Saturday, April 30, 2016
Sunday, April 17, 2016
On retreats for India Supreme Court Judges & why it was wrong for NSA Ajit Doval to address the Judges in a closed door session
The Judges of the Supreme Court of India just ended a long weekend at the National Judicial Academy in Bhopal on a retreat. They were addressed at this retreat by the President of India who inaugurated it. President Pranab Mukherjee cautioned the judges against judicial activism.
Ajit Doval
They were also addressed by (among others) Mr Ajit Doval, former RAW officer and currently the National Security Adviser. According to news reports, Ajit Doval in a closed door session demanded more cooperation from the Supreme Court Judges on national security terming it a non-partisan issue.
According to http://www.livelaw.in/sc-judges-retreat-national-security-advisor-ajit-doval-says-national-security-non-partisan-issue-demands-cooperation-judicial-system/
"Mr. Doval reportedly sought “more cooperation” from the judicial system, in “speeding up” the judicial system, underlining that “national security should be a non-partisan issue”. He shared the idea of an “Indian master plan” to toughen national security, by adopting an “integrated synchronized approach”.
He further emphasized on the need to view national security as a non-partisan issue, instead of viewing it from a political prism. He also elaborated on the importance of technology, to be employed as a weapon to fight terrorism.
Dwelling into the link between administration of justice and national security, he pointed out that “delayed justice in terror-related and espionage cases” affects the system. He also listed out a few acts which were having a negative impact on the security systems."
Earlier Human rights lawyers and activists had written to the Chief Justice of India stating that Judges should be exposed to diverse views and that human rights lawyers should also have been invited to address the Supreme Court Judges.
This is the fourth such retreat for Supreme Court Judges. The last one took place in 2009. See http://www.livelaw.in/supreme-court-judges-retreat-criticism-critical-government-must-also-invited-valid/ for information on earlier retreats.
While Judges must be well-read, aware of the world they judge in, aware of current domestic and global legal developments and concerns, aware of academic discussions on law, and exposed to diverse views, such retreats are not the best way to deliver this knowledge and understanding to Supreme Court Judges. Supreme Court Judges need to read widely, attend conferences, and keep themselves educated. The problem in India is that Supreme Court Judges are so over-worked that they might not find sufficient time to pursue this knowledge. Some Judges might also not be inclined to actively seek it.
Coming to Ajit Doval's address to the judges, national security concerns are important but these are also most readily open to misuse by the State to curb dissent and free speech, to restrict fundamental rights and liberties, to crush opposition to its policies, and for a corrupt government to subvert the democratic process. When a national security case comes before the Supreme Court, the Government has more than ample opportunity to place its position before the Court.
Mr Doval had no business asking for more cooperation from the Supreme Court in a private closed door meeting. What is Ajit Doval's Indian integrated synchronized master plan on national security that he shared with the Judges.? No such plan has yet been shared with the Indian Parliament. What "acts" did Ajit Doval share with the Supreme Court Judges which according to him were having an adverse impact on security systems?
Mr Ajit Doval's speech to the Supreme Court Judges is dangerous for the independence of the judiciary. It has the tendency to create a bias against and unfairness towards the accused when a national security case comes up before the Supreme Court. How will such accused address the Judges on the Ajit Doval shared knowledge if he/she has no knowledge of it.
It would be good if all speeches delivered to Supreme Court Judges are recorded and published on the court website in audio and transcript form, so that we all know what our Judges have been told.
Seema Sapra
Ajit Doval
According to http://www.livelaw.in/sc-judges-retreat-national-security-advisor-ajit-doval-says-national-security-non-partisan-issue-demands-cooperation-judicial-system/
"Mr. Doval reportedly sought “more cooperation” from the judicial system, in “speeding up” the judicial system, underlining that “national security should be a non-partisan issue”. He shared the idea of an “Indian master plan” to toughen national security, by adopting an “integrated synchronized approach”.
He further emphasized on the need to view national security as a non-partisan issue, instead of viewing it from a political prism. He also elaborated on the importance of technology, to be employed as a weapon to fight terrorism.
Dwelling into the link between administration of justice and national security, he pointed out that “delayed justice in terror-related and espionage cases” affects the system. He also listed out a few acts which were having a negative impact on the security systems."
Earlier Human rights lawyers and activists had written to the Chief Justice of India stating that Judges should be exposed to diverse views and that human rights lawyers should also have been invited to address the Supreme Court Judges.
This is the fourth such retreat for Supreme Court Judges. The last one took place in 2009. See http://www.livelaw.in/supreme-court-judges-retreat-criticism-critical-government-must-also-invited-valid/ for information on earlier retreats.
While Judges must be well-read, aware of the world they judge in, aware of current domestic and global legal developments and concerns, aware of academic discussions on law, and exposed to diverse views, such retreats are not the best way to deliver this knowledge and understanding to Supreme Court Judges. Supreme Court Judges need to read widely, attend conferences, and keep themselves educated. The problem in India is that Supreme Court Judges are so over-worked that they might not find sufficient time to pursue this knowledge. Some Judges might also not be inclined to actively seek it.
Coming to Ajit Doval's address to the judges, national security concerns are important but these are also most readily open to misuse by the State to curb dissent and free speech, to restrict fundamental rights and liberties, to crush opposition to its policies, and for a corrupt government to subvert the democratic process. When a national security case comes before the Supreme Court, the Government has more than ample opportunity to place its position before the Court.
Mr Doval had no business asking for more cooperation from the Supreme Court in a private closed door meeting. What is Ajit Doval's Indian integrated synchronized master plan on national security that he shared with the Judges.? No such plan has yet been shared with the Indian Parliament. What "acts" did Ajit Doval share with the Supreme Court Judges which according to him were having an adverse impact on security systems?
Mr Ajit Doval's speech to the Supreme Court Judges is dangerous for the independence of the judiciary. It has the tendency to create a bias against and unfairness towards the accused when a national security case comes up before the Supreme Court. How will such accused address the Judges on the Ajit Doval shared knowledge if he/she has no knowledge of it.
It would be good if all speeches delivered to Supreme Court Judges are recorded and published on the court website in audio and transcript form, so that we all know what our Judges have been told.
Seema Sapra
Did Kian Ganz actually write this article on Goolam Vahanvati for Outlook Magazine or did he just lend his name?
I have been intrigued for some time by an article on former Attorney General Goolam Vahanvati published by Outlook Magazine and attributed to Kian Ganz who runs http://www.legallyindia.com/
The article titled "The Company He Keeps: Vahanvati is to the govt what a good corporate lawyer is to his client: published at http://www.outlookindia.com/magazine/story/the-company-he-keeps/288474 was a part of a group of articles in that issue of Outlook Magazine. While all the other articles were extremely critical of Vahanvati, the Kian Ganz article was nuanced and sought to portray Vahanvati in a positive light.
I have been following Kian Ganz's writings on Legally India and Mint for some time and re-reading this article, what struck me was that this Vahanvati article did not resemble the style and idiom of writing in the other articles published by German national Kian Ganz. The English in the Vahanvati article is too dense, and frankly more compacted and more rich than the language that Kian Ganz uses.
Kian Ganz is a former Clifford Chance lawyer. He now runs Legally India, a legal market news website and is funded by Clifford Chance interested in entering the Indian legal market space. Clifford Chance had a tie-up with AZB & Partners headed by Zia Mody and Behram Vakil. Both Zia Mody (daughter of Soli J. Sorabjee, another former Attorney General) and Behram Vakil have close links to Vahanvati which include the Enron/ General Electric - Dabhol Power Plant litigation. Vahanvati's son was until recently part of AZB & Partners. Kian Ganz has close ties and access to AZB & Zia Mody due to Legally India.
I have always thought that the Kian Ganz article on Vahanvati was specially commissioned to present a positive opinion on Vahanvati among the more prevalent criticism that Vahanvati faced in his years as the Attorney General.
Upon re-reading the article by Kian Ganz, I am almost convinced that this piece was not written by Kian Ganz but was authored by a person or persons within the Vahanvati circle of Zia Mody etc., and that Kian Ganz was merely used as the author to present it as a neutral piece by a journalist.
Not only does the writing style of the article not match that of Kian Ganz, but the depth of knowledge and understanding of the environment and world of Ghulam Vahanvati and the Indian legal and judicial ecosystem that the article displays is something that I have never before seen in any other writing by Kian Ganz. Ganz being a foreigner to India, has never displayed a deep understanding of the Indian political, judicial and legal ecosystem. His writings are always superficial on these aspects. Ganz is more of a reporter of law firm deal news and law firm lawyer moves. He is not an analyst or critical commentator on the Indian judicial system and until his more recent move to Delhi from Mumbai, his exposure to the Indian Courts was non-existent. So for Ganz to have written this piece in 2013 before he even moved to Delhi and gained his still minimal familiarity with the Supreme Court of India is not something that I am ready to buy.
Something is fishy.
Go ahead, google other writings by Kian Ganz and show me a single piece that resembles the style of the Vahanvati piece, You will not find it.
Read other opinions on Goolam Vahanvati
Unfit to hold the post of Attorney General
A Bullet Hanging In The Air
‘The A-G Is Very Smart; He’s Also Socially Active And Smooth’
Who Is This Man Firing The Gun For?
Goolam Vahanvati: Attorney general or mob lawyer?
Inside Man: The convenient opinions of Attorney General Goolam Vahanvati
The real face of Attorney General
The article titled "The Company He Keeps: Vahanvati is to the govt what a good corporate lawyer is to his client: published at http://www.outlookindia.com/magazine/story/the-company-he-keeps/288474 was a part of a group of articles in that issue of Outlook Magazine. While all the other articles were extremely critical of Vahanvati, the Kian Ganz article was nuanced and sought to portray Vahanvati in a positive light.
I have been following Kian Ganz's writings on Legally India and Mint for some time and re-reading this article, what struck me was that this Vahanvati article did not resemble the style and idiom of writing in the other articles published by German national Kian Ganz. The English in the Vahanvati article is too dense, and frankly more compacted and more rich than the language that Kian Ganz uses.
Kian Ganz is a former Clifford Chance lawyer. He now runs Legally India, a legal market news website and is funded by Clifford Chance interested in entering the Indian legal market space. Clifford Chance had a tie-up with AZB & Partners headed by Zia Mody and Behram Vakil. Both Zia Mody (daughter of Soli J. Sorabjee, another former Attorney General) and Behram Vakil have close links to Vahanvati which include the Enron/ General Electric - Dabhol Power Plant litigation. Vahanvati's son was until recently part of AZB & Partners. Kian Ganz has close ties and access to AZB & Zia Mody due to Legally India.
I have always thought that the Kian Ganz article on Vahanvati was specially commissioned to present a positive opinion on Vahanvati among the more prevalent criticism that Vahanvati faced in his years as the Attorney General.
Upon re-reading the article by Kian Ganz, I am almost convinced that this piece was not written by Kian Ganz but was authored by a person or persons within the Vahanvati circle of Zia Mody etc., and that Kian Ganz was merely used as the author to present it as a neutral piece by a journalist.
Not only does the writing style of the article not match that of Kian Ganz, but the depth of knowledge and understanding of the environment and world of Ghulam Vahanvati and the Indian legal and judicial ecosystem that the article displays is something that I have never before seen in any other writing by Kian Ganz. Ganz being a foreigner to India, has never displayed a deep understanding of the Indian political, judicial and legal ecosystem. His writings are always superficial on these aspects. Ganz is more of a reporter of law firm deal news and law firm lawyer moves. He is not an analyst or critical commentator on the Indian judicial system and until his more recent move to Delhi from Mumbai, his exposure to the Indian Courts was non-existent. So for Ganz to have written this piece in 2013 before he even moved to Delhi and gained his still minimal familiarity with the Supreme Court of India is not something that I am ready to buy.
Something is fishy.
Go ahead, google other writings by Kian Ganz and show me a single piece that resembles the style of the Vahanvati piece, You will not find it.
Read other opinions on Goolam Vahanvati
Unfit to hold the post of Attorney General
A Bullet Hanging In The Air
‘The A-G Is Very Smart; He’s Also Socially Active And Smooth’
Who Is This Man Firing The Gun For?
Goolam Vahanvati: Attorney general or mob lawyer?
Inside Man: The convenient opinions of Attorney General Goolam Vahanvati
The real face of Attorney General
Legally India news website unfairly targets activist lawyer Mathews J Nedumpara
Legally India run by ex-Clifford Chance lawyer Kian Ganz cannot help exposing its biased, elitist, pro-establishment propagandist character.
In a piece titled Court Cuts: When two benches ran out of patience with Mathews J Nedumpara in one day
Legally India unfairly runs down activist lawyer Mathews J Nedumpara who had filed two bold petitions before the Supreme Court of India raising important issues about the functioning of the Indian judicial system. Starting with labeling and dismissing him as a "Maverick lawyer", and going on to inaccurate, partial, and one-sided reporting as to what transpired in Court, Legally India essentially mocks and belittles Nedumpara in what is also a grammatically incorrect article. In doing so, Legally India reduces the important but contentious legal issues and arguments raised by Nedumpara to caricature. Thankfully several lawyers have chosen to comment on Legally India and have objected to the malicious intent and tone and tenor of the Legally India write up.
A fair and good intentioned article would have reported the substantive legal issues and grounds raised by Nedumpara in his pleading and his substantive submissions in Court and his response to the statements from the Bench. Legally India should also have reported whether a fair hearing was accorded to Nedumpara and whether a reasoned order was or ought to have been passed. Such a report would have been useful for readers. Instead Legally India decided to do a hatchet job on Nedumpara.
One of the two petitions filed by Nedumpara can be read at http://www.documentcloud.org/documents/2804409-Mathews-Nedumpura-writ-petition-128-2016.html
This petition raises some very relevant points about how the Indian judicial system is misused by the rich and powerful. Legally India could instead have spent some useful space on the contents of this writ petition rather than ridiculing Nedumpara.
Compare this to how Legally India run by Kian Ganz and funded by Big Law including Clifford Chance jumped in to defend the powerful Indian lawyer Harish Salve after he got exposed in the Panama Papers leak, see http://propagandaoutfitlegallyindia.blogspot.in/2016/04/why-high-flying-indian-lawyer-harish.html
Harish Salve, incidentally represented Indian film actor Salman Khan who was surprisingly acquitted in an under the influence drunk driving hit and run multiple murder case. Nedumpara rakes up the Salman Khan issue in his writ petition and points out how Salman Khan might have got favorable treatment compared to ordinary litigants before the Bombay High Court. Maybe Kian Ganz and Legally India sourced the Nedumpara hit job article from a lawyer close to Harish Salve. I would not be surprised if this indeed is the case.
Also here's why elitist Legally India where subaltern lawyers are routinely mocked for their poor English language skills by elite big law lawyers, might want to engage someone to proof-read their publications.
"But the petitions were so similar in tone and tenor, that both benches had a long arguments with him, before dismissing them."
and
"When both did not listen, Justice Misra asked them to come back at noon, and tell the bench whether he had disengaged his counsel or not." Which "both"? The preceding sentences only refer to Nedumpara.
In a piece titled Court Cuts: When two benches ran out of patience with Mathews J Nedumpara in one day
Legally India unfairly runs down activist lawyer Mathews J Nedumpara who had filed two bold petitions before the Supreme Court of India raising important issues about the functioning of the Indian judicial system. Starting with labeling and dismissing him as a "Maverick lawyer", and going on to inaccurate, partial, and one-sided reporting as to what transpired in Court, Legally India essentially mocks and belittles Nedumpara in what is also a grammatically incorrect article. In doing so, Legally India reduces the important but contentious legal issues and arguments raised by Nedumpara to caricature. Thankfully several lawyers have chosen to comment on Legally India and have objected to the malicious intent and tone and tenor of the Legally India write up.
A fair and good intentioned article would have reported the substantive legal issues and grounds raised by Nedumpara in his pleading and his substantive submissions in Court and his response to the statements from the Bench. Legally India should also have reported whether a fair hearing was accorded to Nedumpara and whether a reasoned order was or ought to have been passed. Such a report would have been useful for readers. Instead Legally India decided to do a hatchet job on Nedumpara.
One of the two petitions filed by Nedumpara can be read at http://www.documentcloud.org/documents/2804409-Mathews-Nedumpura-writ-petition-128-2016.html
This petition raises some very relevant points about how the Indian judicial system is misused by the rich and powerful. Legally India could instead have spent some useful space on the contents of this writ petition rather than ridiculing Nedumpara.
Compare this to how Legally India run by Kian Ganz and funded by Big Law including Clifford Chance jumped in to defend the powerful Indian lawyer Harish Salve after he got exposed in the Panama Papers leak, see http://propagandaoutfitlegallyindia.blogspot.in/2016/04/why-high-flying-indian-lawyer-harish.html
Harish Salve, incidentally represented Indian film actor Salman Khan who was surprisingly acquitted in an under the influence drunk driving hit and run multiple murder case. Nedumpara rakes up the Salman Khan issue in his writ petition and points out how Salman Khan might have got favorable treatment compared to ordinary litigants before the Bombay High Court. Maybe Kian Ganz and Legally India sourced the Nedumpara hit job article from a lawyer close to Harish Salve. I would not be surprised if this indeed is the case.
Also here's why elitist Legally India where subaltern lawyers are routinely mocked for their poor English language skills by elite big law lawyers, might want to engage someone to proof-read their publications.
"But the petitions were so similar in tone and tenor, that both benches had a long arguments with him, before dismissing them."
and
"When both did not listen, Justice Misra asked them to come back at noon, and tell the bench whether he had disengaged his counsel or not." Which "both"? The preceding sentences only refer to Nedumpara.
Friday, April 15, 2016
Thursday, April 14, 2016
On nationalists and anti-nationals - stand with #JNU & #KanhaiyaKumar
My refusal to be a nationalist does not make me anti-national.
Just by way of comment on the semantics and misuse of language in this entire JNU issue.
Just by way of comment on the semantics and misuse of language in this entire JNU issue.
I am not a nationalist, I have refused to be a nationalist ever since I understood the meaning of nationalism in university.
But that does not mean that I am anti-national. I believe in human rights, in justice including social justice, in liberty, in equality, in democracy, I value our constitutional freedoms and rights, I am an Indian though sometimes I wonder if that is a curse. I am anti-war, anti-imperialist, against exploitation of people, anti-corruption, anti-propaganda. I vehemently speak and defend the truth. For me the truth is everything.
So just because I refuse to be a nationalist does not make me anti-national.
Apparently now merely shouting slogans for azadi is a seditious act. Freedom is my birthright and I shall have it - this sentiment apparently was supposed to have ended in 1947. Indians have needed to fight for their freedom in myriad ways everyday since 1947 to today. So is shouting inquilab zindabad also a seditious act.
Kanhaiya Kumar has also been targeted with doctored videos and photo-shopped pictures to misrepresent what he said or did.
Watch the doctored azadi slogans video at
Watch the actual azadi slogans video at
Kanhaiya must not just apply for bail, he must challenge his unlawful detention in violation of his right to free speech under Article 19 on the basis of non-existent and fabricated evidence as vendetta for his critique of BJP and RSS politics and for exposing police brutality outside the RSS headquarters.
He must also challenge the constitutional vires of Section 124A IPC. There are grounds to do it, given that Police Commissioner B S Bassi himself and Home Ministers Rajnath Singh and Kiren Rijiju themselves have interpreted Section 124A in a manner that violates Article 19.
He can only effectively do all this under Article 32 before the Supreme Court.
Lawyers especially need to be particularly careful about the language they use. Patiala House lawyers and the marching lawyers contingent (19 February) kept denouncing Kanhaiya Kumar as gaddar and desh-drohi.
Note that Kanhaiya Kumar has not waged war on the State. He has not committed treason. He is only detained not even charged yet under the sedition provision 124A IPC. Evidence shows that he shouted slogans peacefully with no call for violence to overthrow the India State. So obviously the crime of sedition is not made out.
Now some JNU students might reject the BJP and RSS discourse on nationalism but that does not make them anti-national.
Also no law exists in India which makes it a crime to be "anti-national". If such a law were ever enacted it would be struck down as being unconstitutional.
As lawyers we must appreciate these distinctions and these nuances of constitutional law.
A little off-topic but relevant.
We've seen this before ... people like Afzal Guru, Yakub Memon, Kasab etc denied a fair and open trial and having to undergo trial with inadequate legal representation because lawyers have rioted or resorted to violence and demanded that no lawyer represent a terrorist.
But how come no lawyers were upset by Mahesh Jethmalani (a BJP leader) representing David Headley or by lawyers representing Sanjay Dutt in the Bombay bomb blasts case.
For me the pardon granted to David Headley and supported by the Indian (BJP) Government is the most anti-national of acts. Why did the lawyer community which wears its nationalism on its sleeve not get offended by David Headley being pardoned.
Before anyone claims this pardon was necessary to secure his testimony, let me point out first that Headley was legally obligated to testify in his India trial whether he wanted or not under his plea agreement with the US government.
A close associate of Narendra Modi, actor Anupam Kher has introduced language comparing the "anti-national" students to cockroaches, insects and ants and the process of targeting them to pest control of the nation.
This was Nazi lingo for Jews.
These are extraordinary times and I hope the Supreme Court responds to the situation.
The failure to carry out the Supreme Court's directions in Patiala House on 17th February by the Modi Government and the Delhi Police (Bassi incidentally visited the PMO that morning and emerged even more arrogant and imperious) looks like deliberate defiance of the Supreme Court by the executive.
Bassi said things like aage aage dekho hota hai kya on that morning and the possibility of his appointment as information commissioner was leaked that same day, which thankfully has now been scuttled after public outrage.
I hope the Supreme Court Judges come down strongly against the emerging fascist tendencies in the State (read the BJP Government) as well as in some right-wing communities.
The Police has also become a law unto itself and as legislative reforms are not on the horizon, some exercise of judicial power against a person like Bassi would do a lot of good. The Supreme Court should haul up Bassi for contempt of court.
A little off-topic but relevant.
We've seen this before ... people like Afzal Guru, Yakub Memon, Kasab etc denied a fair and open trial and having to undergo trial with inadequate legal representation because lawyers have rioted or resorted to violence and demanded that no lawyer represent a terrorist.
But how come no lawyers were upset by Mahesh Jethmalani (a BJP leader) representing David Headley or by lawyers representing Sanjay Dutt in the Bombay bomb blasts case.
For me the pardon granted to David Headley and supported by the Indian (BJP) Government is the most anti-national of acts. Why did the lawyer community which wears its nationalism on its sleeve not get offended by David Headley being pardoned.
Before anyone claims this pardon was necessary to secure his testimony, let me point out first that Headley was legally obligated to testify in his India trial whether he wanted or not under his plea agreement with the US government.
A close associate of Narendra Modi, actor Anupam Kher has introduced language comparing the "anti-national" students to cockroaches, insects and ants and the process of targeting them to pest control of the nation.
This was Nazi lingo for Jews.
These are extraordinary times and I hope the Supreme Court responds to the situation.
The failure to carry out the Supreme Court's directions in Patiala House on 17th February by the Modi Government and the Delhi Police (Bassi incidentally visited the PMO that morning and emerged even more arrogant and imperious) looks like deliberate defiance of the Supreme Court by the executive.
Bassi said things like aage aage dekho hota hai kya on that morning and the possibility of his appointment as information commissioner was leaked that same day, which thankfully has now been scuttled after public outrage.
I hope the Supreme Court Judges come down strongly against the emerging fascist tendencies in the State (read the BJP Government) as well as in some right-wing communities.
The Police has also become a law unto itself and as legislative reforms are not on the horizon, some exercise of judicial power against a person like Bassi would do a lot of good. The Supreme Court should haul up Bassi for contempt of court.
- Seema Sapra
Watch JNU students union president Kanhaiya Kumar Speech against RSS before arrested || 2016
How We the People of India must respond to the recent #JNU incidents
- Seema Sapra
The Narendra Modi led Government has used the Delhi Police to slap the very serious charge of sedition against JNU students who allegedly shouted objectionable slogans in a peaceful gathering and did nothing else.
The law on sedition is being routinely abused in recent years to silence dissent, protest and political challenge.
The elements of the crime of sedition under section 124A of the Indian Penal Code as clarified by the Supreme Court of India in Kedar Nath Singh versus State of Bihar (1962) require not only “written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term 'revolution'”; but also an element of mens rea comprising of a “pernicious tendency or intention” to achieve such subversion of Government; and a further requirement that the “words, written or spoken, etc.” must have the “pernicious tendency or intention of creating public disorder or disturbance of law and order” “by resort to violence”.
Now mere slogan-shouting in favour of Afzal Guru or for his vindication, or in favour of Azad Kashmir, or even slogans hoping for India’s destruction or its fragmentation, or slogans in favour of Pakistan by a group of students by itself would not constitute the crime of sedition.
It does not appear that the students had any real intent to overthrow or subvert the Indian Government which is an element of the crime of sedition. Nor did their slogan shouting really incite violence or have the tendency to incite violence or to achieve the overthrow of the Indian Government.
As Pratap Bhanu Mehta points out in http://indianexpress.com/article/opinion/columns/jnu-sedition-case-kanhaiya-kumar-arrest-afzal-guru-event/ it is not a crime to be anti-national and that no entity or person or administration can claim to exclusively define what is anti-national and what isn’t.
Nor is it anti-national to continue to question as to whether Afzal Guru was really a terrorist or if he was framed in a false flag attack on the Indian Parliament despite the confirmation of his conviction by the Supreme Court. There is an international law recognized human right to self-determination of all peoples and it is not anti-national to argue in favour of the right of the Kashmiri people to self-determination. One could even assert that the fundamental right to freedom of speech and conscience guaranteed under the Indian Constitution protects the right of a citizen to denounce India or to hope for its destruction or fragmentation as long as this is not accompanied by any real intent to overthrow the Government or to incite or commit violence as part of such intent.
The slogan shouting at JNU could have been dealt with by the University administration. Students disaffected with Indian State policies should be positively engaged in a political dialogue and not imprisoned for sedition.
The response of the police administration and the attempt to stifle dissent raises the specter of a police state. The Commissioner of Police was wrong in issuing statements like “If any person gets any whimsical ideas, I request them not to resort to any such form of insolence as the punishment under this section ranges from three years to life imprisonment". Excuse me, but aren’t whimsical ideas and insolence towards perceived abuse of State or police power constitutionally protected? Or is the Delhi Police now going to tell Indian citizens what they can or cannot think?
The BJP Government and the Delhi Police it controls attempted to create an atmosphere of fear by arresting the JNU student union president and by unnecessary and disproportional police action and presence on the JNU campus. The Delhi Police went further and used a tweet from a known fake/ parody twitter handle of Pakistani terrorist Hafiz Saeed to instil fear among the youth on twitter by suggesting that anyone supporting the JNU students under siege would be viewed as supporting terrorist activities. This was nothing but a deliberate spread of disinformation by the Delhi Police to stifle protests in support of the JNU students and to create a chilling effect on voices against the State’s unwarranted response to the slogan-shouting at JNU. The Delhi Police is now claiming that the authenticity of this tweet was irrelevant. Really and why? Is the Delhi Police saying that it and the Indian intelligence authorities were unaware of this twitter handle before the JNU protests?
Mr Rajnath Singh the Indian Home Minister went further and issued a press statement claiming that the JNU incident was supported by Pakistani terrorist Hafiz Saeed. After the fake tweet was exposed as fake, the BJP Government is now trying to cover-up and claim that the Home Minister’s statement was based upon input from several sources.
The conduct of the Delhi Police and the BJP Government is shameful in that they would knowingly and without evidence tarnish genuine students and an academic institution as linked to terrorism and destroy lives and the institution’s reputation.
The above makes one wonder if the Delhi Police or the RSS are seeking revenge on the JNU students who recorded and exposed the widely condemned recent incident of police goondaism and police violence against JNU students peacefully demonstrating outside the RSS headquarters?
The Afzal Guru controversy and the questioning as to whether Afzal Guru was framed in a false flag attack has had several credible public figures involved who remain unconvinced as to the Police version of the Parliament attack. The Delhi Police role in this controversy is suspect. The Parliament attack false flag if that is what it was, took place under the previous BJP led NDA Government and therefore both the BJP and the Delhi Police have an interest in silencing those who question the official narrative of the Parliament attack.
As Pratap Bhanu Mehta points out this Government “does not want to just crush dissent; it wants to crush thinking”. We the People of India must not be crushed into submission. We must continue to think independently and to question official narratives when there is evidence to do so. We must zealously guard and protect our fundamental rights including the right to freedom of speech, expression, thought and conscience. And we must continue to expose, challenge and protest against abuse of State and Police power to crush dissent or thinking.
A closer reading of the Supreme Court of India decision in Kedar Nath Singh vs State of Bihar (1962) on the offence of sedition defined in Section 124A IPC
- Seema Sapra
In light of the apparent misuse of the law of sedition by the Delhi Police in the JNU slogan shouting incidents, a closer look at the essential ingredients of the crime of sedition under Section 124A of the Indian Penal Code as clarified by the Supreme Court of India in Kedar Nath Singh vs State of Bihar (1962) is needed.
This 1962 case was the first time that the Supreme Court had to consider the legality of the colonial law on sedition (Section 124A IPC which was enacted in 1870) in post independent India and in the context of the newly created fundamental right to free speech under Article 19. Both Section 124A and Section 505 IPC were under challenge as unconstitutional in the light of Article 19.
Bound to deal with precedent (even if the earlier cases were from the colonial era) the Supreme Court was faced with two directly conflicting interpretations of Section 124A. The Federal Court in Niharendu Dutt's case had interpreted Section 124A in alignment with British law on sedition and held that a tendency to disturb public order was an essential element of the offence under s. 124A. On the other hand, a line of cases including the sedition case of Bal Gangadhar Tilak and culminating in the Privy Council decision in the case of King-Emperor v. Sadashiv Narayan Bhalerao had held that incitement to violence or a tendency to disturb public order was not a necessary ingredient of the offence under s. 124A.
The offence of sedition is an offence against the State. As understood in England the crime of sedition fell short of actual treason, and did not involve the actual use of force or violence.The following passage from the address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan is useful to understand the meaning of the crime of sedition as it was understood under the British Empire.
"Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition generally are to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described, as disloyalty in action and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder."
In Kedar Nath Singh, the Supreme Court noted that Article 19(2) of the Constitution which carves out the right of the legislature to impose reasonable restrictions on the fundamental right to free speech guaranteed under Article 19(1) was amended in 1951 to include public order as a result of the 1950 cases of Romesh Thappar v. The State of Madras and Brij Bhushan v. The State of Delhi.
So in Kedar Nath Singh, the question before the Supreme Court was as to the constitutionality of s. 124A and s. 505 of the Indian Penal Code under Article 19(2) with particular reference to security of the State and public order, both of which find mention in that Article.
In its analysis of Section 124A, the Supreme Court in Kedar Nath Singh first noted that the words “Government established by law" were not a reference to “the person's for the time being engaged in carrying on the administration" but referred to the Government as the visible symbol of the State. The Supreme Court clarified that the crime of sedition was a crime against the State and was intended to protect the very existence of the State. The purpose of the crime of sedition was to prevent the Government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”.
The passage which follows is the most important passage in the Supreme Court decision in Kedar Nath Singh and contains the ratio decidendi of the case.
“Hence any acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term 'revolution', have been made penal by the section in question.”
As the above passage notes, according to the Supreme Court the essence of the crime of sedition requires acts which are intended to have the “effect of subverting the Government” by violent means.
In Kedar Nath Singh, the Supreme Court also clarified what is not sedition. Thus it clarified that mere “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means” is not sedition.
It clarified that “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” is not sedition.
It clarified that “commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence” is not sedition.
The Supreme Court clarified that a “citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” Note the use of the “whatever” here.
As a result, the Supreme Court expressly sided with the interpretation of sedition by the Federal Court in Niharendu Dutt and stressed that “incitement to violence or the tendency or the intention to create public disorder” was also an essential ingredient of the offence of sedition. The Supreme Court expressly rejected a literal interpretation of Section 124A. It also expressly rejected the Privy Council interpretation which did not require the prosecution to establish “incitement to violence or the tendency or the intention to create public disorder” as an essential ingredient of the offence of sedition. The Supreme Court justified this stand by pointing out that the crime of sedition was a crime against “the security of the State, which depends upon the maintenance of law and order” and that acts (spoken words) which did not have the “tendency to disorder or intention to create disturbance of law and order” would not amount to sedition even if such acts/ words “create disaffection or feelings of enmity against the Government”. In order to leave no doubt as to its ruling, the Supreme Court further stated that section 124A hits only those “activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence”. The Kedar Nath ruling later refers to this as acts “involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”
The Supreme Court supported its interpretation of Section 124A by stating that the alternative interpretation would render the provision unconstitutional under Article 19 (1) and (2).
So to summarize, the Supreme Court has stated that Section 124A cannot be interpreted literally. The two essential ingredients required to establish the crime of sedition under Section 124A are
(i) the acts complained of must be intended to have the “effect of subverting the Government” by violent means; and
(ii) the acts complained of must be intended, or have a tendency, to create disorder or disturbance of public peace/ law and order by resort to violence and must incite violence.
Therefore, mere slogan shouting against the State or the Government established by law which is not intended to have the “effect of subverting the Government” by violent means; and which is not intended to, nor has the tendency, to create disorder or disturbance of public peace/ law and order by resort to violence; and which does not incite violence will not amount to the crime of sedition under section 124A.
Thursday, April 7, 2016
Tuesday, April 5, 2016
Why high-flying India lawyer Harish Salve (exposed by #PanamaPapers #panamaleaks) must be properly investigated
How the Indian government investigates the extremely well-connected Harish Salve will be a test case for the rule of law and the justice system in India.
The attempt to cover-up has already started. Over at Legally India, a former Clifford Chance lawyer Kian Ganz who these days claims to be a journalist covering Indian legal news has already launched a one-sided, misleading and factually incorrect narrative that seeks to exonerate Salve even before he can be investigated. See http://www.legallyindia.com/bar-bench-litigation/harish-salve-panama-papers-coverage-unfair-privacy-invasion-disclosed-all-investments-paid-rs-175-cr-of-tax and http://www.livemint.com/Politics/JLoR5n29iz99xPgmpqB6sJ/Panama-Papers-coverage-unfair-privacy-invasion-Harish-Sal.html
It is strange the way Kian Ganz is defending Harish Salve, who sure has a lot to explain. Who was the friend Salve set up an off-shore company with? What mining interests was Salve about to invest in? Salve was a practicing CA himself before he became a lawyer. Is it his defense that he was led into illegality by his advisers? Even the facts of Salve's case are not out which will need investigating. It is strange how Kian Ganz jumps in at this premature stage to convey that everything was above board.
As of now everything Salve has said in his defence is just his unverified version. This has not been investigated. We do not know what assets his off-shore companies held, what the money trail is, whether assets were moved, whether he received illegal payments or bribes regarding his high-profile cases, whether he facilitated payments of bribes, whether there was money-laundering etc.
As of now Salve stands exposed as having been involved in questionable activity. Only an investigation can bring out the facts.
Otherwise we might as well just accept every criminal's version and let him off.
Why would a lawyer like Harish Salve set up an off-shore company with a "friend"? Who is this unidentified friend?
Salve also recommended some Canadian citizens Mahajans to Mossack Fonseca. Mossack Fonseca records include a recommendation letter from Salve to Rawi & Co in 2007, asking them to set up a company and a trust for Ramesh Mahajan and Asha Mahajan.
This is not a lawyer referring a client to a law-firm (as Kian Ganz attempts to spin it). This is prima facie high risk activity? Does it sound like the kind of activity a lawyer of Salve's position would ordinarily engage in? There appears to be dirt waiting to be uncovered. Salve needs to be investigated.
We have no idea who these Mahajans are. They could be terrorists, or fixers, or money launderers. Only an investigation will reveal the facts. Who are these Canadian Mahajans? What is their connection to Salve? Are these persons Ramesh and Asha Mahajan connected to Selan Exploration Technology? See http://www.moneycontrol.com/bse/shareholding/shp_promoters.php?sc_dispid=SET and http://www.selanoil.com/
Salve has responded with his version. Merely because the Indian Express has not responded further, does not imply that what Salve said has been established as Kian Ganz improperly and misleadingly suggests. The Indian Express is not the investigating agency here. They obviously have only limited facts which they have disclosed and these facts prima facie raise the issue of questionable activity by Harish Salve. It is not for the Indian Express to rebut Salve. We don't even know what papers the Indian Express has. We only know what they have disclosed.
Kian Ganz of Legally India is not the investigating agency and cannot give Salve the "clean chit" (to use Indian lingo) as he attempts. Ganz has clearly misrepresented facts and exposed his dishonest journalism in this "defence" of Harish Salve.
This issue also does not raise privacy concerns as Salve suggests and which Ganz flogs in his article. Salve was the Solicitor General of India. He has appeared before the Supreme Court of India in the biggest legal cases involving corporations and politicians. The public interest was at stake in these matters. Salve has also often appeared as amicus curie before the Supreme Court. Evidence pointing to potential illegal off-shore activities of Harish Salve including the possibility that these off-shore entities/ accounts could have played a role in influencing justice and the Courts needs to be fully investigated. Harish Salve cannot hide behind the cloak of privacy.
"MF records show that Salve is listed as a director in Crestbright Ltd, which was registered in 2012 with Salendra Swarup as another director." Who is this Salendra Swarup? Is it the lawyer Shailendra Swarup?
Harish Salve's statements cannot just be accepted at face value and this issue cannot be closed as Kian Ganz wants us to. We do not know what Salve disclosed or not in his tax papers. Again an investigation is required.
Kian Ganz runs his website based upon advertisements and funds that he raises from Indian law firms. His business Legally India is financially and otherwise dependent upon law-firms and lawyers close to Salve. Kian Ganz has an existing relationship with Harish Salve which he has failed to disclose. This is journalism at its worst. It is really a public relations exercise masquerading as journalism.
Kian Ganz runs his website based upon advertisements and funds that he raises from Indian law firms. His business Legally India is financially and otherwise dependent upon law-firms and lawyers close to Salve. Kian Ganz has an existing relationship with Harish Salve which he has failed to disclose. This is journalism at its worst. It is really a public relations exercise masquerading as journalism.
From http://indianexpress.com/article/india/india-news-india/panama-papers-india-part-1-list-garware-shishir-k-bajoria-harish-salve/
Harish Salve
Offshore entities: Crestbright Ltd, Pyebush Group Ltd, Edenval Ltd
Location:BVI
One of the most sought-after lawyers in the country, Harish Salve has represented celebrity clients in the Supreme Court. He was Solicitor General of India between 1999 and 2002.
MF records show that Salve and his family members registered three offshore companies in the BVI — Crestbright Ltd, Pyebush Group Ltd and Edenval Ltd — through the London-based agent Rawi & Co with Vasant Vihar in New Delhi as the India address. MF records include a recommendation letter from Salve to Rawi & Co in 2007, asking them to set up a company and a trust for Ramesh Mahajan and Asha Mahajan.
MF records show that Salve is listed as a director in Crestbright Ltd, which was registered in 2012 with Salendra Swarup as another director. The other two entities were registered in 2008 with Salve’s wife Meenakshi Harish Salve and daughter Sakshi Harish Salve as directors. MF records show that Edenval Ltd is listed as a shareholder in the incorporation documents of Pyebush Group Ltd.
Response: Salve said: “I set up Crestbright in 2012 — as a holding company to hold my lawfully made and fully disclosed investments based in the UK but the company has zero assets and zero income.
“I have been remitting funds since maybe 2003 under LRS. Out of these, some were invested in a portfolio in the UK and a patent in the US (a 25% stake with three other friends). Wanted to park these in a BVI company as at that time I was not a UK tax resident and wanted to avoid becoming one. Since 2014, I am a dual tax resident — UK and India, and so have not moved any assets into Crestbright.
“Edenoval was set up with a friend, and Pyebush was set up by me to hold shares in Edenoval. My friend had suggested some investments outside India and outside UK. Nothing materialsed; no income — no assets. All the three companies are virtually defunct.
“All my offshore assets upto 2014 were created out of funds remitted from my Indian bank to my UK bank account. After 2014, I have income in the UK too — and made some investments out of that. Since bank accounts are routinely called for by tax authorities, all Indian and UK bank details are filed. Nothing is withheld.
- See more at: http://indianexpress.com/article/india/india-news-india/panama-papers-india-part-1-list-garware-shishir-k-bajoria-harish-salve/#sthash.b7eZmmWf.dpuf
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