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Judiciary

SC remark on ‘foreigners’ detention in Assam defies constitutional obligations: rights body

“Lakhs are in limbo and now fear that they may become “stateless” because of a process that is mired in a mix of complexity, confusion, lack of precision and prejudice,” says CHRI

A rights body, comprising a retired Supreme Court judge and a former Assam police chief, has said the apex court’s remark on the detention of ‘foreigners’ in Assam was unfortunate and “flies in the face of India’s constitutional and international obligations”.

One of the reasons, the Commonwealth Human Rights Initiative (CHRI) has pointed out, is that accounts from Assam indicate “arbitrariness and not rule of law” is often used to define those who came post 1971 from Bangladesh — of whatever religious denomination — and those who are Indian nationals.

“Lakhs are in limbo and now fear that they may become “stateless” because of a process that is mired in a mix of complexity, confusion, lack of precision and prejudice,” a statement issued by the CHRI on Thursday night said.

The chairperson of CHRI is Wajahat Habibullah, India’s first Chief Information Commissioner. The members include Madan B. Lokur, former Supreme Court judge; A.P. Shah, former Chief Justice of Delhi High Court, Nitin Desai, former Under Secretary in the United Nations, and Jayanto N. Choudhury, former Assam Director General of Police.

“The Supreme Court needs to reaffirm India’s constitutional and international obligations to rights on complex issues of nationality, detention and deportation and not be unmindful of its own commitment to these duties,” the CHRI said.

“As concerned citizens, we look to the Supreme Court to reaffirm India’s constitutional and international obligations to rights on sensitive issues. That is why we are disappointed by recent statements by the Chief Justice of India on a complex matter relating to illegal detention and deportation, without heeding India’s own constitutional and international obligations,” it said.

CJI’s admonition of Chief Secretary

The statement was in reference to Chief Justice of India Ranjan Gogoi’s admonition of Assam Chief Secretary Alok Kumar for proposing a methodology for the release of a handful of foreign prisoners who had been in detention beyond their term of sentence for illegal entry. The rebuke was while advocating greater detention of suspected ‘foreigners’.

“We regard these remarks as unfortunate as the case concerned the wilful violation of the human rights of hundreds of detainees who were languishing in what the court itself accepts are “inhuman conditions”, the CHRI said, referring to Article 21 that says no person in India can be deprived of her/his right to life and liberty without due process.

“There is no deportation agreement with Bangladesh. International law lays down that such deportations can take place only with the consent of the country of origin. Bangladesh has consistently refused to accept that its citizens migrate in large numbers to India. Indeed, Bangladesh regards such unilateral efforts as harmful to a bilateral relationship that is critical for the security and stability of both countries and especially of our eastern region. We cannot place ourselves in a situation where we are seen as forcing people out at gunpoint; it would be ethically unjust, wrong in law and draw international condemnation,” it said.

The rights body said its members were sensitive to the concerns in Assam and other parts of the country about the problem of illegal migration from Bangladesh, a long-standing issue that has defied official proclamations and pledges of “push back”, “deportation” and “detection”.

“Any method used must be undertaken within the rule of law frame, be just and fair and designed to minimise individual hardship and tragedy. We believe there is a need that this is a tragedy of growing intensity which is gathering momentum as a result of the current National Register of Citizens (NRC) exercise in Assam,” the CHRI said.

Many of those at risk of being marked foreigners were from the bottom of the economic pyramid, unable to sustain the complex adjudication process needed to establish their citizenship. Large numbers were already in detention camps, the CHRI pointed out.

Plea to not hurry the process

It also urged the Supreme Court to not hurry through the process of verifying the applications of 38 lakh people out the 40.07 lakh left out of the complete draft of the NRC. The court has set July 2019 as the deadline for the final list.

“The efforts need to be steady and methodical so that the charges of arbitrariness, prejudice and poor record keeping, which have plagued the NRC process, do not stick,” the CHRI said.

Judiciary

CJI Ranjan Gogoi tears into Assam govt move on detenues

The governmen’s proposed measure reflects its failure to deport declared foreigners, he says.

The Supreme Court on Thursday lashed out at the Assam government’s proposal to conditionally release and monitor declared foreigners languishing in its detention centres for over five years, saying the court would not be a party to such a move, which is both illegal and violative of the Constitution.

Chief Justice of India (CJI) Ranjan Gogoi said the proposed measure reflected the government’s failure to deport declared foreigners.

“You have no right to continue in office after authoring such an affidavit… This court will not be party to such an unheard of arrangement… You have 900 detainees when lakhs of illegal foreigners have already intermingled with the local population. Most of these foreigners are in the voters’ list and are taking part in the political system of this country…,” Chief Justice Gogoi said.

“All you have is 900 people kept in sub-human conditions in your detention centres,” he rebuked Assam Chief Secretary Alok Kumar, who was present in the court.

The affidavit proposed these foreigners’ release subject to their furnishing a security of ₹5 lakh, verification of address and collection of their biometrics.

“Is this how your government functions? Bonds, biometrics and verification of addresses… Your government has no intention, your government has only hubris,” the CJI told Mr. Kumar.

CJI calls for deportation of foreigners at earliest

When Solicitor General Tushar Mehta, who is appearing for the State, tried to intervene, the CJI said the court wanted a response from Mr. Kumar as he had authored the affidavit.

“The stand of the Government of India and the State of Assam should be that foreigners detenues should be deported as soon as possible. But we do not see that stand, Mr. Chief Secretary,” the CJI said.

Mr. Kumar repeatedly apologised to the Bench for the affidavit. He said he would come back with other measures.

“What other measures? That you will provide these detainees five-star facilities or you will beg and plead with their countries to take them back?” the CJI asked Mr. Kumar.

Court’s amicus curiae and senior advocate Gaurav Banerjee said the assistance of the native nations of these foreigners was required for deportation, and moreover, the detenues also have to cooperate.

To this, the CJI asked when the Union and the State had had a meeting with the countries concerned.

Mr. Banerjee submitted the minutes of a meeting held on March 25. He said some of the foreigners may also not cooperate with the authorities, which further retarded the move to deport them.

”Do you expect him to cooperate after 40 years of living in this country?” the CJI asked.

Mr. Prashant Bhushan, who appears for activist-petitioner Harsh Mander, sought time to file a response to the State’s affidavit.

Judiciary

Was Offered Bribe To Frame CJI Ranjan Gogoi In Sexual Harassment Case: Lawyer For Rape Victim Against Asaram

Utsav Bains, the lawyer who represented a victim in the rape case against convicted self-styled godman Asaram Bapu, has claimed that “just a few days back” he was offered a bribe of Rs 1.5 crore to frame the Chief Justice of India Ranjan Gogoi in a sexual harassment case.

While opinions remain sharply divided in the legal fraternity on Chief Justice Ranjan Gogoi’s handling of the sexual harassment allegations leveled against him by his former staffer, the embarrassing episode involving the country’s highest judicial authority has now got a new twist. 

Utsav Bains, the lawyer who represented a victim in the rape case against convicted self-styled godman Asaram Bapu, has claimed that “just a few days back” he was offered a bribe of Rs 1.5 crore to frame the Chief Justice in sexual harassment case. Though Bains has refused to reveal the identity of the person who approached him, he claims that he had turned the offer down as he suspected a “larger conspiracy to make the CJI resign”.

The dramatic claim by Bains comes in wake of Saturday’s unprecedented crisis that has engulfed the Supreme Court with the Chief Justice of India himself being accused of sexual harassment and criticised for convening an urgent hearing to essentially dismiss the allegations, attribute motives to his accuser and unambiguously point at a plot to “deactivate the office of the CJI”. 

While Bains has, so far, refused to speak to the media on his claims, he wrote a long post on Saturday evening on his Facebook page to describe how he was reportedly approached to “frame CJI in the sexual harassment case”. 

Withholding the identity of the person who made the offer to him, Bains claims he was asked to appear as the lawyer of the former staffer who has leveled the allegations against the Chief Justice of India and to help in organising a press conference on the issue at Delhi’s Press Club. Bains adds that when he refused to oblige, the person claimed that he was a relative of the woman who had accused Asaram Bapu in a rape case – Bains had appeared pro bono for the rape survivor against Asaram and the controversial godman was found guilty in the case last year – but failed to explain his relationship with the former Supreme Court staffer who has now leveled allegations against Chief Justice Gogoi.

“He couldn’t satisfactorily reply as to what was his relationship with the ex-SC staffer and then suddenly offered me 50 lacs (sic) as my legal fees if I agreed and again asked me specifically to organise a press conference at the PCI,” Bains wrote. He added further that when he refused to accept the bribe or file the case against the Chief Justice of India, the bribe offer was enhanced to Rs 1.50 crore.

Having refused the offer, Bains says he asked the person to leave his office and then made his own enquiries with “reliable sources in Delhi” following which he was convinced that there was a “larger conspiracy to make the CJI resign” and that the ‘kingpins’ of this plot are “many Delhi based Supreme Court fixers or those who engage in cash for judgments”.

Bains says that he had gone to the residence of Chief Justice Gogoi at around 7 pm on Friday to personally inform him about the goings on but was informed that the CJI was not at home. Bains says the CDR tower location of his phone can be checked to verify his claim of visiting the Chief Justice’s residence at 10, Tees January Marg.

It may be recalled that reports of a sexual harassment case had begun circulating in the media on Friday and by evening a number of web portals had sent enquiries to the Chief Justice of India to seek his version on the allegations by his former staffer. 

Bains said further that he had also asked a journalist who covers the Supreme Court to help arrange a meeting with the CJI about “an important subject” and was also planning to meet advocates Kamini Jaiswal and Prashant Bhushan, on Saturday, in this regard. 

However, by Saturday morning, news of the sexual harassment allegations against the Chief Justice had already made headlines and the CJI, on a reference by Solicitor General Tushar Mehta, had convened an urgent hearing on the matter. At the hearing by a hurriedly constituted special bench headed by CJI Gogoi himself and comprising Justices Arun Mishra and Sanjiv Khanna, the judges along with Attorney General KK Venugopal and Solicitor General Mehta collectively portrayed the allegations as a big conspiracy and an “attack on the independence of the judiciary” while stating that an appropriate bench of the court will be constituted to adjudicate on the matter soon.

Bains says he is preparing to “file a detailed affidavit” before the Supreme Court narrating his side of the alleged conspiracy “along with evidences of the conspiracy against the CJI by a lobby of disgruntled judges, SC fixers, corporate scamsters and a few corrupt politicians” who have “meticulously planned” to force the CJI to resign.

The claims made by Bains do not take away from the moral and ethical questions that arise out of Saturday’s unprecedented events at the top court – should the Chief Justice have convened a hearing of a matter that involves allegations against himself, by attributing motives to his accuser from the platform of the Supreme Court did the CJI scuttle due process of law, shouldn’t the special bench have comprised at least one woman judge of the top court or judges more senior than Justices Mishra and Khanna, etc. However, they do make the ongoing scandal all the more piquant.

Expectedly, all eyes will now be on how the Supreme Court deals with this matter in the coming days but what is certain, for now, is that Saturday’s events were only the beginning of yet another dark chapter in the recent history of the top court which, a little over a year ago, had been plunged into a crisis when its four seniormost judges – including Justice Gogoi – had raised a very public banner of revolt against the then Chief Justice of India, Dipak Misra.

Judiciary

LGBT Community Uses Rainbow Flag As Its Symbol. Here’s Why

NEW DELHI: 

In a historic judgement by Supreme Court today, Section 377 has been abolished. “Take me as I am”, says the Chief Justice pronouncing his order on Section 377 . A five-judge Constitutional bench of the Supreme Court legalised same-gender relations between consenting adults. The bench was headed by Chief Justice of India Dipak Misra and comprised Justices Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

Justice Indu Malhotra said, “History owes an apology to members of the community for the delay in ensuring their rights. section 377 will however continue govern non-consensual sexual acts, carnal intercourse with minors and acts of bestiality.”

The criminalisation of homosexuality was first imposed by the British in 1861 by calling it ‘Unnatural offence’.

Filmmaker Karan Johar took to Twitter to express his joy over the verdict. He wrote,”Historical judgment!!!! So proud today! Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights! The country gets its oxygen back!”

The LGBT or the lesbian, gay, bisexual and transgender community in India cheered yesterday’s Supreme Court verdict that ended controversial British-era Section 377 and decriminalized consensual gay sex. In a win for the gay rights activists, who have been fighting for their rights since decades, this was a “rainbow moment” in India’s history. Rainbow flags swirled the skies after the landmark verdict. The word rainbow is often associated with the gay community and rainbow flag, also called the gay pride flag, is the symbol of the LGBT social movements.

Here’s why a rainbow flag is used for the LGBT community:

The most common variant of the rainbow flag consists of six stripes: red, orange, yellow, green, blue, and violet. The flag is typically flown horizontally, with a red stripe on top, as it would be in a natural rainbow. The rainbow flag reflects the LGBT identity and solidarity. The multi-coloured flag symbolises the togetherness and diversity of the community. It represents all religion, race, gender, age and nationality. Each colour in the flag reflects some meaning – violet is for spirit, blue is for peace, green is for nature, yellow is for sunlight, orange means healing and red is for life.

The rainbow flag was originally devised by San Francisco artist Gilbert Baker. The design has undergone several revisions since its debut at San Francisco’s Gay Freedom Parade on June 25, 1978.

Section 377, which is part of an 1861 law, banned “carnal intercourse against the order of nature with any man, woman or animal” — which was interpreted to refer to homosexual sex. The historic judgment acknowledged the struggles of the LGBT community as it noted “158 years ago, the law deprived people of love.” The judges said: “Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution

Judiciary

Court Sets Aside Panel That Indicted Extra-judicial Killings

GUWAHATI: 

The Gauhati High Court on Monday set aside constitution of Justice K N Saikia Inquiry Commission that had indicted the erstwhile Prafulla Kumar Mahanta government for extra-constitutional killings of ULFA leaders family members.

The commission was set up in 2005 by the then Congress government led by Tarun Gogoi to inquire into secret killings in the state.

Justice Ujjal Bhuyan set aside the Saikia panel’s constitution saying two notifications issued in this regard violated provisions of the Commission of Inquiry Act, 1952.

Prafulla Kumar Mahanta, an Asom Gana Parishad (AGP) leader, had challenged the constitution of the commission by the state government through a notification on August 22, 2005, and another one dated September 3, 2005.

Advocate Rajib Baruah and Advocate General D Mazumdar appeared for the petitioner and the state respectively.

In its report tabled in the Assam assembly in November 2007, the Saikia Commission had indicted chief minister Prafulla Mahanta, and the then police top brass for extra-constitutional killings of family members of leaders and cadres of the militant outfit ULFA in Assam during 1998-2001.

The AGP is part of Assam’s current ruling alliance.

With the commission’s constitution annulled, its report tabled in the assembly may also be cancelled, legal sources said.

Judiciary

Justice Ranjan Gogoi set to be appointed next Chief Justice of India

Justice Ranjan Gogoi, one of the four Supreme Court judges who had held a press conference in January this year against the present chief justice, is set to be appointed the next Chief Justice of India, reports said.

The current Chief Justice of India Dipak Misra, as a matter of convention, recommended Justice Gogoi to be his successor.

File image of Supreme Court judge Justice Ranjan Gogoi. News18

File image of Supreme Court judge Justice Ranjan Gogoi. News18

Justice Gogoi’s tenure will last till 17 November, 2019. He is set to take oath as the next Chief Justice of India on 3 October.

In July, Justice Gogoi had said that a “revolution, not reform” is needed to keep the institution of judiciary serviceable for common people, asserting that the judiciary would have to be more “pro-active” and on the “front foot”.

Delivering the third Ramnath Goenka Memorial Lecture on “Vision of Justice”, the judge had told a packed Teen Murti Bhavan auditorium in Delhi that the judiciary was the “last bastion of hope” and has been “a proud guardian of the great constitutional vision”.

In the January press conference, Justice Gogoi — along with Justices J Chelameswar (since retired), MB Lokur and Kurian Joseph — had said that the situation in the top court was “not in order” and many “less than desirable” things have taken place.

Unless this institution is preserved, “democracy will not survive in this country,” the four judges had said.

The four judges, in their seven-page letter to the chief justice, had said, “It is too well settled in the jurisprudence of this country that the chief justice is only first amongst the equals — nothing more or nothing less.”

“It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which have adversely affected the overall functioning of the justice delivering system and the independence of the high courts besides impacting the administrative functioning of the office of the Chief Justice of India,” the letter had further said.

“There have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches ‘of their preference’ without any rationale basis for such assignment. This must be guarded against at all costs,” it had said.

With inputs from PTI