupt. As his list also included the then Chief Justice of India, the late S.H. Kapadia, contempt proceedings were initiated against Bhushan, on the request of the Amicus Curiae in another case, Harish Salve.

In this case, Bhushan had alleged that Chief Justice Kapadia heard a case concerning Sterlite Industries in which he had certain shares that made him vulnerable to the allegation of conflict of interest. Chief Justice Kapadia claimed that he had disclosed the fact of his shareholding during the hearing of the case, and counsel, in response, had no objection whatsoever to the matter being heard by him. But then the people who were aggrieved by Sterlite’s project were not before the court, and in Bhushan’s view, their view would have mattered whether Chief Justice Kapadia could hear the matter, despite the obvious conflict of interest. Subsequently, however, Bhushan told the court that he had the highest regard for Chief Justice Kapadia, and no disrespect was meant to him in the interview.

On July 14, 2010, the bench comprising Justices Altamas Kabir, Cyriac Joseph and H.L. Dattu had referred to Salve’s allegation that Bhushan’s interview deliberately aimed at tarnishing the image of the judiciary as a whole, particularly a sitting judge of the Supreme Court, in the eyes of the general public without any foundation. The bench had also held the then editor of Tehelka magazine, Tarun Tejpal, allegedly responsible for lowering the dignity of the court in the eyes of all stake holders in the justice delivery system.

With Bhushan refusing to apologise in this case, the proceedings in this case remained inconclusive. In 2011, Bhushan sought a reference to the Constitution bench on whether expressions of bona fide opinion on the extent of corruption in judiciary would constitute contempt. Information about the names of eight Chief Justices of India who, according to Bhushan, were corrupt, was submitted to the bench in a sealed cover, which continues to be under wraps.

Interestingly, when the Justice Arun Mishra bench wanted to revive this case, it was confronted with the same issues raised by Bhushan in 2012. In addition, the bench framed the following issues:

i) In case a public statement as to corruption by a particular judge(s) is permissible, under what circumstances and on what basis it can be made, and safeguards, if any, to be observed in that regard?

ii) What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting judge?

iii) Whether against retired judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?

Bhushan submitted that corruption is not restricted to pecuniary gratification alone, but has to be understood in a wide sense to include any act of impropriety. He has also argued that allegations of corruption cannot per se be considered as contemptuous, because truth is a defence in contempt proceedings.

On August 25, the bench observed: “There is paucity of time; otherwise, we would have heard the learned senior counsel with respect to the questions which have been proposed. However, since the matter is pending for the last 10 years, as prayed for, we fix the date for hearing in the month of September, 2020. Let the matter be listed on 10.09.2020 before an appropriate Bench as may deem fit by Hon’ble the Chief Justice of India.”

As Justice Arun Mishra retires on September 2, all pending matters before his bench have to be necessarily listed before other benches for further hearing. When counsel for Bhushan had questioned the bench’s decision to prioritise this case in the absence of physical functioning of the court due to the lockdown, Justice Arun Mishra’s move to fix an early date for the next hearing by an appropriate bench even after his retirement, is sure to raise eyebrows. As the master of the roster, the Chief Justice alone has the power to prioritise pending cases for hearing by appropriate benches. Justice Arun Mishra’s move to fix the next date of hearing of a case after his retirement—especially when counsel for Bhushan wanted it heard after the resumption of normal hearing of the court—is likely to be viewed as impropriety.

Flaws in Sentence hearing

In his written submissions before the Supreme Court, Bhushan’s counsel, Rajeev Dhavan, has underlined his grievance that the complainant in the tweets case, Mahek Maheshwari, a prominent Bharatiya Janata Party member, was successful in getting his petition heard by the Supreme Court despite his failure to secure the consent of the Attorney General for India as required by law. The Supreme Court took note of Maheshwari’s petition and exercising its administrative jurisdiction, converted it as a suo motu petition to be heard on the judicial side. However, it refused to share Maheshwari’s petition with Bhushan, despite his plea for the same.

“The implications of this are far reaching because Bhushan and the public are entitled to know whether the complaint was mala fide or even personally or politically motivated,” Dhavan submitted. Besides, by not agreeing to permit Bhushan to prove the truth of his tweets, the Supreme Court appears to have supported the view that truth does not matter, even though truth is a defence in contempt proceedings.

Dhavan pointed out that Bhushan’s record on judicial accountability and the public interest speaks for itself. Among the corruption cases which Bhushan has legally fought, the following were prominent: The case concerning the impeachment of Justice V. Ramaswamy (1991); the coal mining case (2014); Goa mining case (2018); Odisha mining case (2014); Karnataka mining case (2013); Pricewaterhouse case on remittances abroad by foreign firms (2018); 2G case (2012); challenge to foreign funding of political parties (2014); setting aside of Chief Vigilance Commissioner’s appointment on the grounds of lack of integrity (2011); setting up of a Special Investigation Team in the CBI Director case (2014); and the Lokpal case (2017).

Among the public interest causes litigated by Bhushan, the following deserve special mention: The Narmada case (2011); the Bofors case (1992); the Police Reforms case (2006); HPCL privatisation case (2003); the passive euthanasia case (2018); the misuse of government advertisements case (2015); the street vendors case; the rickshaw pullers case (2012); the Singur land acquisition case (2017); the drought management case; the gram nyayalas case (2019) and the challenge to electoral bonds case (2017), which is pending.

Dhavan emphasised in his submissions that the definition of the offence of scandalising the court is notoriously vague. It has not been defined anywhere by statute or by judgments. An undefined or ambiguously defined offence has to be handled with care, and used only in extreme cases, he told the court.

Justice Arun Mishra, when he was the Chief Justice of the Calcutta High Court, had not found the West Bengal Chief Minister Mamata Banerjee guilty of contempt of court, when she gave a speech in 2013 suggesting that judgments were delivered in exchange for money and that corruption had made inroads into the judiciary and democracy as a whole.

Bhushan, along with prominent journalists N. Ram and Arun Shourie, filed a writ petition in the Supreme Court challenging the consti-tutionality of Section 2 (c)(i) of the Contempt of Courts Act, 1971, which criminalises the offence of scandalising or lowering the authority of any court, on the ground that it is vague and incompatible with basic features of the Constitution.

On August 13, the Arun Mishra bench permitted the petition’s withdrawal as the petitioners wanted to “approach appropriate judicial forum”. The apparent reason for their request was of course to avoid its dismissal by the bench which was already in the midst of hearing two suo motu petitions against Bhushan invoking the same provision.

Freedom of expression

The Supreme Court initiated the contempt proceedings against Bhushan using its inherent powers under Article 129 read with Article 142 of the Constitution, instead of the Contempt of Courts Act, 1971. However, for a reasonable restriction on the fundamental right to freedom of expression as in the present case, reliance on a law is constitutionally imperative. The court’s action against Bhushan, therefore, makes the constitutional guarantee of freedom of expression otiose.

The Bhushan contempt case has outraged the civil society, with people from all walks of life registering their protest against the Supreme Court’s disproportionate response to his tweets. Venugopal, too, has requested the court not to punish Bhushan, but simply admonish him.

To many observers, by convicting Bhushan, the Supreme Court has diminished itself. The court’s sentence order will show whether it is able to apply the necessary correctives and restore its credibility to some extent. It was clear that the contempt proceedings against Bhushan were a result of complete misreading of his tweets by the bench, leading to erroneous assumptions and inferences. Rather than gracefully admit its failure to properly appreciate Bhushan’s tweets, the bench appeared to dismiss all his concerns, by reserving its verdict on sentencing on August 25. If the Supreme Court punishes Bhushan for these innocuous tweets, it is likely to send a chilling message to all those who wish to fully exercise their much cherished right to freedom of expression guaranteed by the Constitution. That will be a sad day in the court’s history.

Social Issues

Reservation as a political imperative

Litigation and discussions about reservation policies are recurrent in Indian political discourse. More than 70 years after the adoption of the Constitution, one might ask: what is the point of reservation policies?

According to a view that questions the relevance of reservations, India is advancing towards becoming a casteless society. The policies of liberalisation and modernisation have weakened the hold of caste, and caste has been replaced by other markers of identity, such as class, which is the dominant feature through which one understands Indian society.

The invocation of class over caste is also recurrent in demands to have reservation, if at all, dependent on economic criteria alone. The recent 103rd constitutional amendment providing for reservation for economically weaker sections (EWS) is an expression of this view, although it retains a caste dimension by limiting EWS to the upper castes and excluding lower castes and Scheduled Tribes (S.T).

A version of this view argues that reservation, far from helping to reduce the power of caste, retains and strengthens caste divisions. According to this idea, reservation introduces a form of identity politics that makes caste visible, when the goal ought to be the eradication of caste. Making caste, or religion, a topic of discussion is “votebank politics” that divides Indians. This view presents the policy of reservation as a paradox: How can caste-sensitive reservation policies fight caste-sensitivity?

To solve this paradox, we should remember an integral part of the caste system. In Dr B.R. Ambedkar’s words, the caste system is not just a division of labour but a division of labourers. The caste system is divisive insofar as caste is a constant from one’s birth onwards. By virtue of birth, individuals are segregated and assigned in different professions. Endogamy assures that family and social life stay within a caste. The caste system thus ensures a system of segregation.

In Ambedkar’s time, the system worked much like the legal systems of segregation such as apartheid in South Africa and the Jim Crow laws in the American South. It is no coincidence that in both these systems, norms against intermarriage were in place and strictly enforced.

Persistence of caste

Some of the worst excesses of the caste system might have been reduced, but the system is nevertheless unsettlingly prevalent to this day. Data from the comprehensive 2011-12 India Human Development Survey (IHDS-II), which involved over 40,000 households, found that 27 per cent of all households admitted to practising untouchability, with a majority of Brahmin households admitting to it. Education seems to make little difference here; 24 per cent of households with a graduate as a member are still practising untouchability.

Intermarriage, Ambedkar’s solution to break caste, is rare. The same survey found that only 5 per cent of all marriages crossed the boundaries of caste. It should, therefore, be no surprise that India’s society still suffers from a de facto segregation based on caste.

The privileged parts of society are still largely devoid of Dalits and other oppressed castes. A 2019 study of Indian media published by Oxfam and Newslaundry, titled “Who tells our stories matters”, found such a pattern. At the time of the report, all leadership positions in Hindi television news channels were held by upper-caste people.

In a recent article in The Caravan, Namit Arora reports that 96 per cent of all the faculty at Indian Institute of Technology Kharagpur belonged to the upper castes, according to a 2018 response under the Right to Information Act, despite reservation policies.

It is clear that reservation does not introduce caste. Caste already exists in the form of a segregated society in which the top positions are reserved for those from upper castes. The plea against caste-based policies, therefore, fosters a silent caste system. Although caste is not talked about, it is is very much present in the selection of who belongs and who does not belong.

Reservation is imperative for social integration. The alleged paradox is, in fact, no paradox at all. Caste-sensitive policies are needed to break the otherwise silent segregation of Indian society. A casteless society can emerge only when this segregation is broken.

Democracy at stake

The segregation of Indian society is also a threat to democracy. Democracy is a form of self-governance among political equals, and mistrust between caste groups and a lack of understanding of one another threaten this practice. This is why Ambedkar said that genuine swaraj required the abolition of caste.

He brings this to bear while highlighting the value of fraternity. Fraternity is not possible in a segregated society in which castes live side by side instead of together. In Annihilation of Caste, he writes: “(T)here should be varied and free points of contact with other modes of association.... This is fraternity, which is only another name for democracy.”

Universities and institutions of public employment need to bring individuals from all castes together. Only then can they be genuine democratic institutions. Without reservation, this is not possible.

The de facto segregation of Indian society also limits and stifles the prospects of a better life for many people. The obstacles are myriad; some of them reflect the economic disadvantage that Dalits and Bahujans face. The poor state of the public education system virtually forces candidates aspiring for select institutions or public employment to seek private schooling or schools under the Central Board of School Education.

Others reflect the disadvantage of not possessing cultural capital. Command over the English language is a key advantage in access to most positions of privilege in Indian society, an advantage possessed by those groups that are educationally already advanced over many generations.

Lastly, the barriers to progress are social in the form of caste prejudice and caste discrimination, including untouchability.

Reservation, a component of equality

Those opposing caste-based reservation also make another argument, pointing to what they consider a second paradox. How can discrimination be fought with discrimination? The Constitution grants every Indian the equal protection of the laws and the right not to be discriminated against. Even if reservation policies serve the valuable purpose of integration and de-segregation, as well as the purpose of equalising opportunities for all, such policies are nevertheless objectionable if they violate this important right.

For a long time in India’s constitutional history, reservation was understood to be a necessary compromise with equality. This sentiment was conveyed in the Constituent Assembly debates and in various Supreme Court judgments.

But this understanding of reservation is puzzling. It admits that an injustice is done to those missing out on government jobs or university places because seats are reserved for members of backward castes. The state has failed to treat them as equals and discriminated against them. Why should we compromise the great value of equality? Why should the state depart from the idea that rights are universal, and that justice is due to everyone regardless of caste, colour, or creed?

The idea that reservation is a (necessary) aberration from equality is no longer the view of the Supreme Court. Back in the 1970s, the Supreme Court in N.M. Thomas (1975) ruled that Article 16(4), which allows the state to provide for reservation, is not an exception to equality but rather a facet of Article 16(1).

The article, the Court reasoned, is merely an empathic restatement of the fact that the Constitution’s equality code, Articles 14, 15, and 16, allows the state to make reasonable classifications. In deciding whom to select for public employment or university admission, the state needs to distinguish between candidates. Such classifications are innocuous when they are reasonable. In N.M. Thomas, the Court held that some caste classifications, like those inherent in reservation, are indeed reasonable.

Any doubt about this understanding of reservation should have been put to rest by the Supreme Court’s affirmation of this interpretation in Indra Sawhney (1992).

The Court said: “In earlier decisions rendered by the Court till sixties, Article 16(4) was held to be exception to Article 16(1). But from 1976 onwards it has been understood differently. Today, Article 16(1) and 16(4) are understood as part of one and same scheme directed towards promoting equality.”

Therefore, the judicial approach that reservation is an exception to equality is now replaced by the idea that it is a component of equality.

In Indra Sawhney, however, the Court said something more. It held that reservation should not exceed 50 per cent. The Court cited Ambedkar to say that reservation shall be confined “to a minority of seats”. Excessive reservation would breach the principle of equality of opportunity.

But this is curious. On what basis did the Court arrive at 50 per cent as the upper limit for reservation? Ambedkar’s reasoning, which the Court cited, was based on understanding reservation as an exception to equality that cannot be greater than the rule. But once we understand that reservation is not an exception to equality, then the basis for a 50 per cent limit disappears. Nevertheless, the limit was reiterated and followed by subsequent judgments (Nagaraj, 2006).

In addition, consider the following example: Assume that in a region, candidates from the upper castes dominate private employment given the widespread discrimination in the labour market. Most businesses are owned by members from such castes and most educational institutions are comprised of them. In these circumstances, the state decides to give 70 per cent reservation to Dalits and Other Backward Classes (OBCs) considering their abysmal representation in private employment and public sphere in general.

The state is satisfied that the underrepresentation of these castes is established and wants to provide for overrepresentation of Dalits and OBCs in public employment to balance their lower chances in the private sector. The result would be equal chances for employment for every caste. While this seems justified, this appears to violate the arbitrary 50 per cent ceiling limit set by the Court.

Not all caste classifications are alike

Understanding reservation as a component of equality means that some classifications based on caste, like those inherent in reservation, are constitutionally permissible while others, for example a rule that forbids Dalits from entering a government building, are not. To sum it up: not all caste classifications are alike.

But why is one way of treating people differently based on caste acceptable while others are not? The answer lies in the deep-rooted, structural caste inequality that pervades our society. People do not start on equal terms on a level playing field. The status quo is vastly unequal. Ambedkar emphasised this during the Constituent Assembly debates when he said: “We must begin by acknowledging the fact that there is a complete absence of two things in Indian society. One of these is equality.” (November 25, 1949)

What should the Constitution’s equality code mean in a country riddled with such a lack of equality? On a formal understanding of equality, the Constitution takes no note of this background inequality. It holds that equality of opportunity is satisfied when, for instance, a rural Dalit girl with no prior English education and an upper caste boy who went to an international school compete in an entrance test. In deciding that reservation is a facet of equality, the Supreme Court was wise in rejecting this idea.

Moving beyond formal equality means acknowledging the social context. It means looking at equality not in isolation but in connection with societal structures and inherent disadvantages that people face for being a woman or a Dalit.

From this perspective, it is clear why not all caste classifications are alike. Reservation challenges the caste system by integrating society across the boundaries of caste. It is designed to break the segregation that maintains the caste system and ultimately weaken the hold of caste in society.

In contrast, caste classifications that exclude Dalits are designed to subordinate Dalits and prevent them from attaining equal status in society. Such oppression is what the Constitution disapproves of, not the invocation of caste as such.

A fundamental right?

Reservation is certainly permissible under the Constitution. But the big question is whether there is a fundamental right to reservation. This question has dominated the recent constitutional discourse on the equality code.

In Mukesh Kumar vs State of Uttarakhand (2020), the court said that there is no fundamental right to reservation. 

The controversy arose because the State of Uttarakhand refused to gather data on the representation of Dalits in public service and failed to provide reservation to them. Critics of the judgment argued that the State would need to legally justify its refusal to provide reservation by citing adequate representation of Dalits in service.

In contrast, the State of Uttarakhand relied on the wording of the express provision, Article 16(4), and submitted that it was not bound under any duty to provide reservation.

Article 16(4) is worth extracting in full: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

The article states that “nothing shall prevent the State” from giving reservation. The plain meaning of the provision is clear: it allows the state to provide reservation but does not require the state to provide it mandatorily. The constitutional provision, unlike the mandatory provisions injuncting the state from discriminating, such as Article 15(1), is enabling in nature.

The Constitution does not mandate the state to provide reservation: it merely states that if the state chooses to make reservation, the parent provision will not prevent it from doing so.

This is the first problem with conceiving reservation as a fundamental right—that doing so will blur the distinction between two provisions of the Constitution which are contra-distinctly phrased.

When the Supreme Court held in Mukesh Kumar that the constitutional provisions do not confer the right to claim reservation and that the state could not be directed to provide reservation by the courts, it merely upheld a position of law faithful to the Constitution.

Here, it is helpful to make a comparison with the constitutional provision enabling the state to enact legislations of social reform and open access to temples, Article 25(2)(b). It is one of the clauses under the freedom of conscience and religion. Could one say that one has a right to have the state pass a social reform legislation? That simply does not follow. 

Rather, when the state passes such a social reform legislation, it cannot be said to necessarily offend the right to freedom of religion.

Remedy in courts?

In a criticism of the judgment in The Wire, law professor Kailash Jeenger argued that a policy like reservation must not be left to the mercy of the political executive. The implication of this argument is that reservation policies are in better hands with the courts. Given the history of reservation policies, this is doubtful at best.

Consider the complicated history of reservation in promotions. In 1992, in Indra Sawhney the Court limited the rights of Parliament and governments to make reservation policies. Reservation ought not apply to promotions, according to the Court. The Supreme Court cited, among others, reasons of administrative efficiency. This invocation is curious since it relies on a highly speculative account. The only comprehensive study on affirmative action and efficiency in the Indian context is the one about the Indian Railways.

A study by Ashwini Deshpande and Thomas Weisskopf, published in World Development, found that efficiency does not decrease with reservation policies. Rather, it found that a higher proportion of S.C/S.T employees in upper jobs improved performance.

While the Court was quick to judge against reservation in promotions without social scientific evidence, it was Parliament that brought in a constitutional amendment in 1995 to restore reservation in promotions.

Then, in M. Nagaraj (2006), the Supreme Court attached conditions to reservation in promotions and diluted the constitutional amendment. For example, the Court required the state to show the backwardness of the caste, even for Dalits, in spite of the abundance of social scientific works demonstrating its backwardness. This requirement was later dropped in Jarnail Singh vs Lacchmi Narain Gupta (2018).

By attaching further conditions like obtaining quantifiable data regarding inadequacy of representation, with variations from time to time, the Court narrowed the scope for reservation that Parliament evidently desired.

The logic of the Court is also in tension with the later statement in Mukesh Kumar that denying reservation is in the subjective satisfaction of the state. In other words, it is a political choice.

If providing reservation is a political choice, then what is the need for quantifiable data? The need for quantifiable data arises only if one believes that reservation is an exception to an important constitutional right. But this understanding of reservation was rightly abandoned by the Supreme Court long ago.

Reservation as a political project

The reliance on courts may, therefore, be misplaced. Conceiving of reservation as a political project does not diminish its significance. Reservation remains so with sound backing from constitutional values. Part IV of the Constitution deals with the Directive Principles of State Policy, which are essentially norms that must guide governance.

The Directive Principles, while not enforceable in court, emphasise the socialist character of the state. They must entrench state policy. They are important tools to conceptualise a welfare state. They are not antithetical to fundamental rights. These principles and rights need to supplement and complement each other as indicated in Kesavananda Bharati (1973) and Abu Kavur Bai (1983).

Article 38, for example, says that the state shall strive to minimise inequalities in income, status, facilities and opportunities, not only among individuals but also among groups.

Article 46 refers to the state obligation to promote the educational and economic interests of the weaker sections of the people, in particular the Scheduled Castes and the Scheduled Tribes.

The Preamble, which aids constitutional interpretation, likewise refers to a socialist state and socio-economic justice.

Article 340 of the Constitution provides for “appointment of a commission to investigate the conditions of backward classes.” Articles 341 and 342 contemplate a presidential notification enlisting S.Cs and S.Ts which Parliament alone has the authority to change; the Court or the executive cannot alter such entries. The entries are, therefore, final, but subject to future modifications by Parliament.

All of this highlights that it is incumbent upon the state to act and remedy the pernicious influence of caste. It is a demand of political justice that caste inequalities and the hierarchy of castes are weakened and that we move towards a casteless society.

The political project needs to broaden and look at various ways in which caste is reproduced and hierarchy is entrenched. Reservation is one component of this broader project. The comprehensiveness required for the schemes for upliftment of the downtrodden was explained in detail by S. Nagappa in the Constituent Assembly in 1949.

Earlier, on November 30, 1948, during the Assembly debate, H.N. Kunzru said that “the State might come to think that it had done its duty by these [backward] classes by making this provision [reservation]”. Kunzru’s warning appears almost prophetic.

For reservation to be truly transformative, it must be accompanied by a strong commitment to overcome the segregation of the caste system. Only then will Indians be able to live Ambedkar’s vision of fraternity, or, as he called it, democracy.

Kaleeswaram Raj and Thulasi K. Raj are lawyers at the Supreme Court, while Bastian Steuwer is a political philosopher at the London School of Economics.

Staged encounter in Shopian?

ON July 17, acting on specific inputs the 62 Rashtriya Rifles battalion provided regarding the presence of militants at Amshipora village in Shopian district in Jammu and Kashmir, the Indian Army launched an operation. As per the statement the Jammu and Kashmir Police issued on conclusion of that operation, which left three alleged militants dead, there was an exchange of gunfire between the security personnel and the armed combatants.

“During search, terrorists fired upon Army personnel and encounter started. Later on, police and CRPF [Central Reserve Police Force] also joined. During the encounter, three unidentified terrorists were killed. Dead bodies of all the killed three terrorists were retrieved from the site of encounter. The identification and affiliation of the killed terrorists is being ascertained,” the police spokesman said on July 18.

According to this official version, “incriminating materials, including arms and ammunition, were recovered from the site of encounter”. After the encounter was over and the necessary medical and legal formalities were completed, the bodies were taken to Baramulla in North Kashmir for the last rites. Ever since the COVID-19 pandemic erupted in Kashmir, the bodies of militants are not handed over to their families. The administration says this is to prevent the large gatherings that are witnessed at funeral processions of militants. Up until this point, there was nothing unusual about this encounter. Since the launch of Operation All Out in January 2017, the security apparatus has been focussed on a chase-and-kill-the-insurgent policy, which it believes can effectively annihilate militancy from Kashmir’s soil, no matter arguments to the contrary that point to accumulated rage amongst the youths who continue to join the militant ranks undeterred.

In 2019, at least 119 youths took to militancy and 173 terror strikes were reported despite the increased security after Jammu and Kashmir’s special status was revoked on August 5 that year. In the first seven months of 2020, at least 20 security personnel, including a commanding rank officer, Colonel Ashutosh Sharma in Handwara, died in anti-militancy operations. The security grid’s own assessment puts the number of home-grown militants constant at around 120; five boys take up arms every month.

However, now that July 17 operation is being seen as a fake encounter, and three families, roughly 130 kilometres away in Rajouri district of Jammu region, are fretting about their missing sons. Saleem Peeri, a first cousin of one of the slain youths, 17-year-old Ibrar, said: “The family last spoke to Ibrar at around 7:30 p.m. on July 17.” Ibrar, and his 26-year-old cousin, also named Ibrar, had joined another cousin, 21-year-old Mohammad Imtiyaz, in Shopian to work as daily wage labourers. Imtiyaz had gone to Amshipora village a month or so ago, and the two Ibrars thought they could earn some money if they followed suit. Imtiyaz was living at a construction site, but after the two Ibrars joined him, they rented a room.

Twenty-six-year-old Ibrar Ahmed was the son of Mohammad Yousuf, a resident of Tarkassi, while Imtiyaz was a son of Sabar Hussain, a resident of Kathuni Mohalla of Dharsakri. The younger Ibrar lived in Kathuni Mohalla of Dharsakri, near Peeri. His father, Bagha Khan, lives in Saudi Arabia.

According to Saleem Peeri, the three men were using the same phone, which belonged to Imtiyaz. The younger Ibrar had some issues with his SIM card, and the older Ibrar had given his phone to his wife when he moved to Shopian, Peeri said. He shared with this reporter the details of the conversation he had with Imtiyaz and the two Ibrars on the night of July 17. “They said they had just returned from work and were cooking rice. Ibrar told his family members that everything was all right, and they need not worry,” Peeri told Frontline. After that, the three became untraceable. “Their ‘last seen’ status on WhatsApp was at 11:30 p.m. on July 17. The next day when we tried calling them, the phone was switched off.”

Two weeks later, on August 1, when the three failed to call their families on Eid, a decision was taken to file a missing report. Peeri said: “The family members were very upset. Initially, they thought the phone may not be working. But when they did not even call on Eid, we knew something terrible had happened. I lodged a missing complaint at the police chowki in Peeri, which is nearest to our place. The Additional S.P. [Superintendent of Police], Rajouri, Liyaqat Ali, heard us patiently and said an enquiry would be done, but soon their [the three deceased] photos went viral on the Internet. The worst had perhaps come true.”

Since the morning of August 10, social media has been inundated with posts claiming that the three residents of Rajouri who had come to Shopian for labour work had been killed in an alleged fake encounter. As the unremitting chatter snowballed into a controversy, the Army said on the same day that it was probing the matter. “We have noted social media inputs linked to the operation at Shopian on 18 July 2020,” Col Rajesh Kalia, Public Relations Officer, Ministry of Defence, told the media. He added: “The three militants killed during the operation have not been identified and the bodies were buried based on established protocols.”

Meanwhile, the Jammu and Kashmir Police also jumped into action and launched a separate investigation. Local media reports stated that a team headed by Deputy S.P. Wajahat went to Rajouri on August 13 to collect DNA samples of the family members who are claiming the deceased as their kin.

Vijay Kumar, Inspector General of Police, Kashmir Zone, told the media that the DNA samples of the family members would be examined at central laboratories. He did not rule out the possibility that the slain youths could be militants. He told mediapersons that there would be a fair, twofold investigation. “There are two aspects of the investigations. One is matching the DNA and then we will be also investigating whether these youths, who had come to work in Kashmir, had any links with militants. We will be going through their call details and other technical aspects as well,” he stated.

Saleem Peeri and the other family members are firm that they lost their kin in a staged encounter, if indeed the DNA samples match. “How could they be militants? There is not even one FIR [first information report] registered against them anywhere. [The younger] Ibrar had just passed class 11 and was a hopeful student. He went to Shopian to work because he wanted to use the lockdown period to earn money and pursue university studies after completing his 12th this year,” Peeri said. The police team has assured the bereaved families that the results of the DNA sampling would be known in 10 days.

In the past two years, Kashmir has come under serious scrutiny by prominent rights groups. On August 5, Human Rights Watch stated that there have been several “cases of arrests, torture and ill treatment by the security forces”. “Indian government claims that it was determined to improve Kashmiri lives ring hollow one year after the revocation of Jammu and Kashmir’s constitutional status,” it said, adding, “The authorities instead have maintained stifling restraints on Kashmiris in violation of their basic rights.”

The Forum for Human Rights in Jammu and Kashmir, an informal group of jurists, former civil servants, former military officers, academics and human rights experts, stated in July that the “eleven months of lockdown in Jammu and Kashmir has not only resulted in an ‘across-the-board violation of human rights’, it also led to the ‘denial of the right to bail and fair and speedy trial, coupled with misuse of draconian legislation, such as the Public Safety Act (PSA) and the Unlawful Activities Prevention Act (UAPA), to stifle dissent’”. Justice Madan Lokur, former Supreme Court judge, and Radha Kumar, former member of the Group of Interlocutors for Jammu and Kashmir, are the forum’s co-chairs.

A cursory glance at the facts at hand for the Shopian encounter reveals the holes in the official version. If these young men were indeed militants, why would they choose as their “hideout” a place that was so close to an Army camp? The rented room where the deceased were staying is a few hundred metres from the Chowgam camp, which has earned notoriety amongst local people for alleged human rights transgressions. A general discussion with people living in Amshipora and Chowgam also reflects this point of view, said a Srinagar-based journalist who visited the spot on August 12.

According to this journalist, there was a lock on the house in which the deceased were living. “The house owner, Shakeel Ahmed Lone, was not present; his neighbours, scared as they were and reluctant to speak with the media, indicated that it had been some time since they last saw him,” he said. The role of the house owner comes under the scanner when one considers the fact that he apparently kept quiet about his tenants’ “disappearance” for nearly two weeks.

“In a place like Kashmir, deep inside militancy hotbed Shopian, if three of your tenants go missing, how do you do nothing about it?” is the question that is on everybody’s mind in and around Amshipora. Whether Lone was a mole tasked with providing some unscrupulous elements within the Chowgam camp with easy prey is something that only a fair investigation can reveal.

Cash reward

It is pertinent to mention here that generally for every militant killed, a cash reward is given. This has been the source of frustration and fear amongst Kashmir’s residents, especially those living in militancy belts, as this reporter has found out in his numerous field visits across South Kashmir. Allegations of the Army looking for “encounterable” youths and, in some cases, coercing youths to take up the gun are common in Shopian and Anantnag, though next to impossible to prove.

Human Rights Watch has called for an “an independent, impartial investigation into the killings”. “Security forces have long operated with impunity in Kashmir, and past army investigations have been more focussed on shielding those responsible for abuse than providing justice,” said Meenakshi Ganguly, the South Asia director of Human Rights Watch, in a statement. “There can be no end to the cycle of violence in Kashmir if security forces are not held accountable for their past and current abuses.”

The major political parties based in Jammu and Kashmir have also questioned the authenticity of the encounter. The official spokesperson of the National Conference said in a statement: “The entire incident stands mystified due to the diverse versions of the security forces and families of the missing youth. It is highly excruciating to see innocent people losing their precious lives and their blood being spilled.... Only an impartial and time bound inquiry into the matter will reveal the circumstances revolving around the three missing boys... we can only anticipate that justice is served to the affected and circumstances revolving around the killings are made public.”

Iltija Mufti, daughter of former Chief Minister Mehbooba Mufti, tweeted from her mother’s handle: “Shocked to hear about reports of 3 missing labourers reportedly killed in a staged encounter at Shopian. Armed forces have a free hand to operate with impunity. Explains why bodies are allowed to decompose at unknown locations. Probes into recent encounters must be ordered.”

On August 18, the Centre of Indian Trade Unions (CITU) filed a complaint on the matter with the National Human Rights Commission. The CITU expressed serious concerns over the questionable Shopian encounter and demanded a thorough investigation. It issued a statement demanding that the facts surrounding the three missing labourers and the alleged encounter be made clear, that action be taken against the human rights offenders in accordance with the law and that adequate compensation be made to the families of the victims.

Media

Hindutva’s drumbeaters

Ziya Us Salam the-nation

August 5, 2020 will go down in history as the day on which the television’s remote contol was rendered superfluous. Channels across the spectrum sang the same song of unabashed exuberance at the bhumi pujan in Ayodhya as if the Ram temple was part of their long-held agenda. The Congress party was not alone in trying to hitch a belated ride on the Hindutva bandwagon; the media kept it company, even gave it stiff competition at times. Not only the Hindi channels such as India TV or Zee News, but even English channels hopped on to the temple bandwagon with relish. It was not a day to be restrained or modest. It was all about revelling in the moment.

There was no escaping the Ayodhya celebrations, and epithets such as “historic”, “freedom after 500 years” and “moment of national pride” were used through the day on the small screen. It struck no one that Muslims formed part of the nation too and that they could not share the joy of a temple coming up at the site of a demolished mosque.

Sample this: The India Today channel, whose print avatar had called the Babri Masjid demolition “Nation's Shame” back in 1992, now called the foundation stone laying ceremony of the temple “nation’s pride”. It spoke as much about the vicissitudes of politics as the channel’s zeal to play to the lowest common denominator. The channel’s correspondent dug up a report of how the event was being celebrated across the world. “Temples across the United States have announced special events to celebrate the foundation laying ceremony of the historic Ram temple in Ayodhya.” He went on to talk of 3D portraits of the temple and giant billboards beaming them in the iconic Times Square on August 5. It seemed the ceremony concerned the whole world and not just the BJP followers. Then there was a report which called the ceremony “a momentous occasion”. “Shame” was a thing of the past.

“Violation of law”

The report talked unabashedly of “biggest celebration” and “festive fervour”.That a case was going on in the Supreme Court against L.K. Advani, Murli Manohar Joshi and others for their role in the demolition of the masjid did not matter. Forgotten too was the Supreme Court’s judgment last year which said the masjid's demolition in 1992 and its desecration in 1949 were in violation of the law. “Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago,” the apex court noted about the 1992 demolition of the mosque. The demolition “was an egregious violation of the law”, it said.

Nobody asked questions about the significance of August 5 as the day for the bhumi pujan. Was it part of the chest-thumping exercise that followed the bifurcation of Jammu and Kashmir and the abrogation of Article 370 on the same day last year? Was it meant to deflect attention from the obvious failure to control militancy in the State? Or was the bhumi pujan the most important thing as India faced the Covid challenge? Nobody asked. Not in the Hindi media. Not in the English media, as the lines between the two did not just blur, but disappeared.

For decades many Hindi newspapers and channels have gleefully hopped on to the Hindutva bandwagon, running their vehicle parallel to Advani’s rath yatra since 1990. Since 2014, many have acted as the spokespersons of the ruling party, preferring to target the opposition for the abject failures of the government. But the English media, or at least a section of it, maintained a modicum of dignity, a semblance of balance. For more than 20 years, English channels and newspapers referred to the 1992 demolition as the “demolition of the Babri Masjid”. They did not use the expression “vivadit dhancha” (disputed structure), used by Advani and others. But in some sections, the Babri Masjid-Ramjanambhoomi dispute suddenly began to be referred to as Ramjanambhoomi-Babri mosque dispute. Still, a semblance of distance remained.

But on August 5, the fig leaf was blown away in the Hindutva avalanche. The media, a huge part of it anyway, were happy to slip into the role of cheerleaders rather than being an ever-alert watchdog. The viewers had the mortification of watching an anchor like Navika Kumar on Times Now singing “Sri Ramchandra Kripalu” live on TV a few minutes before the actul pooja in Ayodhya as if the show was a celebration and not a mere report of the ceremony. No questions asked. No answers expected. Life was all about living in the moment, soaking it in. Dispassionate jounalism could wait another day.

Not everybody was impressed. Fellow journalist Manisha Pande of Newslaundry dubbed the Navika Kumar-Sambit Patra show on her Twitter account as “TV ‘news’ ki duniya ki Anuradha Paudwal aur Narendra Chanchal” (Anuradha Paudwal and Narendra Chanchal of the TV news world). The noted author Hilal Ahmed put things in perspective: “Faith is internal and spiritual. Display of faith on TV is professional and ideological.”

India Today, Times Now and Republic TV had plenty of company in the form of Hindi newspapers and channels. Dainik Jagran merged its masthead with the photograph of worship at the temple, backing it up with Ram’s words in the Ramayana: “Ram kaju kinhe binu mohi kahan bisham”. Below the eight-column headline was a three-column picture of Narendra Modi lying protstrate in reverence in front of the deity. At the anchor was the story of Dashrath-Kaushalya and the return of Ram. COVID could well have been on Mars.

Dainik Bhaskar tried valiantly to give competition. It too merged its masthead with the lead picture, this time of Modi in the act of public worship. It conveyed the official line that the temple was a symbol of national unity, with the words “Rashtracharitmanas” as headline. Interestingly, it advocated reviving the more inclusive Jai Siyaram as opposed to Jai Shri Ram, which was part of the temple agitation. The paper, too, had no qualms about bringing out a pandemic-free page 1 of the edition at a time when more than 40,000 Indians had succumbed to COVID and close to 60 lakh had fallen victim to the virus.

Coming back to electronic media, India TV came up with “non-stop superfast news on Ayodhya”. The anchors and correspondents were suitably breathless. In another show, the anchor reminded viewers of the role played by Modi as the shepherd of Advani’ss rath yatra. “It was a result of 29 years of patience,” the reporter said. Republic TV managed to find an “expert” who drew a parallel between the destruction of the Bamiyan Buddhas and contruction of Babri Masjid. “The desire to break down a spiritual place of a religion to build one’s own does not attract the mercy of God,” he said, before going on to wax eloquent about the upcoming Ram temple, and how the temple, and not the Taj Mahal, will become a symbol of India.

Honourable exceptions

Predictably, it was left to Ravish Kumar on NDTV India to restore sanity. His bulletin was just reportage. In a sacrilege of sorts, in his hour-long programme he said that Ayodhya belonged as much to Muslims as Hindus. There was also an interview of a Muslim gentleman who had lost a family member and had his house reduced to ashes in 1990.

His was, predictably, the lone voice that restored sanity to an endless chest-thumping on television. That he had only low-profile Urdu newspapers with limited readership for company said it all. Unlike the Hindi broadsheets, Urdu newspapers such as Sahara, Inquilaab and Siyasat did not go overboard with their coverage. They maintained a dispassionate distance, reported on the foundation stone laying ceremony and reported what the Prime Minister said on the occasion. They did not take recourse to sob stories of the Muslim community feeling let down by the nation or give much credence to the extremist faction from the Hindu community.

Such instances of balance and equanimity were few and far between. Otherwise, for the Indian media, August 5was all about catering to the perceived popular mood of the occasion and pandering to right-wing fantasies. Journalism was on vacation.

COVID-19

Tamil Nadu: Ups and downs

Even as sections of the media highlight the brighter side of the situation, such as a very high recovery rate (over 80 per cent) a low death rate, and a high level of testing resulting in detection of a large number of infections, lost in the statistics are the facts that matter: lives are being lost and the fight is still a government-only show. The people of the State appear to be resigned to the new reality, fatigued by the long-drawn-out fight, and are going about their daily lives unconcerned about COVID-19. Mask-wearing is mandatory but in every street, in every shop, one can see people without masks and not maintaining the required physical distance.

All along, the fight against the pandemic has been patchy, at best. Every week there is a new controversy or a new problem. When the pandemic began in March, it was the problem of not being able to get PCR tests done. Then came the artificially created problem of lack of beds in hospitals, and the lack of adequate personnel to run the hospitals.

Even COVID-19 deaths became controversial, with the Health Ministry initially denying any discrepancy in the calculation of deaths and then accepting that there was a mistake. In early August, the State government announced a small number of deaths of doctors but the Indian Medical Association (IMA) put out twice that number. The government refused to investigate the issue, maintaining that the IMA’s numbers were incorrect. It also got the State IMA president to issue a statement.

However, media reports said that the government was not speaking the truth. The medical wing of the main opposition party, the Dravida Munnetra Kazhagam (DMK), claimed that as many as 39 medical personnel had died, and it released the names of those reportedly dead.

Dr Poongothai Aladi Aruna, an opposition MLA, said: “The IMA had released the names, addresses and IMA branch details of the doctors who died from battling COVID. If the government wanted, it could have verified each of the names and put out the facts in just an hour. It chose not to do so. Why?”

Even as this controversy was raging, people who were confined to the districts because of the lockdown were getting more and more restless. They were unable to undertake inter-district travel. Media reports alleged that the e-pass system, which was introduced to restrict the movement of people, was being misused by middlemen.

On the ground, regulating people’s inter-district movement with the e-pass was proving to be counterproductive in that there were allegations of harassment of people who had to travel for genuine reasons. Nor did it help in the spread of infection.

S.P. Lakshmanan, a journalist, said: “Someone I know lost his mother in Tirunelveli the other day. He was in Chennai. He applied for an e-pass soon after he got the news around midnight, and waited for 10 hours because the official would only look at the application at 10 a.m. the next day. The next day he received a response that his application was rejected.” He added that there were many such instances.

Chief Minister Edappadi K. Palaniswami weighed in on the issue on August 6, stating that the e-pass system for inter-district travel was essential because it would curtail unnecessary movement of people. Just a week later, he changed his stand on the issue.

The DMK and the Bharatiya Janata Party demanded that the e-pass system be revoked, but the government refused to accept the demand. However, it eased the process of issuing e-passes in mid-August. Just two days later, as many as 13,853 persons were granted e-passes to travel, according to government data.

Some 1.27 lakh people from the districts entered Chennai from August 1 to 18.

With more people entering Chennai, the number of cases is expected to rise. The city had already recorded a slight spike in cases since August 14. Since then, the daily number of cases has remained above 1,000. Until August 19, 1.2 lakh people in Chennai had tested positive, while the total for the State was 3.55 lakh.

The Statewide count has also not shown any sign of decreasing. In March there were only 124 cases. This rose to 2,199 in April, 20,010 in May, 67,834 in June, and 1,55,692 in July. In the first 19 days of August, as many as 1,09,590 tested positive.

Covid-19 update

Bihar: Election fever amid pandemic

Bihar has had to deal with a double whammy in the past two weeks: increasing COVID cases and a devastating flood. Neighbouring Jharkhand has, in addition to the exponential rise in COVID cases, the serious issue of rehabilitation of lakhs of migrant workers who returned to the State from other parts of India during the lockdown to handle. But the public discourse in both the States has been revolving around the circumstances of the death of Sushant Singh Rajput, the Bollywood actor who hailed from Bihar.

In the past one month, Bihar saw a fourfold increase in the number of COVID cases: from 26,379 on July 19 to 1,12,759 on August 20. The number of deaths too rose from 179 to 568 in this period. But senior State government officials attribute the spike in numbers to increased testing. Bihar has done over 20 lakh tests so far, they say, with the number of tests crossing one lakh in 24 hours in the past few weeks.

“This has helped us in early isolation of infected persons and their treatment. Our strategy has worked, as is evident from the high recovery rate,” said a Health Department official. According to figures released by the Health Department, 84,578 patients have recovered so far, and there are 27,532 active cases. Officials also say the positivity rate has reduced since the first half of July, from around 13 per cent on July 15 to 2.89 per cent now. The recovery rate at present is 73 per cent.

But the opposition refutes all these claims, saying the numbers cited are misleading, considering the density of population. “In a State with over 13 crore people, if you have conducted 20 lakh tests in all, is this good enough? Besides, most of these tests are rapid antigen tests, which even the ICMR [Indian Council of Medical Research] says is not accurate. The number of RT-PCR [Reverse transcription-polymerase chain reaction] tests, which are accurate, is dismal,” said Prof. Manoj Kumar Jha of the Rashtriya Janata Dal.

According to him, even if the high recovery and low death rate figures are correct, the problem on the ground remains serious because facilities for institutional care, which should have been augmented during the lockdown, remain abysmally poor. “Our [Bihar] government thought that the lockdown was a vaccine that would finish corona on its own. They did nothing to create facilities to handle the situation even though it was anticipated that cases would increase after migrant labourers started returning. What to speak of the common man, even for well-connected people getting a bed in a hospital is next to impossible,” he said. Many in Patna corroborated this view.

In Bihar, floods in 16 districts have compounded the problem. With almost all major rivers in spate, people have been forced to abandon their houses and live in crowded shelters, increasing the risk of infection manifold. “Protection from COVID demands social distancing, but floods have created a situation in which social distancing is anathema. You can imagine the plight of the people,” said Jha.

In the midst of all this is the likelihood of elections being announced any day. The Assembly elections in Bihar are due in November. Though all major opposition parties have appealed to the Election Commission to postpone the election in view of the pandemic and the floods, the E.C. has given no indication so far. In fact, senior E.C. officials told reporters that the situation was likely to improve by November and so elections could be held with precautions. Apparently, there are reports that the Commission could even employ out-of-the-box ideas like going for ballot papers or mobile election booths taking electronic voting machines to the people.

But the prospect of elections has completely diverted the attention of the ruling Janata Dal (United)-Bharatiya Janata Party alliance from managing COVID. There are more meetings to plan for the election than for managing the pandemic. In fact, members of these two political parties have become so engrossed in election preparations that social distancing has gone for a toss. Last month, the State unit of the BJP held a meeting of its district-level functionaries at its Patna headquarters, which was attended by over 400 leaders. After the meeting, over 125 BJP leaders, including State party chief Sanjay Jaiswal, vice presidents Radha Mohan Sharma and Rajesh Verma and general secretaries Nagendra Nath and Devesh Kumar tested positive. Jaiswal’s wife and mother also contracted the virus.

Before this, Chief Minister Nitish Kumar’s official residence had turned into a hotspot with 60 persons, including staff and family members, testing positive. Among those infected was Nitish Kumar’s niece.

Though the State government has announced an insurance cover of Rs.30 lakh each for those involved in election activity, opposition leaders are sceptical. “If they are so keen on holding the election on time, they should announce insurance coverage for voters also,” said Manoj Jha. According to him, thinking of elections at this time makes politicians look like “vultures”.

Jharkhand’s woes

In Jharkhand, though lockdown restrictions are in place according to Government of India guidelines, markets and shops are open in Ranchi, traffic on the roads is chaotic as usual, and offices are functioning to full capacity. On July 19, Jharkhand had 5,399 COVID cases; this rose to 26,300 by August 20. Similarly, from 48 the number of deaths rose to 278 in this period. As many as 16,566 people have recovered so far. The State had 9,456 active cases as on August 20.

But the inadequacy of institutional care remains a cause for concern. With only one government hospital, Rajendra Institute of Medical Sciences (RIMS) in Ranchi, catering to COVID patients, the availability of beds is a huge problem. Though district hospitals too have been treating COVID patients, the facilities there are inadequate. Some private hospitals have started reserving beds for COVID patients, but they are too expensive for the common people.

The government has not set up a single new facility for COVID treatment, nor augmented capacity or facilities in its existing hospitals. All it has done is to set up some testing laboratories. “We could have done much better, but we have received no support from the Centre. With our limited resources, we now have eight testing labs while there was none when COVID came,” said Alok Dubey, spokesperson of the Congress, a constituent of the ruling alliance.

According to him, the State has asked private hospitals to chip in, while it has focused on taking care of migrant labourers who returned during the lockdown. Said Dubey: “We have provided employment to lakhs of workers under the MGNREGA [Mahatma Gandhi National Rural Employment Guarantee Act]. For skilled workers, we are contacting private companies and institutions which are keen to employ these people. For farmers, we have started an innovative programme of sending fresh fruits and vegetables grown in our State to Dubai. The first lot was dispatched some five days ago. We could have done much better if we had received some support from the Centre, but even otherwise we are doing our best to manage the crisis.”

But trying to do the best is not enough, as is evident from the ground reality. A telling commentary on the state of affairs in Jharkhand is the fact that even front-line COVID warriors are falling prey to the disease: hundreds of policemen, doctors and other health-care workers have contracted the virus. For common people, RIMS in Ranchi is the only hospital fully equipped to deal with the infection. But it is a tough task to even reach the hospital in time. With only over 900 beds in RIMS, availability of beds is a problem.

Both Bihar and Jharkhand have failed to manage COVID effectively and the common people are now paying the price.

COVID-19 Update

Uttar Pradesh: Casual approach

On the morning of August 20, Uttar Pradesh became the first State in India to start a session of the Legislative Assembly, nearly six months after the outbreak of COVID-19 was officially acknowledged by the Union and State governments in March. Throughout this six-month period, the pandemic raged on in the country’s most populous State, with cases and casualties increasing by the week. The Yogi Adityanath-led Bharatiya Janata Party (BJP) government, meanwhile, made periodic proclamations through the media and other forums lauding its own “contributions in COVID combat”.

The run-up to the three-day Assembly session from August 20 was marked by an unprecedented rise in the number of cases and casualties. On August 19, the State government announced the detection of 5,156 new cases in the preceding 24 hours—the highest single-day spike recorded in the State until then. On August 18, Uttar Pradesh recorded the highest number of deaths in a single day (77). On the eve of the Assembly session, the total number of cases was 1,67,510.

The opposition, especially the Samajwadi Party (S.P.), went all out to draw public attention to these distressing figures. Protesters were out on the streets even before the session started officially on August 20. S.P. leaders and legislators, many of them wearing PPE kits in a symbolic gesture meant to indicate the seriousness of the situation, marched through the streets of Lucknow, demanding more proactive action by the government to control the pandemic and address economic hardships caused by it. The S.P. leadership pointed out that farmers and agricultural labourers were in deep distress and lacked even the means of subsistence. The protesters also called attention to the short supply of fertilizers and demanded that the State government ensure supply of urea and other fertilizers and that the Union and State governments continue with the cash transfer scheme for the poor. Proceedings of the Assembly were stalled several times on account of the protests on August 20.

By the evening of August 20, the State government apparently agreed to hold special discussions on the COVID situation on either August 21 or 24. State Health and Home Department authorities, however, indicated to Frontline that the ruling party would cite statistics in the Assembly session to defend the government’s handling of the COVID crisis. The highest single-day recoveries on August 19 (5,520) was by all indications a major weapon in the government’s arsenal. This number exceeded the number of new cases detected on that day. The government was also gearing up to emphasise that a total of 1,15,227 people had recovered and been discharged from hospitals. On August 19, the active number of cases was under 50,000, at 49,645. The State’s case fatality rate (CFR) was also steadily coming down and was 1.57 per cent as of August 19, marginally below the national average of 1.97 per cent.

Affected politicians

Yet, sections of Health and Home Ministry officials admitted that the government’s response to the pandemic, especially that of the political leadership, was characterised by a sort of casualness and failed to address the different aspects of the pandemic’s impact, including in the medical and social sectors. Some officials pointed out that political leaders had also been afflicted with COVID, which reflected the overall drift in handling the situation. As many as nine State ministers had tested positive, and two of them—Kamal Rani Varun on August 2 and the former cricketer Chetan Chauhan on August 16—succumbed to the virus. On August 19, Atul Garg, Minister of State for Health and Family Welfare, tested positive.

Mahant Nritya Gopal Das, chief of the Shri Ram Janmabhoomi Teerth Kshetra Nyas, the trust formed to oversee the construction of the Ram temple at Ayodhya, contracted the infection. So did Pravin Nishad, BJP MP from Sant Kabirnagar, and Manvendra Singh, BJP MLA from Dadraul.

The case of Mahant Nritya Gopal Das created a stir because he had presided over the Bhumipujan (ground-breaking ceremony) for the Ayodhya Ram temple on August 5, which was attended by Prime Minister Narendra Modi and Rashtriya Swayamsewak Sangh (RSS) sarsangachalak Mohan Rao Bhagwat. Many political, social, and religious leaders from different parts of northern India had attended the function. According to some officials in the State Health and Home departments, although all those who had come in contact with the Mahant needed to be screened, they had no clue about whether anything was being done about it at all. These officials felt that the political leadership was quite indifferent to the public health-related ramifications of the Ayodhya event.

S.P. president Akhilesh Yadav said that this casualness had marked the government’s handling of the crisis throughout. “It has failed to address every single aspect of COVID-19 and its impact, be it public health, economic hardships, agrarian crisis and the plight of the migrant labour. The government has been stumbling from one inept response to another, all the while trying to cover it up by using sectarian and communal politics,” he told Frontline.

However, the government has laid down some strict regulations for the Assembly session. Legislators above 60 (and there are some 60 of them in the 403-member Assembly) have been prohibited from physical attendance. Legislators have also been asked to get their drivers tested for COVID-19. The MLAs are not allowed to carry briefcases or bags inside the Assembly campus. Special WhatsApp groups have been formed for members to communicate with the Assembly Secretariat. All MLAs have been sent a special digital link which they can use to participate online in the Assembly discussions. The live pictures of those participating virtually would be shown on a screen inside the Assembly.

COVID-19 Update

Kerala: Preparing for a crisis

R. Krishnakumar the-nation

Strange as it may seem, COVID-19 and news updates on it are gradually being relegated to the inside pages of newspapers in Kerala just when experts are warning that infections in the State will peak in the next two months.

On August 16, as the State crossed 200 days since the first positive case in the country was reported there, Chief Minister Pinarayi Vijayan said in a message on Twitter: “We are into the 200th day of the COVID19 crisis. Looking back, we can say with pride that this has not been just a period of despair & loss. It has also been a time of courage, compassion, resilience and survival. People of Kerala responded to the crisis with an unflinching spirit.”

The Chief Minister and several of his Cabinet colleagues are in self-isolation since August 14 following a scare about possible infection after their visit to the Kozhikode air crash site. The Chief Minister’s daily COVID press conference, a key element in the government’s strategy to keep the pandemic at bay and build public awareness about the infection, has been suspended since he went into self-quarantine. The Congress-led opposition, obsessed as it is with the government’s good record in handling the COVID-19 crisis until now and the effect it would have in the coming local body elections, has been raising a series of allegations with regard to the gold smuggling case  in order to divert attention, instead of offering constructive support to the government at a time of crisis. In mid-August, Health Minister K.K. Shailaja, quoting experts, warned that from September the State might see an increase of 10,000 to 20,000 cases every day. The death rate, too, was likely to go up if the spread of the virus went beyond the carrying capacity of health care facilities, she said.

A sharp increase in positive cases was noticed by the end of June, and from then on local transmission became the dominant cause of infection, unlike in the first five months when the infection was caused mostly by those who had arrived in Kerala from COVID-affected countries or other States.

On July 31, the State had a total of 23,613 confirmed cases, of which 19,171 were reported that month. But in the first 19 days of August, there were 26,618 new cases. From August 1 to 18, more than 1,100 cases were reported every day. On August 19, the State witnessed the highest single-day spike of 2,333 cases, taking the total number of confirmed cases to 50,231 (17,382 of them being active cases).

The Health Minister said efforts were on to mobilise resources to manage the possible increase in the number of cases. She said health care personnel were appointed, more than 800 first-line treatment centres had been set up, and basic facilities upgraded in COVID hospitals. A COVID Brigade has been formed, with doctors, nurses, paramedical staff and volunteers to run the first-line treatment centres (FLTCs).

While announcing the launch of the COVID Brigade, the Chief Minister said: “We need more people to volunteer, in view of the rising number of cases.”

Kerala is entering another phase in its COVID containment efforts. These include ramping up testing, identifying asymptomatic patients early on and providing treatment, using the police and their resources to trace contacts and manage containment zones, and revising treatment and containment protocols regularly.

The State has followed a centralised and uniform treatment pattern in all dedicated COVID hospitals, which has been an important element of its management strategy. As private sector involvement is expected soon in a big way, the Health Department said it would amend treatment guidelines in order to “streamline the treatment of SARS-CoV 2 infection based on the available evidence from across the world and also based on data from Kerala”. The guidelines would be updated from time to time on the basis of “evolving evidence”.

Meanwhile, in a controversial move in early August, even as it eased lockdown restrictions and limited containment zones to the immediate surroundings of a hotspot as a measure to liberate the economy, the government entrusted the police with the primary responsibility of enforcing quarantine measures and contact tracing.

Many organisations, including the Indian Medical Association, raised concerns about assigning the job of health care workers to the police. Leader of the opposition Ramesh Chennithala approached the High Court to appeal against the move to allow the police to gather call data records of COVID-19 patients, saying it was an infringement on the right to privacy of an individual as laid down in the Supreme Court’s judgment in the K.S. Puttaswamy case.

The opposition said the move was meant to convert Kerala into a “police state”.

The Chief Minister, however, justified the decision as the most effective way to trace contacts, given the increasing number of cases, and said that the State had been using this method for a few months now. He said “the information collected thus will not be passed on to anyone else or used for any other purpose.”

The police, in an explanatory note on August 15, said they were only using technology for effective contact tracing “in a legal manner”. They collected details of tower locations and did not gather contents of calls, they said.

The High Court had not given its verdict on the opposition’s appeal at the time of filing this report.

With the number of cases continuing to rise, the government announced that it would make testing more widespread, as demanded by health experts, “for early detection and management of the disease and for keeping mortality down”. The State spent Rs.1.7 crore every day to conduct tests alone. There were nearly 200 private hospitals or laboratories in the State with facilities for COVID-19 testing using various diagnostic methods. The government has relaxed the norms allowing people to undergo tests in private facilities as well.

Apart from the spread of clusters in coastal areas of the State, urban clusters in slum colonies and an increasing number of institutional clusters, for example, in prisons, are posing a challenge for the managers of the crisis. There is growing concern about non-COVID care in government tertiary care hospitals getting affected, with more health care workers contracting the infection.

The State has recorded a total of 182 deaths. Some people have argued that the figure is higher and that the procedure followed for the classification (coding) of deaths relating to COVID-19 is wrong. A discussion paper published by the Health Department recently denied this claim. It said the cause of death was ascertained on the basis of “international guidelines for certification and classification (coding) of COVID-19 as cause of death”. It said that of the 62 deaths in July, for which audit had been completed, seven were classified as “death not due to COVID infection” because the underlying cause was not COVID infection. The Health Minister is on record as saying: “Only those fatalities in which COVID-19 is the root cause of death can be determined as COVID-19 deaths as per the international guidelines.”

COVID-19 update

Haryana: Shifting hotspots

T.K. Rajalakshmi the-nation

Haryana was among the few States that enforced COVID lockdown measures strictly. Apparently, it even amounted to the harassment of migrant labourers on way to work and health workers moving from place to place. Inter-State borders too were sealed following a large number of cases being reported in districts that formed part of the National Capital Region (NCR), adjoining Delhi, on the grounds that the movement of people to and from Delhi into these districts caused the spike in cases. For most of April, May and June, Gurugram, Faridabad and Sonipat districts in the NCR, all of which are industrial and employment hubs, accounted for a high concentration of cases. But all these measures do not seem to have had the desired effect. Apart from a sharp rise in the rate of new cases of infections and deaths in these districts, the infection has spread to other districts too.

According to the State COVID-19 bulletin, as on August 18, as many as 557 persons had died (396 males and 161 females) and there were 896 new cases. Of those who died, 397 persons had other illnesses. On August 19, the number of cases went up to 994. As many as 155 patients were on critical care; 136 patients were on oxygen support and 19 were on ventilators.

Haryana was ranked 15 among among 35 States and Union Territories in the number of COVID cases. It had more cases, but fewer deaths, than Punjab, Madhya Pradesh and Jammu and Kashmir. Uttar Pradesh, Delhi and Rajasthan were on fifth, sixth and thirteenth positions respectively among States reporting a large number of cases. So the daily spike of more than 800 cases in mid-August in Haryana is worrisome.

Faridabad, Panipat, Gurugram, Rohtak, Panchkula, Karnal, Rewari, Sonipat and Kurukshetra districts account for 58.7 per cent of the cases now. The doubling time overall has been 30 days. That in itself is not worrying, but the fact that the infection rate is growing at 1.9 per cent every day is a cause for concern.

Spread to newer areas

From the more populated districts in the south of the State the infection has now spread to the less-populated districts in the north and north-west areas. With inter-State borders now open and attendance in government offices going up, the centre of infection has also spread accordingly. Yamunanagar, Panchkula, Panipat and Kurukshetra have recorded the sharpest growth in the number of cases in a month. For instance, on July 19, there were only 148 cases in Yamunanagar. Within a month, this went up to 830. In Panchkula, from 250 confirmed cases on July 19 the number went up to 1,313 in a month’s time. Kurukshetra and Panipat too displayed similar trends.

While almost all districts have reported an increase in the number of cases for most of August, in the districts designated as hotspots in the early phases of the pandemic the numbers seemed to be plateauing. The return of migrant workers is seen as one of the reasons for the spike in the less-populated districts, though to what extent it has contributed is not clear.

Testing in Haryana has also been inadequate compared with neighbouring States. It had done fewer tests than Rajasthan and Delhi, but was on a par with Punjab, Jammu and Kashmir and Telangana.

Victims of apathy

Frontline spoke to rural health workers who said district hospitals were in bad shape and people were averse to getting themselves tested because of the stigma attached to the disease. Sunita Rani, general secretary of the Accredited Social Health Activist (ASHA) union, told Frontline that health workers had been on a strike for one week as their incentives had been slashed. She said many ASHA workers had contracted the virus, but the government paid scant attention to their health or immunity requirements.

She narrated an example of a worker from Kaithal and her daughter who had contracted the virus. Neither of them received treatment at the Post Graduate Institute of Medical Sciences at Chandigarh, she said, but had to seek help from a hospital in Patiala in Punjab after a relative’s recommendation. “The government did not help her. Health workers have been helping each other,” Sunita Rani said.

She said there were four workers in her knowledge who were battling cancer and one who had a brain hemorrhage. The workers did not have health insurance nor was the government providing any help. The health workers were also asked to register themselves under the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana, which provides vulnerable sections cashless cover of up to Rs.5 lakh per family per year. “One worker who had registered under the scheme took her son to an empanelled hospital where the hospital administration said they would cover only Rs.20,000 of the costs. She had to shell out Rs.2.5 lakh from her pocket for the medical expenses,” she said.

Besides, the health workers routinely faced harassment when they went to collect samples for testing. “People are afraid to get tested as they do not trust government facilities. There are a large number of people who are definitely infected but are not seeking treatment,” Sunita Rani said. There were no proper facilities in district hospitals, including ventilators, medicines or medical staff, she said.

The problem was compounded for pregnant women who were unable to get regular check-ups as government hospitals had been converted into COVID centres. They had to get their ultrasound scans done from private facilities.

Just as in most of India, health care in Haryana is dominated by the private sector. Yet most of the critical cases are being treated in government medical facilities located in urban centres. The state of primary and secondary health care centres and that of district hospitals has not inspired confidence among people to report symptoms and seek treatment. With a high daily average of COVID cases, Haryana cannot afford to remain complacent, especially with the development of new hotspots.

COVID-19 Update

Karnataka: No let-up in cases

The number of COVID-19 positive cases has been rising steadily in Karnataka. The State, which reported its first case on March 8, had a cumulative total of 2,40,948 cases as on August 18, 79,782 of them active, and 4,021 deaths. Since early August the number of cases reported daily has been on the increase, with the highest numbers being reported on three days in the second week—7,883 on August 12; 7,908 on August 14; and 8,818 on August 15.

More than 80 per cent of the deceased reported symptoms of severe acute respiratory syndrome (SARI) or influenza-like illness (ILI). Karnataka now has the fourth highest number of cases in the country after Maharashtra, Tamil Nadu and Andhra Pradesh.

With 94,106 cases, 33,081 of them active, Bengaluru Urban continues to have the largest number of positive cases in Karnataka. Bengaluru city has been reporting on an average more than 2,000 new cases every day and has recorded the highest number of deaths (as on August 18) at 1,532. The highest number of cases were reported from the city’s west zone, covering 50 square kilometres and having a population of 18 lakhs. Parts of the zone are densely populated, which has given rise to fears of the spread of the virus.

Contact tracing has become impossible owing to staff shortage. Deputy Chief Minister C.N. Ashwath Narayan, during a conversation with mediapersons, said: “Primary contacts get traced within two hours. Tracing secondary contacts is the challenge.”

Other districts that have reported a significant rise in the number of cases include Ballari (15,180), Mysuru (11,489), Kalaburagi (9,265), Dakshina Kannada (9,296) and Udupi (8,663). The swift rise in the number of cases in June and July can be understood when one looks at the timeline of the pandemic in Karnataka. The State took four and a half months to report one lakh cases, the tally it reached on July 27. And then it took only 17 days to report another one lakh cases on August 13.

Testing ramped up

The increase in the number of cases is directly linked to the increase in testing. Testing was ramped up in the State in August with close to 50,000 tests done every day in 101 laboratories across the State using both RT-PCR and rapid antigen methods. A total of 21,34,174 samples have been tested in the State. The Bruhat Bengaluru Mahanagara Palike (BBMP) introduced free testing in the city but there were complaints that many designated fever clinics had run out of testing kits. There were also complaints of delay in getting the test results, which took anywhere between three and eight days. According to information from the Health Department, the State has ordered 10 lakh rapid antigen kits to address the shortage. Officials said the delay in testing was because of the backlog accumulated since early July.

Even as the number of cases continued to rise, a decline in the positivity rate was noticed in Bengaluru along with a slight decline in the daily number of active cases. The BBMP uses a moving average rate of seven days and 30 days to ascertain the spread of the virus.

According to the data shared by the BBMP COVID-19 war room, the test positivity rate (positive samples among total samples tested) has been falling consistently since it peaked in mid-July. The data revealed that the positivity rate in Bengaluru was down to 18 per cent in August from 24 per cent in July. (The State’s positivity rate is 15.3 per cent.) The death rate has also dropped in the city. N. Manjunatha Prasad, the BBMP Commissioner, attributed this to “increased testing which is helping us to detect cases early and provide treatment in the early stages itself.” Dr Giridhar Babu, epidemiologist and member of the State’s COVID-19 Task Force, said, “Bengaluru has seen the highest fall in the death rate whereas other districts have also seen a slight fall in the death rate.”

Two other developments that are seen as positive in Bengaluru are the decline in the demand for hospital beds and admissions to COVID care centres (CCC). According to the BBMP’s live status of hospital beds available for COVID-19 patients across government and private hospitals, almost 50 per cent of the 5,802 hospital beds are available but intensive care units (ICUs) are still reporting an occupancy of more than 90 per cent. A statement by the Private Hospitals and Nursing Homes Association in the city has requested the government to free up the beds which are currently reserved for COVID-19 patients so that they can be used for other patients.

With clarity emerging in home isolation protocols, more and more asymptomatic patients were opting to remain at home. As a result, five of the 11 CCCs in Bengaluru, including the 10,000-bed one at the Bangalore International Exhibition are likely to be wound up. Complaints about the lack of facilities at the CCCs is said to be one of the factors responsible for people opting for home isolation.

Dr Srinivas Kakkilaya, a Mangaluru-based general physician who recently published a book on COVID-19 in Kannada, said he expected the number of cases to start falling in Bengaluru “in another month”. He said in other parts of the State it could take some more time depending on the extent of the spread of the virus in the community. The COVID-19 Task Force has recommended that a sero-survey be done to ascertain the extent of community transmission. This is a viable option, according to sources in the Health Department.

Covid-19 update

Delhi: Pandemic politics

Divya Trivedi the-nation

Public celebrations in the national capital on August 15 this year were muted owing to the coronavirus pandemic. Desperate to get back to normal life after the fatigue induced by the lockdown of three months, some people welcomed Independence Day with gusto on their terraces, flying kites and socialising with family and friends.

But Delhi should not get complacent, warned Dr Srinivas Rajkumar T of the All India Institute of Medical Sciences (AIIMS) in Delhi. “We are in a better situation than before, since mid-July. Now there are around 1,000 cases consistently every day. This will continue. But infection will spread through new demographic shifts, when people go to office and malls or resume social activities, or when the elderly get exposed, which will lead to isolated spikes,” he told Frontline.

The AIIMS administration had sent the senior resident doctor in the department of psychiatry a show-cause notice after he criticised in a tweet the substandard quality of the personal protective equipment (PPE) provided to AIIMS health-care workers. “If you can prove my tweet wrong, I will accept I am wrong, but it has been two months and there has been no response from the hospital,” Dr Srinivas said, adding that the show-cause notice was aimed at intimidating him into silence.

Around 200 doctors, nurses, guards and sanitation workers at the AIIMS had tested positive for COVID-19, he said. While the quality of the masks and PPEs had improved incrementally after the staff went public with the shortcomings, there was still no concrete change in the way the outpatient department or other departments of the hospital functioned, he said.

In June, the Delhi government predicted that coronavirus cases in Delhi would touch 5.5 lakh by July end. Deputy Chief Minister Manish Sisodia then warned that the city would need 80,000 hospital beds to accommodate all the patients. But the prediction went wrong.

‘A long way to go’

By August 17, Delhi had recorded a total of 1,52,580 cases, which in itself is an alarming number, but far short of the prediction. Chief Minister Arvind Kejriwal said the COVID situation in the city was much better now, but there was still a long way to go.

Delivering his Independence Day speech at the Delhi Secretariat, he attributed the decreasing COVID numbers to the Central government and non-governmental organisations (NGOs) and thanked them for their collective efforts.

In a competitive bid to politicise the pandemic, both the Aam Aadmi Party (AAP), which rules Delhi, and the Bharatiya Janata Party (BJP), which holds power at the Centre, touted the “Delhi model” as exemplary and took credit for it. Prime Minister Narendra Modi suggested that other States follow the “Delhi model” in the fight against the virus.

In June, as the numbers in the capital rose at an alarming rate, Union Home Minister Amit Shah chaired a meeting with Delhi government representatives and the Lieutenant Governor to chalk out a plan to contain the pandemic. Shortly after the meeting, Delhi’s Health Minister Satyender Jain tested positive for COVID-19 and over a month later Amit Shah, too, tested positive.

After the first COVID case was detected in Delhi in March, it emerged as a national hotspot, exporting infection to other States. June saw the highest surge in COVID-19 cases, with the daily count reaching 4,000 on June 23. The number of casualties was also the highest in that month as was the extent of shortage of hospital beds and testing kits. The unprecedented health crisis forced the BJP and AAP governments to work together.

Since then, the number of new cases has steadily declined and remained below 1,500 in the past month. Health-care workers said Delhi had managed to bring down the number of daily infections even if it had not yet tamed the virus.

See-sawing graph

Delhi’s COVID-19 graph see-sawed in mid-August after dipping consistently for a month. But Kejriwal maintained that the positivity rate and the death rate had decreased in Delhi even as the recovery rate increased. By August 16, the recovery rate was 90 per cent, which the government iterated to prove the improvement in conditions.

However, the recovery rate was not a good measure of infection spread as it was bound to go up as a function of time and gave a false sense of improvement, said Dr Srinivas. While the infection rate seemed to have fallen in Delhi, the actual numbers were far higher than what was recorded, not because of the failure of the government or science but because of people’s behaviour, he said. Only people with serious illnesses were going to hospitals. Asymptomatic patients or the ones with mild symptoms were stayed at home, he said.

Besides, antigen tests had largely replaced RT-PCR (Reverse transcription-polymerase chain reaction) tests, despite the Delhi High Court stating that antigen tests should supplement and not substitute RT-PCR tests as they were more reliable. Not everyone had an antibody response, so sometimes the infection could get missed in an antigen test, said Dr Srinivas. Of 100 infected persons, only 60-80 per cent would have an antibody response, he explained. Until mid-August, as many as 13,02,120 tests had been conducted in Delhi.

The total number of containment zones in Delhi until August 15 stood at 538. On July 27, the number was 715, but in just four days the zones were scaled down to 496 after Kejriwal expressed concern over the large number of zones. He hedged his claims over the improving situation and advised people to remain vigilant as the coronavirus was unpredictable and there was considerable uncertainty over what might happen.

“If the situation goes out of control again, the Delhi government is fully prepared to deal with it,” he said while inaugurating a 200-bed hospital for COVID patients on August 9. This was the second hospital that was inaugurated during the pandemic. But schools would not be reopened until the circumstances were conducive to that, he said.

COVID-19 Update

West Bengal: Hospitals come under fire

The Trinamool Congress government has announced a number of steps to bring the raging pandemic under control but has been found wanting in terms of its response on the ground. The 3,000 odd new cases every day, and the average daily COVID mortality rate of well over 50 are enough for allegations that the government is struggling to handle the situation.

An important step the government has taken is to establish a COVID Patient Management System (CPMS) for hospitals. This system is aimed at facilitating admission of patients, providing information on facilities available, and updating family members of the patient’s condition. Announcing the establishment of this new system on August 17 at a press conference, Chief Secretary Rajiva Sinha said: “Our COVID-19 health-care system is good and this new mechanism is unique. It is one of the biggest steps of the government.” The facility can be accessed through the State government health portal—www.wbhealth.gov.in.

The CPMS comes in the backdrop of allegations that hospitals were turning patients away and that once they were admitted, family members were not able to find out how they was doing. According to Rajiva Sinha, the new system would also “help ensure transparency”. As of August 18, the CPMS was in place with respect to three COVID hospitals in Kolkata. It was announced that by the fourth week of August, 84 more hospitals would be brought under its purview. The State government also announced that oxygen support would be available in all the 11,775 COVID beds in the State.

Talking about some of the steps taken by the government, Chief Minister Mamata Banerjee said at a press conference on August 17: “We have set up a plasma bank, a monitoring cell, and we have joined hands with Calcutta University for the purpose of medical counselling. Apart from this, in every district we have deployed 1,500 of our COVID warriors—including those who have recovered from COVID – and they are of great help. We have a cord blood bank, which is not there in many parts of Asia…. Many of our doctors, including some who have retired, are touring the districts…. Our health workers, municipality workers and police are going from house to house every day to help people with their problems. We are trying in different ways to ensure that people remain safe and healthy.”

The State has also stepped up its COVID testing, with well over 30,000 samples being tested every day from the second week of August. Until July 31, this number was below 20,000 a day. As of August 18, as many as 13,32,198 samples had been tested, including 35,107 on August 18 alone. The rate of testing in West Bengal stood at 15,358 per million of the population. Around 80 per cent of the tests are the RT-PCR test, while 20 per cent are rapid antigen tests. Between August 11 and 18 the State added seven more laboratories that test for COVID-19, bringing up the total number of such laboratories to 68.

There are at present 84 COVID hospitals (29 government hospitals and 55 private hospitals requisitioned by the government) in West Bengal, with 11,775 beds. According to the government, the occupancy rate in the COVID beds is a mere 36.82 per cent (as of August 18). Mamata Banerjee claimed that only 5 per cent of those infected were “serious cases that required hospitalisation”, and 89 per cent of the patients were recovering at home. The discharge rate, as of August 18, stood at 75.51 per cent, with 92,677 so far discharged. According to the State government, the mortality rate has come down to 2 per cent from 4.5 per cent.

However, the number of COVID cases has been increasing at an alarming rate, and the number of people dying every day is also very high. As of August 18, the total number of COVID cases in Bengal stood at 1,22,753, including 27,668 active cases. On August 18 itself, 3,175 new cases were registered. The total number of deaths due to COVID stood at 2,583 on August 18, including 55 deaths on that day. .

Moreover, there have been numerous allegations of patients being denied admission and treatment in government hospitals; of treatment being delayed either because of callousness or because of elaborate procedures that patients find confusing; and lack of facilities and poor conditions inside government establishments.

On August 11, a COVID patient under treatment in a government hospital in Howrah managed to send a video message outside, pleading for help. Gasping for breath and in obvious physical distress, she said, “The people in the hospital are not doing anything for us. Please share this video and let the media know what is happening here.” The video went viral, prompting government authorities to finally visit the hospital. The hospital authorities denied any instance of negligence on their part.

More recently, on August 18, the day after the CPMS was officially launched, distraught family members of an 80-year-old COVID patient, who had been admitted in the Calcutta Medical College on July 31, complained that they had no idea about the condition or even whereabouts of the patient. One of them said: “They are not telling us anything. Not even the bed number. We have been going from one department to another from morning till evening. There is absolutely no news of her.”

This was not the first such instance in the State. Commenting on the incident, Archana Majumdar, Senior Chief Medical Officer in eastern and north-eastern India, told Frontline that such incidents made it clear that there was no coordination between the different wings of the hospital and between the hospital authorities and the patients’ families.

The situation in government hospitals has been forcing common people to get admitted in private nursing homes, which is financially unaffordable for poor and most middle-class patients. The State government claims that it is providing “free treatment” for COVID patients in public hospitals and private establishments requisitioned by the government. But Archana Majumdar pointed out that the majority of those who got admission in government-requisitioned hospitals were VIP patients or those with high-placed connections. “The poor people are helpless and it is the failure of the State government that it has not been able to provide service to them. They continue to be harassed,” she told Frontline. According to reports, private hospitals in Kolkata are charging anywhere between Rs.50,000 and Rs.1 lakh a day. There have been complaints of private hospitals demanding as much as Rs.3 lakh as deposit for admission. Recently, a well-known private hospital in Kolkata reportedly charged a COVID patient Rs.19 lakh.

Amid public outcry over inflated hospital bills, the West Bengal Clinical Establishment Regulatory Commission put a cap on the advance that hospitals could charge. Earlier, the State government had fixed a uniform rate on COVID tests. However, Archana Majumdar feels these steps are not likely to make any difference. “These are just advisories, but no private hospital is actually paying any heed to them,” she said.

COVID-19 Update

Maharashtra: Road to recovery

Lyla Bavadam the-nation

On Independence Day, Maharashtra Chief Minister Uddhav Thackeray made a bold promise to rid the State of the coronavirus. Large advertisements in mainstream newspapers declared: “Our Independence Day Resolve! Corona-free Maharashtra!”

While the State has done a relatively good job of keeping the virus in check, as much as a pandemic can be kept in check, the declaration was seen as rash by some. A Health Department official said it could have been worded differently and “without making a promise that was really not in our hands”. A Congress functionary said Uddhav Thackeray has “handed them a stick to beat” him with, referring to the “unnecessary handle” the advertisement gave the opposition. The advertisement apart, general public opinion is in favour of the State’s handling of the virus so far.

A Brihanmumbai Municipal Corporation (BMC) officer who has been involved with planning the line of attack against the virus right from the start says: “This virus is here to stay. We will have to learn to live with it. The proverb ‘If you live by the water, make friends with the crocodile’ is relevant right now. That is our situation. We cannot stay in lockdown. We cannot open up totally. So, we advise people to live with caution.”

That has been Uddhav Thackeray’s line throughout. On August 16, he held a virtual interaction with Dr Rahul Pandit and Dr Shashank Joshi of the COVID-19 task force and said the process of lifting the lockdown in the State would be gradual. He said the threat of COVID persisted. “It is more important how to lift the lockdown than when to come out of it. Those who did it hurriedly had to impose it again. I don’t want a second wave of the virus in the State,” he said. “The second wave comes when we pat ourselves on the back for having controlled the coronavirus and become complacent.” Officially, some parts of the State remain under lockdown, which is expected to be fully lifted on August 31.

While the reopening of schools has become a much-discussed matter, Thackeray is firm on keeping them closed. In his virtual meeting with the COVID-19 task force, he said he knew that the poor were missing out on education because of lack of access to the online world, but he noted that it was better than subjecting children to the possibility of getting infected by sending them to school.

The decision is supported by data collected by Maharashtra’s Public Health Department. The data show that people below the age of 20 account for 11 per cent of the total cases of infection in the State though only 0.5 per cent of those who died were aged 18 or less. The State had 23,995 cases under the age of 10 and 42,529 in the 11-20 age group. Another reason to keep children out of schools is that they could become carriers of the virus and infect the elderly at home.

Thackeray’s one-step-at-a-time approach seems to be a judicious one. A bureaucrat who was part of the COVID-19 task force at the peak of the crisis but now holds another post says Uddhav Thackeray had to resist “huge pressure” to do things faster. “Fortunately, he took the counsel of doctors, some bureaucrats and his own understanding of the situation. It did not make him popular for a while because public opinion was built up against him by the opposition, and a section of the media was also critical, but I think most people now value the decisions taken earlier,” he says.

Maharashtra and Mumbai seem to be on the road to recovery. A heat map prepared by the Department of Economic Affairs in the Union Finance Ministry bears this out. The map correlated electricity consumption, e-way billing and Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) work creation in May and June with renewal of economic growth of States across the country. It found that States with good control over the virus had better economic recovery. Out of the three indicators, Maharashtra had the highest scores in all except MGNREGA work creation.

There are signs of recovery all around. Civic hospitals are now beginning to shift their focus to other ailments that were neglected during the corona crisis. Two of Mumbai’s premier public hospitals, the King Edward Memorial Hospital and BYL Nair Hospital, have opened non-Covid out-patient departments (OPD). The patient count is around 20 cases a day because of obvious apprehensions, but hospital authorities believe it will soon be back to the usual 200-plus OPD cases a day. There are delays in elective surgical procedures because doctors of public hospital are almost fully on COVID duty. In another step towards restoring normalcy, inter-district bus travel will commence soon after five months of closure. So far travel has been permitted only with special passes.

The mood in Mumbai, the State’s economic powerhouse, is definitely positive. The restarting of commercial activity brings some hope of economic stability. Empty shop premises and torn-down signboards where rentals had become unaffordable are reminders of the economic disorder, but these, it is hoped, are things of the past.

The Ganpati festival, traditionally a time of big spending in Maharashtra, will be a subdued affair this time, but the very fact that it is being celebrated is a sign of recovery. The government has issued directions for the celebrations, which include home visarjan (immersion) of small-sized Ganpati idols, no large processions and no public Ganpati pandals. A novel book-your-time-slot for immersion scheme has been created by civic wards across the Mumbai Metropolitan Region. Mumbai’s Chowpatty beach received 1,550 applications in the first two days of the scheme.

Support for this subdued celebration comes from the large Ganpati mandals, who have deferred celebrations. One concession has been made though: permitting people to travel to their homes in the Konkan, where the festival is a big occasion. As many as 162 Ganpati special trains have been sanctioned, but, surprisingly, the passenger strength has been a low 20 per cent. This is attributed to a fear of travel and the possibility that most people had left for their home towns months ago.

The final indicator of normalcy in Mumbai will come, of course, when the local train service can be accessed by all and not just those with essential services passes. Officials say that will take some time. But Mumbaikars, by and large, believe that the worst is over.

COVID-19 Update

Odisha: Focus on fundamentals

Prafulla Das the-nation

Despite the spike in the number of COVID-19 cases in Odisha in the first fortnight of August, Chief Minister Naveen Patnaik has expressed confidence that the State will soon turn the situation around. In his address at the Independence Day celebrations, Patnaik commended the role of COVID warriors in ensuring low fatality and high recovery numbers in the State.

The Odisha government has been striving hard to extend all possible assistance to those who have contracted the infection. As the number of cases rises, the administration has ramped up testing, tracing and tracking across the State. Testing laboratories have been set up in different regions to collect and test samples. Rapid antigen testing camps have also been set up in urban areas and places with high population density.

With 50,421 tests conducted on August 16, Odisha was positioned at No. 5 in the country in terms of testing numbers. By August 17 midnight, the State had totally conducted more than 10 lakh tests. On August 18, Naveen Patnaik tweeted: “Glad to share that we have crossed one million COVID-19 test milestone. Thank everyone who worked tirelessly to scale up testing facilities in short time and ramp up testing expeditiously to intensify our fight against the pandemic and save precious lives.”

In terms of tests, Odisha was doing 1,096 COVID-19 tests per million per day, which was the highest among the larger States, according to senior government officials. The national average was 542. The officials said that the State intended to further increase testing in a phased manner and that the positivity rate had started coming down drastically.

About 10,000 tests were conducted in the State on July 21 and the number of positive cases was 1,078 with 10.78 per cent test positivity. Over the next three weeks, tests were increased to nearly 50,000. However, the number of new cases was 2,496 on August 14, and the positivity rate had come down to around 5.2 per cent. The number of positive cases per 10,000 tests had come down to around 500, and this reduction was drastic and achieved quickly, according to the senior officials.

In the second week of August, the State increased tests from around 20,000 to almost 50,000 within just five days in spite of logistical problems in the supply of test kits.

Odisha’s fatality rate, at 0.58 per cent, continues to be among the lowest in the country; dedicated hospitals, care centres and homes established across the State have made this possible. The State is giving priority to plasma therapy to save lives. As many as six plasma banks have been set up in major cities across the State and many patients have recovered completely after plasma therapy. Each plasma donor can donate up to three times and save up to six lives.

COVID-19 treatment is being provided free of cost through partnerships with reputed private hospitals. The State has set up 48 COVID hospitals and 178 COVID care centres, apart from the 17,647 temporary medical centres for quarantining migrant workers at the gram panchayat level. The government has also set up its own COVID hospitals in districts where partnership with private hospitals is not feasible.

On August 2, the government responded to the steep rise in the caseload by allowing private hospitals, nursing homes and laboratories to conduct COVID-19 tests through Rapid Antigen and reverse transcription-polymerase chain reaction (RT-PCR) methods as per the Indian Council of Medical Research (ICMR) norms.

The government instructed private health establishments to share test results with the administration before releasing the report to the person from whom the sample was collected. Private institutions could charge a maximum of Rs.450 for rapid antigen tests and Rs.2,200 for RT-PCR tests.

It was observed that non-COVID patients undergoing treatment in private hospitals became COVID-infected during the process of treatment. So on August 7, the government allowed private hospitals with 30 or more beds to treat COVID-19 patients. The hospitals were cautioned not to collect exorbitant fees and warned of strict action in case of any violation.

Meanwhile, the administration is paying special attention to worst-affected districts such as Ganjam and Khordha. Though several front-line workers have died of the disease, the high recovery rate has kept up the morale of the people.

As of August 17, Odisha had conducted 10,09,454 tests and a total of 64,533 people had been found positive. As many as 43,780 of them have recovered, while 20,338 are under treatment. A total of 415 people have died – 362 owing to COVID-19 and the remaining 53 owing to other ailments.

Economic activities are slowly reviving in the State as lockdown restrictions get lifted in phases. Of the lakhs of migrant workers who had returned home from distant towns in other States after the nationwide lockdown was announced in March, some have started returning to their places of work but the majority of them have engaged themselves in agricultural activities in their villages.

After the initial few weeks of the lockdown, the agriculture sector has displayed resilience. There has not been any report of farmers’ suicide in the State in recent months. Migrant workers face some uncertainty, but farmers in general are happy with the government’s welfare measures, in particular the Balaram scheme launched in July. Under this new scheme, the government will provide agriculture credit worth Rs.1,040 crore to seven lakh farmers in groups in the next two years.

COVID-19 Update

Madhya Pradesh: Votes over virus

Anando Bhakto the-nation

In election-bound Madhya Pradesh, politics has taken centre stage even as COVID cases are about to hit the 50,000 mark. Chief Minister Shivraj Singh Chouhan, who has just recovered from COVID-19 infection, is back to populism, announcing one sop after another with an eye on the byelections to 26 Assembly seats. The elections are necessitated by the resignation of 24 Congress MLAs and the death of two legislators, one from the Congress and the other from the Bharatiya Janata Party (BJP). As on August 17, the total number of positive cases in the State stood at 45,455 and related deaths at 1,105.

Far from evaluating the success of the ongoing COVID control programmes, Chouhan used the Independence Day speech to woo the electorate, vowing to reserve jobs for the local people and promising a waiver of loans taken until August 15 by the poor from moneylenders at usurious rates. Speaking at the Independence Day celebration in Bhopal, Chouhan said that his administration was committed to preparing a single-citizen database so that people would not have to register themselves separately for different government programmes. He emphasised that given the prevailing state of unemployment, his government would give preference to the natives of Madhya Pradesh in allocating public sector jobs.

Aware that the government’s mishandling of the migrant labour crisis during the pandemic had dented his appeal amongst rural voters, Chouhan announced several pro-poor schemes and initiatives. He also sent out strong feelers to the Other Backward Classes (OBC) that his government was preparing to present a sound argument before the court, which was hearing the pleas with regard to the hike in the OBC reservation quota from 14 per cent to 27 per cent in government jobs and educational facilities. His other populist measures included distribution of free laptops, free education for the meritorious, and disbursement of Rs.1,300 crore as loans for women self-help groups at 4 per cent interest.

COVID situation out of control

While his pro-poor blitzkrieg may give him electoral dividends, the COVID situation seems to be going out of control. Indore, which had been the epicentre of the pandemic in Madhya Pradesh, was again hit badly. On August 15, as many as 214 new cases were reported in Indore, which is also the State’s financial hub. This takes the COVID tally in the city to 9,804 and the total number of deaths to 342. Across Madhya Pradesh, August 16 witnessed the highest single-day spike with 1,022 new cases.

The opposition Congress expressed dismay at the Chouhan administration for not allotting the State’s districts to Ministers for coordinated execution of COVID-control programmes despite the extraordinary situation. The party’s State spokesperson Abbas Hafeez Khan told Frontline, “The district administration is always answerable to the Minister in charge, but it is for the first time that none of the Ministers has been allotted any district.”

He added: “It has been five months since the BJP came to power and one and a half months since they expanded the Cabinet, but their only concern is to retain power by winning the byelection; they are not concerned about public health care. The BJP’s office in the State has been cordoned off owing to everyday COVID cases. This must be the only political office in the country to be sealed off because of COVID-19.”

The government’s lackadaisical attitude is evident from public officials and bureaucrats contracting the virus one after the other. Vishwas Sarang, a Minister in the Chouhan government, is the latest to test positive. On August 9, he announced on Twitter, “My second COVID-19 report has come positive today. I am in home isolation since my first report came negative. I request everyone to get tested who came in contact with me.”

Long before Chouhan contracted COVID, more than 50 officials of the Health Department had tested positive for the virus. On August 13, the newly nominated Rajya Sabha member from the State, Sumer Singh Solanki of the BJP, also tested positive.

Chouhan’s Ministers and senior colleagues, meanwhile, are focussed on the upcoming Assembly elections. There have been reports of BJP leaders organising and participating in membership drives.

On July 31, the government had announced the second phase of a COVID-related campaign. In a Cabinet meeting conducted via videoconferencing, Chouhan said that the second phase spanning the August 1-14 period would focus on ensuring social distancing and adherence to norms such as wearing of masks. According to the government, it had completed a health survey covering 95 per cent of the people in the State, in which 1,00,679 samples were tested for COVID-19.

Though the government has been claiming success of all its COVID-control initiatives, facts on the ground belie these claims. As many as 88 police personnel, including officers, had tested positive for COVID, Home Minister Narottam Mishra announced on August 10. Around 2,000 police personnel have been quarantined so far.

Hindutva card

The Chouhan regime is also busy playing the Hindutva card ahead of the byelections. On August 15, the Chief Minister unveiled a 25-foot-tall bronze statue of “Bharat Mata” on the premises of Shaurya Smarak, a war memorial and museum, in Bhopal. “Several people, including Sarsanghchalak [Rashtriya Swayamsewak Sangh chief] Mohan Bhagwat, who had come to pay tribute to the brave soldiers at Shaurya Smarak, felt that there should be a statue of Bharat Mata here. This dream came true today,” Chouhan said.

He further declared that his government would build a “Ram Van Gaman Path”, or the route Rama took on his way to exile, besides a Ramayan Circuit in the State. He said the move was aimed at boosting tourism.

Opposition’s bid

The opposition Congress, too, is keen on playing the soft Hindutva card rather than taking on Chouhan ideologically or on administrative and governance-related issues. A day before the Ram Temple bhumi pujan in Ayodhya on August 5, the party’s State unit chief and former Chief Minister Kamal Nath organised a Hanuman Chalisa recital function at his residence in Chhindwara. He justified this covert support for the temple in the press, saying: “I have stuck to the stand taken by the first Prime Minister Jawaharlal Nehruji and former Prime Minister Rajiv Gandhi on the Ram temple. Nothing more should be read into it. Rajivji got the locks of the Ram temple at Ayodhya opened. We were against the demolition of the Babri mosque. The Congress stand was clear that we would abide by the court’s decision on it.”

On the occasion of Janmashtami, celebrating the birth of Krishna, on August 10, the social media was inundated with photographs of Kamal Nath in the guise of the warrior Arjuna from the Mahabharata.

ISRO spy case

Delayed justice for Nambi Narayanan, but will the ‘ISRO spy case’ end here?

R. Krishnakumar the-nation

Nearly a quarter century after he started his dogged fight for justice, former Indian Space Research Organisation (ISRO) scientist Nambi Narayanan has received an “additional compensation and solatium” totalling Rs.1.3 crore from the Kerala government for being wrongly implicated in the infamous ‘ISRO spy case’.

The compensation was paid as part of an out-of-court settlement mediated by former Chief Secretary K. Jayakumar, who was appointed by the State government for the purpose.

As part of the agreement, Nambi Narayanan has withdrawn the civil suit he had filed before the lower court. “It is a good decision by the government. The civil case has been withdrawn. There is no case pending now,” Nambi Narayanan told Frontline.

The amount paid is in addition to a compensation of Rs.50 lakh he had received in 2018 from the Kerala government as ordered by the Supreme Court for the “physical” and “mental” agony he underwent, and the Rs.10 lakh he had received as “interim relief” as per an order of the National Human Rights Commission.

Five others too had been accused in the case. But Nambi Narayanan alone chose to go for a long, lonely legal battle against the injustice and humiliation faced at the hands of the State police, which had branded him as someone “who helped India’s cryogenic and Viking engine technology secrets to be handed over to foreign countries”.

Over 20 years ago, on April 29, 1998, the Supreme Court upheld the findings of the Central Bureau of Investigation (CBI), which had, after an 18-month inquiry concluded that the “allegations of espionage were not proved and had been found to be false” (“Requiem for a scandal”, Frontline, May 22, 1998).

But the case was prolonged as the State government then ordered another inquiry by the State police. On September 14, 2018, the apex court once again reiterated that “the criminal law had been set in motion” in November 1994 by the Kerala Police against the six people wrongly accused in the case “without any basis” and that it was initiated “on some kind of fancy or notion”.

While ordering the State to pay Rs.50 lakh as compensation, the three-judge bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud also allowed Nambi Narayanan to proceed with the civil suit in the lower court in which he had claimed a compensation of Rs.1 crore.

Settlement

Nambi Narayanan said initially that he would continue to pursue the civil suit, but on July 23, 2019, he wrote a letter to Chief Minister Pinarayi Vijayan seeking a settlement through consensus and stating that he was willing to close the civil case. The government had then asked the former Chief Secretary to be a negotiator on its behalf.

In his report to the government submitted on August 7, 2019, Jayakumar said that Nambi Narayanan had explained in detail the issues relating to the conduct of the case, the irreparable losses in his life as a result of the case, the ordeal he had underwent, and that “it was the good name and recognition he had gained, as a scientist who had valuable contributions in the field of space research an rocket technology, which he lost with his arrest on November 30, 1994”.

He also said that though the court had found him innocent in 1998, the legal process had dragged on for over 20 years, during which he had faced public disgrace, mental agony, isolation even within his family, financial loss, the heavy financial burden of conducting the case, loss of physical and mental health, and the psychological effect all this had on his wife—the impact of which “was beyond something that could be compensated with money”.

This was the basis of his demand for a compensation of a total of Rs.2.15 crore (Rs.1 crore as “compensation” and Rs 1.15 crore as interest), the report said.

Nambi Narayanan also submitted before the government that while allowing a compensation of Rs.50 lakh, the Supreme Court had clarified that “he may proceed with the civil suit wherein he has claimed more compensation”. But, he said, the case had already dragged on for 20 years and it would take much more time for an eventual resolution. He also said he was already 78 years old, and wished to spend the evening of his life free of court cases, peacefully, and using his talent and knowledge for doing something creative for society.

In his report, Jayakumar said he had told Nambi Narayanan about the “impracticality” of the demand for 6 per cent interest for 20 years from 1999 and instead had suggested a specific amount as a “solatium”, for which he had responded positively and had said he was leaving it to the government’s wisdom.

The report therefore recommended a “solatium” of Rs.2 lakh for each year (a total of Rs.40 lakh) instead of Rs.1.15 crore (at 6 per cent interest for 20 years for Rs.1 crore) demanded by Nambi Narayanan).

Thus a compensation of Rs.1 crore and a solatium of Rs.40 lakh was agreed to finally, out of which the Rs.10 lakh already paid as interim relief as ordered by the National Human Rights Commission was to be deducted.

According to the report, Nambi Narayanan had agreed to withdraw the case before the civil court for a total compensation of Rs.1.30 crore, with all the parties having to submit before the court that they have come to a mutual agreement.

The report submitted to the government in August last year had recommended that this amount (Rs. 1.15 crore) aggregable to Nambi Narayanan “must be paid without delay”, because the crux of the agreement is “the resolution of the problem without any delay”.

“Even though he has not demanded it as condition, Nambi Narayanan’s belief and hope are that the process would be completed quickly. And there is a certain ‘administrative morality’ in obliging to it,” the report said.

The State Cabinet subsequently accepted the recommendations in the report.

The case

The ‘ISRO spy case’ that began with the arrest of a Maldivian national, Mariam Rasheeda, in Thiruvananthapuram in October 1994 and her alleged “confessions” that “certain official secrets and documents of ISRO have been leaked out by scientists of ISRO” was used to the hilt by the then opposition parties and detractors of the then Congress Chief Minister K. Karunakaran within his own party. Karunakaran was eventually forced to step down from office and was replaced by A.K. Antony.

The case played havoc with the lives of not only Nambi Narayanan, but also another senior ISRO scientist, D. Sasikumaran; Mariam Rasheeda; her Maldivian friend Fousia Hassan and two Bangalore-based businessmen, K. Chandrasekharan and S.K. Sarma. It also unsettled the career of a senior Indian Police Service officer, Raman Srivastava, against whom Karunakaran refused to take action without sufficient evidence of involvement, despite tremendous political pressure that led to his own ouster. (Srivastava later became the Director General of Police of the State and is now Adviser (Police) to Chief Minister Pinarayi Vijayan.)

In its order awarding the compensation, the Supreme Court said it could not lose sight of the “wrongful imprisonment, malicious prosecution, the humiliation and the defamation faced by the appellant” and “without any trace of doubt, suitable compensation has to be awarded, to compensate the suffering, anxiety and treatment by which the quintessence of life and liberty under Article 21 of the Constitution withers away”.

It further said: “The liberty and dignity of the appellant, which are basic to his human rights, were jeopardised as he was taken into custody and, eventually, despite all the glory of the past, he was compelled to face cynical abhorrence. The situation invites the public law remedy for grant of compensation for violation of the fundamental rights envisaged under Article 21 of the Constitution.”

The award of the compensation for the “physical” and “mental” agony he underwent was a milestone in a series of such Supreme Court judgments giving more clarity and importance to the principle of “constitutional liability” that was relied upon in several earlier cases, which laid the foundation for holding the state liable for police excesses and making pecuniary compensation an important remedy for violation of fundamental rights by state forces.

The court emphasised in clear terms the tendency of the police “to arrest anyone and put him in custody”, the “mental agony of a person wrongly confined in a lock-up, even if there is no physical torture” and the consequent “loss of reputation which is an insegregable facet of a person’s fundamental rights”, all of which cry out for remedy.

Far-reaching impact

Nambi Narayanan’s case will have a far-reaching impact in all cases of wrongful arrest and confinement and police excesses and misconduct where the victims seek compensation and action against erring officers.

The ‘ISRO spy case’ in which at least one victim has now got some justice after 25 years by the effective intervention of the highest court, however, leaves a crucial question: who all were responsible for weaving such a fantastic false tale and why?; and who would compensate for the untold suffering that the other accused too went through?

While granting him the compensation of Rs.50 lakh in 2018, the Supreme Bench had in fact agreed with Nambi Naryananan’s submission that grant of compensation was not the solution in a case of this nature and that those responsible for his harrowing experience “should face legal consequences”.

The court had also constituted a committee headed by Justice D.K. Jain, a former judge of the Supreme Court, with two officers to be nominated by the Central and State governments as members. The committee was to “find out ways and means to take appropriate steps against the erring officials”, the court said.

But nothing further had been reported since the court order on the proceedings of such a committee. The fate of the committee could not be ascertained immediately. State government officials and Nambi Narayanan too said they were unaware of the status of the committee.

Conservation

Maharashtra’s green signal for the environment

Lyla Bavadam wild-life

The Maharashtra State Board for Wildlife (SBWL) met via videoconferencing on August 7, after almost two years. There were 12 items on the agenda and some crucial decisions were taken. For wildlife enthusiasts, the “green thinking” of Chief Minister Uddhav Thackeray and Minister of Environment and Tourism Aaditya Thackeray comes as a great relief because environmental issues have always been seen as impediments to progress by politicians.

The SBWL is chaired by the Chief Minister and the vice chairman is Sanjay Rathore, Cabinet Minister who holds the forest portfolio. Nitin Kakodkar, Principal Chief Conservator of Forests (Wildlife), is the member secretary. The other government appointees are Aaditya Thackeray; Dattatraya Bharane, Minister of State (Forests); and Dhiraj Deshmukh, a member of the Maharashtra Legislative Assembly. The SBWL has 29 members. It is responsible for policy decisions for the State’s 49 wildlife sanctuaries, five national parks and protected forests. It has the powers to implement the Wildlife Protection Act, 1972, and is the final body for deciding clearances for development projects that affect protected areas.

At this 18th meeting of the SBWL, the most crucial item on the agenda was point 11: “Controlling the population of tigers in Chandrapur district of Maharashtra & proposed management interventions to reduce human tiger Conflict.” This matter was listed because of human-animal conflict in the area. Kishor Rithe, who established the Satpuda Foundation and is a member of the SBWL, says that since 2007 there have been 150 tiger-related deaths of people. To resolve this, Kakodkar had proposed a plan that involved performing a laparoscopic vasectomy on male tigers, and relocating 50 of Chandrapur’s tigers. This so-called solution from an official who is an appointed guardian of wildlife stunned conservationists, who pointed out that the tiger is listed as Endangered on the Red List of the International Union for the Conservation of Nature (IUCN).

While sterilising an endangered species is one way of pushing it closer to extinction, translocation is stressful for the animals who are moved, as well as for the animals in the new location. There are territorial fights and human aggression to consider in the new location, both of which could result in the tigers facing real threats to their lives.

Rithe said, “We agree that some conservation strategy is required but not sterilisation and relocation. There are several dimensions to the problem. We must understand one thing. The forests of Chandrapur and Gadchiroli [adjoining district] are the same. But the Gadchiroli forests, barring one small section, have no tigers. Why is there no tiger movement from Chandrapur to Gadchiroli? Is there fragmentation of the wildlife corridor due to development projects? Is there poaching? I put these points across as solid arguments during the meeting.”

The Chief Minister apparently listened intently to all arguments and said that an expert committee would be formed to look into why the tigers were not moving into the Gadchiroli forests. Thus, the SBWL dismissed the sterilisation and translocation plans in favour of working out a more practical alternative such as a safe wildlife corridor between Chandrapur and Gadchiroli.

Chandrapur district, where the Tadoba Andhari Tiger Reserve is located, is home to 165 tigers, not including cubs and young adults. Since the all-Maharashtra count of tigers is 312, Chandrapur has more than half of the State’s tigers. About 15 years ago, the population of tigers in Maharashtra was a dismal 105. A relentless programme of habitat conservation and protection has resulted in a threefold increase in the tiger population. The organisations responsible for this are the Satpuda Foundation, Wildlife Conservation Trust, Wildlife Trust of India, Tiger Research and Conservation Trust, Eco-Pro, Bombay Natural History Society, World Wildlife Fund, and Nature Conservation Society, Amravati.

Point 12 on the agenda had been hanging fire for long. The “Proposal for Gauge Conversion from Metre Gauge to Broad Gauge between Akola Khandwa [Melghat Tiger Reserve]” involves an old meter gauge line that runs through the Melghat Tiger Reserve. Upgrading it to broad gauge would spell disaster for the wildlife in that area. Rithe, who has worked in these forests for more than 30 years, explained, “The railway is a very convenient vehicle to transport illegally picked herbs like melli and ashwagandha, deer antlers, wood chips to Khandwa. On the way through Melghat, the slow meter gauge was easily stopped by these forest smugglers by pulling a chain to load this contraband.”

The issue has always had a political colour to it, with the Member of Parliament for Akola seeing the gauge upgradation as a feather in his cap. The first proposal for conversion was made in 2009. After that, there have been numerous meetings and committees and even a railway survey that recommended finding an alternative route but there was political resistance to the idea.

Using all this information, the current government once again reviewed the proposal. Rithe said, “This time Chief Minister Uddhav Thackeray hit a six. He wrote a separate letter to Railway Minister Piyush Goyal as well as Forest and Environment Minister Shri Prakash Javadekar opposing the extension of the route from the core area of ​​the Tiger Project...At the meeting of the State Wildlife Board we unanimously passed a resolution that this railway extension should not take place through the core area of ​​the Melghat Tiger Reserve.”

The SBWL also decided to set up an exclusive Wildlife Conservation Fund to provide financial grants to conservation projects across the State. The funding would come from a cess that development projects already pay for whatever environmental damage they are likely to cause. Earlier, the project developers would have to carry out some environmental mitigation scheme but with the new decision they will just pay the Fund.

Interestingly, this was the first time that more emphasis was given to the coastal ecosystem by the SBWL. A proposal was passed to notify Angria Bank on the western coast as a “designated area” for marine protection under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976. A proposal for the recovery programme for the Arabian sea humpback whales in Indian waters, Maharashtra State, was also passed.

Other minor but significant decisions taken by the SBWL will have far-reaching effects. It decided that when optical fibres are laid across forest land, horizontal directional drilling machines be used instead of earth movers to minimise disruption to the landscape. Similarly, transmission lines will be laid as underground cables instead of towers that take up large tracts of forest land. These were, in fact, decisions that were taken in the previous meeting in December 2018 but had been omitted in the minutes and hence came up again.

State mangrove tree

The SBWL also declared the Sonneratia alba, one of the 20 types of mangroves found in India, a new official State tree. While its new status brings the plant no extra security benefits, the State has raised awareness of the might of mangroves in safeguarding the coast by giving the Sonneratia alba an official status.

Point 6 on the agenda, “Permission for collection of specimens from Protected areas for research as per Section 29 & 35(6) of the Wildlife Protection Act 1972”, was interesting because it brought out the fact that the Chief Minister’s youngest son, Tejas, is a herpetologist researcher and a keen wildlife enthusiast. The routine research request was granted to the team that Tejas is working with.

Those who attended the meeting were heartened by the Chief Minister’s preparedness as well as the fact that he listened without any interruption and made his points only towards the end. For instance, one of the points on the agenda was the notification of the Kanhargaon sanctuary in Chandrapur district. Despite obtaining all clearances, there was a continuing attempt to stall this project since this area is now being commercially exploited by the Forest Development Corporation of Maharashtra (FDCM). The FDCM would obviously stand to lose if a sanctuary was created and so kept pushing the idea that public opinion should be consulted. The sanctuary already has a clearance in principle and only its notification was pending. Besides the Wildlife Protection Act, 1972, does not mandate sanction from local people. After hearing both sides of the argument, Thackeray discussed the issue and closed the matter in favour of the sanctuary by asking: “Have you ever asked wildlife what it would like?”

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Oct 9,2020