The State of Justice in 2022

The year 2022 witnessed a myriad of human rights violations – from pushing young Muslim female students out of school for wearing hijabs to marking perhaps the worst jail overcrowding in the history of Independent India.

While some of these violations attracted sharp judicial responses, the judiciary’s role in others left much to be desired.

Here is a recap of a few significant cases and how the judiciary responded to them.

States’ ‘bulldozer justice’ and judicial interventions

The government agencies in Assam, Delhi, Madhya Pradesh and Uttar Pradesh came up with the highly questionable approach of razing houses and concrete structures, predominantly belonging to the Muslim community, on flimsy grounds like “fighting terrorism” and “encroachments”. The fact that these decisions were unconstitutional and were taken without following any due process of law was pointed out by more than one High Court.

While hearing a suo motu PIL, the Chief Justice of Gauhati high court, R.M. Chhaya, in November, asked the state counsel to show him from any criminal jurisprudence “that for investigating a case, the police, without any order, can uproot a person, apply a bulldozer?”

“…You may be SP of any district but you require permission,” he observed.

The Supreme Court, Delhi high court and Patna high court too came down heavily on states’ administrations for “wrecking houses and lives” of people and making them shelterless unlawfully.

Gujarat’s selective remission policy and Bilkis Bano’s unending struggle

In August this year, all 11 convicts sentenced to life imprisonment for the 2002 Bilkis Bano gang rape and murder of 14 members of her family were released under the Gujarat government’s remission policy. The Gujarat government’s order for release came after one of the convicts, on spending over 15 years in prison, moved the Supreme Court for premature release. On the court’s direction the Gujarat government formed a committee that “unanimously decided in favour of the remission of all the 11 convicts in the case”.

What Bilkis Bano had endured in 2002 was communal hate crime. The return of her rapists and murderers of her family members back to the city where she lived made her and her family vulnerable. This, however, was overlooked both by the state and the judiciary.

Bilkis continued to fight back and filed a review petition in the SC against the Gujarat government’s decision. She contended that since the case was tried in a Mumbai court, the decision to release the convicts prematurely should also be by the “appropriate” Maharashtra government. Her plea, however, was dismissed by the apex court.

Pay the price for fighting for human rights

Extrajudicial killings in the name of “anti-Naxal operations” are a common phenomenon in Chhattisgarh’s Bastar region. These killings, however, are seldom investigated. Human rights activist Himanshu Kumar had moved the Supreme Court in 2009 in a case of one such killing of a tribal youth – allegedly by the state and central armed forces.

The Supreme Court, in July this year, ruled against Kumar’s petition, and termed the killings of 10 tribal men as “false charges”. The court didn’t stop there. It also instructed the Chhattisgarh government to act against Kumar and other petitioners not just for “false charges” under Section 211 (false charge of offence made with intent to injure) of the Indian Penal Code but also for “criminal conspiracy”.

In another case, again from Chhattisgarh, the Solicitor General of India, Tushar Mehta, wanted similar action to be initiated against human rights activist Degree Prasad Chouhan – for “perjury and fabrication of evidence.”

Chouhan had moved the court seeking justice in the Edesmetta firing case on the intervening night of May 17 and 18, 2013 which killed eight persons, including three children.

The initiation of action against petitioners began with a controversial judgement in June this year in the petition filed by the 2002 Gujarat riot victim Zakia Jafri’s case. Following the top court’s order, activist Teesta Setalvad and former DGP R.B. Sreekumar were imprisoned and released on bail only after spending several weeks in Gujarat jail. The top court, while granting bail, had observed that “an individual’s liberty is sacrosanct”.

Six lakhs and counting

This year, the prison population showed a dramatic increase with over 6 lakh prisoners crammed in the same space meant for 4,03,739 people in 1,378 prisons.

Every year, the higher judiciary issues orders and raise concerns over prison overcrowding. As the COVID-19 infections first began to be reported in India, the Supreme Court had suo motu asked the state home departments to take active measures to reduce congestion. While many states released prisoners, they had no long-term plan in mind. Those released on temporary bail and parole returned to jails this year and the prison occupancy rate in the country crossed over 155%.

Indiscriminate arrests, denial of bail and states’ mindless efforts to build new prisons caught president Droupadi Murmu’s attention last month.

“These days I hear that we need to set up more jails. Why do we need them? If we are moving ahead as a society… if we are making progress, why do we need more jails? Should we not be, in fact, closing down the existing ones?” she asked at the valedictory session of Law Day celebrations organised by the SC.

President Murmu’s speech set the ball rolling in the top court and state authorities have been directed to provide details of prisoners languishing in jail on petty crimes despite bail to the National Legal Service Authority (NALSA).

Supreme Court and EWS quota for Savarnas

In 2019, Narendra Modi government brought in the 10% quota for the economically weaker sections (EWS) among the ‘upper’ caste. In November, this year, the Supreme Court upheld the decision, thereby legitimising a quota-based reservation for those who haven’t suffered historical discrimination.

In a 3:2 verdict, a constitution bench comprising Chief Justice of India U.U. Lalit, and Justices Dinesh Maheshwari, J.B. Pardiwala, Bela M. Trivedi and Ravindra Bhat, delivered the verdict on a batch of pleas challenging the EWS quota in government educational institutions and employment.

Judges Maheswari, Pardiwala and Trivedi along with upholding the 103rd Constitution Amendment Act, claimed that the amendment does not violate the basic structure of the constitution because the reservation is based on economic criteria and the state has the right to do so.

Justice Bhat authored the dissenting judgment, which justice Lalit concurred with and held that the amendment is “deluding us to believe that those getting social and backward class benefit are somehow better placed.”

Justice Pardiwala’s judgment had dwelled on the constitutional safeguards meant for the Scheduled Castes, Schedules Tribes and the Other Backward Classes.

In his observation, he claimed, “Baba Saheb Ambedkar was to bring social harmony by introducing reservation for only 10 years. However, it has continued for the past seven decades.” This claim has been proved factually incorrect by scholars and it has been established that the 10-year limit was accepted in the Constituent Assembly only with reference to political reservation for SCs and STs and not for reservation in jobs and education.

Justice Trivedi too rued over “the whole concept of reservation” and said it may need to be re-examined.

“It cannot be gainsaid that the age-old caste system in India led to the introduction of reservations and so that SC ST gets a level playing field. At end of 75 years, we need to take a re-look at reservations in general in the spirit of transformative constitutionalism,” her verdict said.

Supreme Court’s split verdict in the Karnataka hijab case

On December 28, last year, six girls in Udupi’s Government PU College were denied permission to wear the hijab in classrooms. The matter soon escalated, leading to widespread protests across the coastal town.

The Karnataka government imposed a ban on hijab in classrooms, pushing many female Muslim students to abruptly drop out of schools and colleges. As the Muslim students continued their protests, the right-wing forces too entered the college premises shouting slogans and disrupting the normal functioning of several educational institutions.

At the end of January, a student moved Karnataka high court against hijab curbs, seeking a declaration that wearing a hijab is a fundamental right guaranteed under the constitution of India. Failing to get a favourable order, a petition was moved before the Supreme Court.

In October, this year, the SC delivered a split verdict on the batch of pleas challenging the Karnataka government order empowering the state to prevent students from wearing “religious clothes” to an educational institute.

Since no consensus could be reached by the pair of judges, the matter will be referred to the CJI for appropriate directions.

Anand Teltumbde’s bail on “merit”, the first in the Elgar Parishad case

Over four years and after countless bail applications filed by the 16 human rights defenders implicated in the Elgar Parishad case, 73- year-old academic and civil liberties activist Anand Teltumbde became the first to be granted bail on “merit”. The court observed “no proof or any material” was shown to be found on Teltumbde while granting him bail in last month.

Before him, the courts have granted bail to two other persons – academic and activist Sudha Bharadwaj, and 82- year-old Telugu poet Vara Vara Rao. While Bharadwaj was granted a “default bail”, Rao was released on medical grounds. Both have since had to live within Mumbai jurisdiction, as laid down in the bail condition.

Another accused person, 84-year-old Jharkhand-based tribal rights activist Father Stan Swamy, died in judicial custody on July 5, 2021, following prolonged illness and alleged state negligence in making medical care available on time.

The order in Teltumbde’s case is significant considering that it is for the first time that the courts have dealt with the merits of the allegations levelled against him and others, leading to prolonged incarceration for close to four and half years. Teltumbde’s release has given hopes to others facing prolonged incarceration.

SC releases Rajiv Gandhi assassination convict Perarivalan

The Supreme Court ordered the release of A.G. Perarivalan, a convict in the Rajiv Gandhi assassination case, who spent 31 years in jail. Perarivalan was only 19 when he was arrested in 1991. He was accused of having purchased the batteries that were used in the bomb that killed Rajiv Gandhi that year.

In its May 1999 order, the Supreme Court had upheld the death sentence of four convicts – Perarivalan, Murugan, Santham and Nalini. Perarivalan, the youngest of the four, remained on death row for over 11 years. Finally, in 2014, the apex court commuted his death sentence to life imprisonment, along with that of two other prisoners – Santhan and Murugan – on the grounds of an 11-year “inordinate delay” in deciding their mercy pleas by the Union government. Courtesy The Wire