Former Supreme Court judge Justice Madan B Lokur criticized the recent Ordinance brought by the Uttar Pradesh Government to criminalize religious conversions by marriage.The judge described the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020, promulgated last week, as "placing on the backseat the freedom of choice and dignity". "States of Madhya Pradesh,...
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UP Ordinance Against Religious Conversions By Marriage Puts Freedom Of Choice & Dignity On Backseat : Justice Madan Lokur
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Former Supreme Court judge Justice Madan B Lokur criticized the recent Ordinance brought by the Uttar Pradesh Government to criminalize religious conversions by marriage.
The judge described the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020, promulgated last week, as "placing on the backseat the freedom of choice and dignity".
"States of Madhya Pradesh, Karnataka, Haryana, Assam are planning to come up with similar ordinances. The purpose of this law is to prohibit what is popularly known as love jihad", he said.
"Although 'love jihad' has no definition, one chief minister has defined it as 'Jihadis playing with the honour and dignity of our sisters and daughters by hiding their real names and identities'. Another chief minister went to the extent of saying that 'if these Jihadis don't mend their ways, it is the beginning of the journey to their graves'. Is this possible death sentence already pronounced sanctioned under the Constitution or by the law? This seems to be a resurgence of the trend of mob lynching...What about the freedom of choice? Why not declare a war on child marriage, which by definition is a forced marriage?", wondered Justice Lokur. "Our carefully-crafted dignity jurisprudence which has been assiduously developed by the Supreme Court over years is being given a cremation of the Hathras kind", he said
Justice Lokur, now a judge of the Supreme Court of Fiji, called 'Spade a Spade" at the Seventh Sunil Memorial Lecture held on November 29, addressing the virtual audience on the topic: "Judiciary and Social Justice, Dignity and Personal Liberty- Human Rights and Fright".
UP Ordinance Criminalizing Religious Conversion By Marriage Is An Assault On Personal Liberty
Stating that the judiciary in India has travelled a long distance so far as personal liberty is concerned, former judge of the Supreme Court of India, Justice Madan B. Lokur, observed that the courts now seem to be going in reverse.
Justice Lokur, indicating how dissent is being now deemed as sedition very often, which is in turn being treated as an offence under the UAPA, warned that soon enough any such offence would begin to attract the National Security Act, which leads to the frightening prospect of the invocation of the preventive detention law. "Rights would then turn into frights", he said.
"Courts need to walk the talk, otherwise like Humpty Dumpty, there will be a great fall of social values, which nobody will be able to put together again", articulated Justice Lokur.
He referred to the instance of journalist Sidhique Kappan who was on his way to Hathras to cover the story of the rape and murder and the undignified remission of a Dalit girl, when he was detained under section 107 and 151 of the Cr.P.C. on the apprehension of breach of peace, disturbing public tranquility and the commission of a cognizable offence. "Ideally he should have been released on furnishing a personal bond of good behaviour immediately. However, the safeguards of sections 111 and 115 of the Cr. P.C. were not followed...he was not given time to consult with a lawyer, and when he was produced before the court, he was remanded to judicial custody. Subsequently, a FIR for sedition and for offences under the UAPA came to be registered against him. A union of working journalists moved a habeas corpus petition before the Supreme Court under Article 32. The Hindu and a law-related website reported that the Supreme Court was reluctant to entertain the petition, despite the fact that it concerned the crucial issue of personal liberty and the freedom of the press, and observed that the union could approach the jurisdictional High Court with the same prayer. Liberty was granted to the union to amend the petition and the petition was adjourned by four weeks", he narrated.
"Article 32 guarantees the right to move the Supreme Court for the enforcement of any of the Fundamental Rights accorded by Part III of the Constitution and it was this jurisdiction which was invoked by the journalist", he said.
Justice Lokur described the order of the CJM disallowing the journalist to meet his lawyer and the consequent helplessness expressed by the jail authorities as a violation of basic human rights and the rule of law- 'The CJM passed a cryptic order noting that no such order has been passed by the Supreme Court and there is no power of attorney annexed to the application and hence, the application is rejected. Look at the impossible situation created by the magistrate and further aggravated by the jail authorities to deny access to justice"
The judge cited more such instances of "absence of grace in the criminal justice system", of activist Varavara Rao, an accused in the Bhima Koregaon case, activist Stan Swamy, and of the anti-CAA protesters.
"An 80-year-old (Rao) who had been in judicial custody for almost 2 years under the draconian UAPA sought bail. The Bombay High Court itself noted that the petitioner was almost on deathbed. However, no bail was given. The super senior citizen who was arrested on the allegation of being a sympathiser of terrorism had even tested Covid positive earlier. However, the NIA filed 170 page affidavit opposing the bail. They argued that the petitioner is trying to seek undue benefit of the prevailing pandemic and his old age to secure bail. Even when the petitioner in question was transferred to a super speciality private hospital, it was opposed by the NIA, urging that the transfer be to a government hospital, otherwise it sets the wrong precedent!", expounded Justice Lokur.
"There is another case where a 82-year-old (Swamy) arrested under the UAPA suffers from Parkinson's disease. It may be noted that the Supreme Court in the D. K. Basu case has held that anyone who is arrested must be examined by a medical practitioner immediately on arrest and thereafter, in every 48 hours. This condition may be difficult to comply with, particularly in these times of the pandemic, and on account of the overcrowding in the jails, but basic humanity requires that atleast a super senior citizen be medically examined on arrest and frequently while in judicial custody. The Parkinson's disease would have been known if only this basic requirement had been complied with. On account of his disease, he can't even hold a glass and requires a sipper or a straw for drinking water, even which was denied to him. He had to move the judiciary for a straw or a sipper and the NIA sought 20 days' time to reply. The judiciary, believe it or not, accepted this request. I am sorry but this is absolutely bizarre, and unacceptable, inhuman, in my opinion. He is managing with the help of the inmates and, in his own words, he says that humanity is bubbling in the jails. But clearly not in the hearts and in the minds of the prosecution or the trial court. Never mind the offence, but can a senior citizen of this country be treated in such disgraceful manner? This is why offenders who have fled abroad try to stall extradition to India", said Justice Lokur.
Next, the judge expounded on the anti-CAA riots which had broken out in North Delhi earlier this year- "The police filed a chargesheet running into 17,000 pages. The accused is required to be given a copy of the chargesheet. The prosecution indulged in a bit of a sophistry in this case and told the trial court that the law does not differentiate between soft copies or hardcopies, and accordingly the chargesheet can be supplied to the accused on a pen drive. The trial court was told that the hardcopy cannot be supplied because of a paucity of funds. Not buying this argument, the trial court directed hard copies to be given to each and every accused. However, the prosecution somehow found the sums to challenge this order and pay their lawyers. Until this matter is decided, the accused persons have been left in custody holding the pen drives. Should an under trial prisoner be forced to use his scarce resources on lawyers to assert even the basic rights", urged Justice Lokur
On the aspect of dignity, Justice Lokur commended the 2014 Supreme Court decision in the case of NALSA, according recognition to gender identity and sexual orientation. "The Supreme Court held that transgenders constitute the third gender. This was a great decision for a community which had been shunned aside by the society for years. As a consequence of this judgement, the transgenders could vote and even contest elections. One was appointed as the goodwill ambassador by the Election Commission of India and another as a spokesperson for a political party. Then, there was the 2018 decision in Navtej Singh Johar, which was a major leap forward and upheld 'identity with dignity' for the LGBTQ community", he elaborated.
"But have we implemented the constitutional provisions and these judgements in letter and spirit? The Transgender Persons (Protection of Rights) Act, 2019 which was passed has taken away in part what had been extended by these judgements of the court. Suffice it to say that this Act has now been challenged in the Supreme Court. But like many other cases of importance, it is pending adjudication", remarked the judge.
As regards the decriminalisation of homosexuality, Justice Lokur commented, "The court has not been able to walk the talk. It is evident from the case of a gay lawyer of acknowledged competence, who was being considered for elevation as a High Court judge. But the collegium is yet to forward his name in recommendation, even after a lapse of two years. So are all these developments only on paper?"
On the issue of regression of women, Justice Lokur indicated the judgement of the Supreme Court in the 2018 Hadiya case, where the court, despite having upheld the marriage between the two consensual adults, had permitted the NIA to continue investigation into any matter of criminality. Accordingly, the NIA had investigated several interfaith marriages, only to conclude that there was no fraud, or coercion or criminality. "Unfortunately, the liberty granted by the Supreme Court to the NIA led to the enactment of a Freedom of Religion Act of 2018 by the state of Uttarakhand, which declares any marriage entered into only for the purpose of religious conversion as null and void. Surprisingly, this Act does not apply to live-in and other forms of consensual relations", he said.
As regards social justice, Justice Lokur pointed out several examples of the laws which, though enacted by the Legislature, have not been implemented in letter and spirit by the Executive. The first was the instance of the National Rural Employment Guarantee Act of 2005, which issue was brought to the Supreme Court by NGO Swaraj Abhiyaan. "The failure of the central government to release funds for several aspects of the scheme, such as 100 days guaranteed employment, was the constant grievance of the petitioner. Further, no interest was being paid on the delayed payment of wages despite the 15 days' deadline in the Act", recounted the judge.
"The other Act was the National Food Security Act of 2013. Many state governments had not set up the commissions to monitor the interests of the impoverished and the hungry", he continued.
"The worst-affected in this category of the marginalised sections are the children and the building and construction workers. It came on record that children's homes, where the children in need of care and protection are required to be housed, are not registered despite the Juvenile Justice Act having been in force for several years. A social audit was directed by the Supreme Court but the process was not completed. A recent report based on this audit, by the National Commission for Protection of Child Rights, discloses that 28.5% of these homes are not registered and 38% of them do not have any measures to check physical or emotional abuse of children. And there are reports of abuse coming every month!", he exclaimed.
"Then there is the Welfare Cess Act of 1996, which requires the cess to be used by the Welfare Board for the welfare of construction workers. This is a 25-year-old law, but it has not come to be implemented even now. There is a recorded incident of the usage of the cess for purchase of washing machines and computers by the Welfare Board. It is not clear as to how these items would aid the welfare of the workers", narrated the judge.
Further, he discussed the non-implementation of the laws meant for the hapless migrants that came to the fore amidst the lock down- "What was surprising was the amazing attitude of the State which represented before the Supreme Court, through the Solicitor General, that as of 11 AM on March 31, there is nobody on the roads!"
"It seems that these laws, while on the agenda of the Parliament, are not on the agenda of those who govern us", he expressed his regret.
The judge proceeded to mention those marginalised sections of the society for whom a social security law is yet to even be enacted.
The judge cited the conditions of the widows of Vrindavan, Varanasi, Jagannath Puri, who are living in abject poverty, and whose only means of sustenance, of procuring a breakfast, a lunch and a dinner, is chanting in the temple and alms received at the mercy of those seeking divine grace- "They spend their nights in what can be called an Ashram or a Dharamsala and they are treated as social outcasts"
"Second is the case of the lakhs and lakhs of brick kiln workers whose working conditions would shock the conscience of any person. There is a recorded incident where some of these workers were given an advance to work in one state but were taken to another state altogether, where they refused to work. They ran away and, unfortunately, two of them were caught. The contractor actually gave them the option of either having their hands or their legs chopped. Finally, their palms were chopped off and they were left crippled", the judge expressed his consternation.
"The third category is of the undertrial prisoners, the protection of whose rights is dependent only on jail manuals of doubtful builtage. There are issues of death by unnatural causes, denial of access to justice, overcrowding and the issue of bail not getting listed in court. Even if the bail is listed after much running around, it is denied and mostly the ground which is cited that the allegations are grave and serious. And this is the situation even in case of charges of sedition and unlawful activity amounting to terrorism, which are mostly without evidence, leave alone cogent evidence", he advanced.
Justice Lokur reflected that if the Parliament has legislated or even if any sphere is ungoverned by a law, or the executive does not implement the law, the Supreme Court cannot simply fold it its hands and plead helplessness. He cited the judgement of the Supreme Court in the 1977 Mohinder Singh Gill case where the Supreme Court said that in case of any gaps in the legislative framework on free and fair elections, the Election Commissioner cannot fold his hands and pray to God for divine inspiration and must exercise his power independently and tackle the situation. "The Supreme Court must heed what it said 40 years ago. Even if cynics call this a trend of judicial activism or overreach, the judiciary must be proactive in the interest of those on the margins. It cannot abdicate its obligation as a lot is still to be done!", urged Justice Lokur.
He said that though the judiciary and India has contributed a lot towards social justice, dignity and personal liberty, some thoughts have now been placed on the backburner and the time is now to try to bring focus again on these three aspects.
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