Jurisprudence is an esoteric subject to the laity. Judges
are demigods and lawyers their mediators! Despite this lofty public perception,
Indian courts have in the past adjudicated matters which the laity might find
frivolous and, in some cases delivered judgements which the laity might find
bizarre. Some years ago a High Court sat on Gandhi Jayanti day (one of three
compulsory Indian national holidays), to adjudicate a matter related to a
cricket board!
In the Bhima Koregaon case in which ‘social activists associated with Maoist links’ were
accused of making inflammatory speeches leading to wide–spread violence, the
Supreme Court held that dissent was a safety–valve of democracy. It was another matter
that the same Supreme Court not only refused bail to a
journalist but when his lawyer pleaded that his life was in danger, gratuitously added in an obiter dictum, that for one whose life was in danger, a jail was the safest place to be in!
In 2015 the High Court of Punjab and Haryana decreed that jail inmates have a right to have sex with their partners!
In 2018 the Bombay High Court determined that limiting only four players to a table in a game of rummy was unreasonable!
The
Supreme Court’s decision in the Indian Social Action Forum (INSAF) vs the Union of India (CivilAppeal No.1510 of 2020—Arisingout of SLP (C) No.33928 of 2011) makes
for curious reading. The NGO which claims to be “resisting globalization,
combating communalism and saving democracy” filed the SLP in the Supreme Court
challenging the Foreign Contribution (Regulation) Act,2010.
In what has become a standard template
(for challenging Indian government acts by now), the NGO challenged the FCRA on
the grounds that it violated its fundamental rights under Articles 14, 19 and
21 of the Indian Constitution. The Government
contended that the appellant organisation is not entitled to invoke fundamental
rights as they are guaranteed only to citizens and that the appellant
organisation cannot be considered a citizen. While
agreeing with the contention that being an organisation the NGO cannot invoke
rights under Article 19, the Supreme Court has “read
down” Clause 3. (VI) of the FCRA Rules which were framed based on the Act. Here
is the relevant clause:
“3. Guidelines for declaration
of an organisation to be of a political nature, not being a political party –
The Central Government may specify any organisation as organisation of
political nature on one or more of the following grounds:
(ii) Any Trade Union whose
objectives include activities for promoting political goals;
(iii) Any voluntary action group
with objectives of a political nature or which participates in political
activities;
(iv) Front or mass organisations
like Students Unions, Workers' Unions, Youth Forums and Women's wing of a
political party;
(v) Organisation of farmers,
workers, students, youth based on caste, community, religion, language or otherwise,
which is not directly aligned to any political party, but whose objectives, as
stated in the Memorandum of Association, or activities gathered through other
material evidence, include steps towards advancement of Political interests of
such groups;
(vi) Any organisation, by whatever
name called, which habitually engages itself in or employs common methods of
political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail
bharo’ in support of public causes.”
The
Court nuanced that while ‘bandh’, ‘hartal’ ‘rasta roko’ etc. are
legitimate political activities, an NGO resorting to the same activities need
not necessarily be categorised as a political organisation. Did the Court
err in nuancing its interpretation of the law on the grounds that it was ‘vaguely’
or ‘ambiguously’ worded?
It
is not apparent from the 23–page judgement whether the Court has gone
into the antecedents of the NGO or even whether the government has brought them
to its notice. Curiously, very is little is known of the organisation which
calls itself Indian Social Action Forum shortened as INSAF with its tell–tale Arabic
connotation. Its website does not give anything away. We do not know who its
founders, directors or present administrators are. All we know is that it calls
itself ‘a national forum of
over 700 movements and NGOs in India’. Its website is full of ‘papers’, re–posted
or hyperlinked from other sources, calling for halting every project which in
anyway advances human progress from developing infra–structures to constructing
nuclear power plants.
Among those
hyperlinked is a paper by Ben Hayes entitled “Counter–Terrorism,‘Policy Laundering’ And The FATF—Legalising Surveillance, Regulating CivilSociety”. The number of NGOs/NPOs involved in the
preparation and funding of the paper (which can be seen peppered across its
pages) tells its own story. They include ‘Transnational
Institute’, ‘Statewatch’ and ‘Catholic Organisation for Relief and Development’,
shortened as Cordaid. While nations across the world struggle to control
terrorist organisations, the paper calls for making the FinancialAction Task Force (FATF), ‘the global money laundering and terrorist financing
watchdog’, virtually ineffective. It
calls into question UNSC Resolution 1373 of September 28, 2011 which requires
member nations “to criminalize the support of terrorism by freezing the assets
of suspected terrorists”.
Can
judges be absolutely dispassionate in adjudicating legal disputes? Or are they
only too human to be ‘products of the times’ in which they live and work? Oliver Wendell Holmes Jr. (1841–1935), a U. S. Supreme Court justice known as “the
Great Dissenter” was a study in contrast. He delivered judgments that made him
look like a product of his times, like his judgement in the Virginia eugenics aka Buck vs Bell (1927) case. In marked contrast in the Lochner vs
New York (1905) case he ruled removing the 60–hour per week work limit for
bakery workers. But his ruling in the Schenck
vs United States (1919) case is conspicuous for its interpretation of
the US First Amendment, which protects US citizens’ freedom of speech from
legislative interference. The ruling held that in times of war, national
security takes precedence over individuals’ right to freedom of speech.
Back home in India, are agitprop psyops getting to the judiciary?udiciary?
Back home in India, are agitprop psyops getting to the judiciary?udiciary?
