Delhi Violence: UN bid to intercede in SC not illegal

Delhi Violence: UN bid to intercede in SC not illegal

Olav AlbuquerqueUpdated: Friday, March 06, 2020, 01:30 AM IST
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India’s refusal to accept the locus standi of the UN High Commissioner for Human Rights to intervene in the Supreme Court does not appear tenable because our country is a signatory to the UN Convention on Human Rights. When India is part of the comity of nations, its stand that the Citizenship Amendment Act (CAA) is an internal matter will not hold good because the Delhi riots have claimed 50 lives making a mockery of the right to life and liberty guaranteed to all citizens — irrespective of religion, race, caste or domicile.

And these basic rights include the right to dissent peacefully and without arms by raising slogans. The Supreme Court may opine that public places cannot be obstructed by dissenters who feel their protests will go unnoticed unless they occupy Shaheen Bagh. Like it or not, Shaheen Bagh makes us think of China’s Tiananmen Square in 1989 which ended with those who fought for democracy literally going through the gate of heaven — or Jannat — which is what Tiananmen Square means. But most of the Shaheen Bagh protesters are still alive — which makes the comparison with Tiananmen odious.

Dissent does not include the right to call for secession of Jammu and Kashmir or India’s north eastern states from the mainland. And those who shout such slogans should be jailed without qualms. For India will always remain a union of corrupt and communal politicians from different states and political parties who unite with naïve students and lumpen goondas to murder and pillage people by exploiting religion.

So, if the Supreme Court does not allow the intervention application of the UN High Commissioner for Human Rights, we can read between the lines. It is the first time in the Indian judicial history that the UN High Commissioner has sought to intervene in the Supreme Court because this office must ensure human rights are enjoyed by all the peoples of 193 member-states.

Nobody disputes Parliament’s sovereignty to enact laws like the Citizenship Amendment Act but this contentious law has given rise to bloodshed with 50 persons being killed in Delhi and property worth crores of rupees going up in flames because the police allegedly joined the rioters in some instances, if the BBC is to be believed.

If we accept the admission of the 47th Chief Justice of India (CJI) Sharad Arvind Bobde that the courts lack the infrastructure to prevent riots which is the domain of the police and the executive, (through its Intelligence Bureau) we are forced to accept that there is some veracity of police complicity in the Delhi riots just as there was incontrovertible evidence of the Mumbai police’s complicity in the 1992-93 riots after the razing of the Babri Masjid. And just as the Maharashtra government trashed the Srikrishna Report which indicted the Shiv Sena which has now turned secular, it is unlikely the Delhi policemen will be indicted for their complicity in the Delhi riots. Irrespective of whether the Congress, the BJP or the Aam Aadmi Party is in power.

Government complicity in riots dates back to 1984 when over 2,800 Sikhs were massacred in Delhi and 3,350 throughout India followed by the 1992-93 riots in Mumbai and the 2002 pogroms against the Muslims in Mumbai and Ahmedabad followed by the recent Hindu-Muslim riots in Delhi. Nationalism can be used to camouflage a sinister intent of those in power. And those who fall prey to inflammatory slogans face life imprisonment while the police protect their political masters such as some MLAs and ministers who use the police for their own nefarious ends.

Be that as it may, given the spectacle of high court judges who are transferred after delivering judgments which are inimical to those in power, judicial independence appears to be chimerical though we have many excellent judges. Former collegium member Jasti Chelameshwar has admitted that a few judges are transferred because of lack of integrity while some others are shunted because the Union government may speak to the CJI. During Chelameshwar’s tenure, there were no records kept.

As CJI Sharad Bobde himself admits, the courts enter the arena after the damage has been done. The police whether in Mumbai, Delhi or Ahmedabad cannot investigate themselves which is why maverick lawyer Prashant Bhushan sought separation of the law and order and investigative wings of the Delhi police, Predictably, his petition was not granted urgent hearing by an overburdened apex court.

The United Nations Military Observer Group in India and Pakistan is a result of the faux pas of Pandit Jawaharlal Nehru for taking the Kashmir dispute to the UN when our doughty military could easily overpower Pakistan. India cannot guarantee jobs to its own citizens, so there is no reason why refugees from other countries should be welcomed irrespective of their religion. In this endless debate and violence, we miss the kernel which is refugees from any country, irrespective of their religion, are not welcome because our economy cannot sustain them.

For our Constitution is religion-neutral, caste-neutral and gender-neutral although our judges adjudicate on all these issues. Their judgments are learned opinions which are subjective based upon issues raised at certain times which will change as these judgments are bound to change with changing times.

The point here is Parliament is undoubtedly sovereign in enacting the CAA which appears to have religion as its crux. This is forbidden by the preamble of the Constitution itself and Articles 14, 15 and 16. So whether the Supreme Court upholds the CAA as being constitutionally valid or invalid will validate the concept of judicial independence and sovereignty which is why the 44th CJI Jagdish Singh Khehar struck down the National Judicial Appointments Commission Act and the 99th amendment. But whether CJI Sharad Arvind Bobde with his erudite colleagues will allow the UN High Commissioner to intervene or strike down the contentious CAA which has sparked off death and destruction remains to be seen.

The writer holds a PhD in Media law and is a journalist-cum-lawyer of the Bombay High Court.

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