2022: Looking Back at Negative Rights Jurisprudence From Indian Courts

As 2022 draws to a close, here is an annual round up of orders and judgements from India’s constitutional courts — High Courts and the Supreme Court of India. In a month by month look, CJP brings you a calendar of the year gone by, an overview of verdicts that raised some eyebrows and violated one’s right to liberty and fair trial, resulting in disappointment to the ongoing battle for the realisation of constitutional rights.

DECEMBER

Bilkis Bano’s Review Petition dismissed by the Supreme Court

The Supreme Court dismissed the review petition that was filed by Bilkis Bano seeking review of the court’s judgment in May, 2022 allowing the Gujarat government to decide remission application of the 11 convicts. The petition challenging the remission itself is still pending before the court and will be heard after the court’s winter vacation.

Eleven convicts were held guilty and sentenced to life for the gang rape and murder of Bilkis Bano and 14 of her family members including her 3-year-old daughter. The convicts were released by an order of the Gujarat government in August this year, under its remission policy of 1992. The review petition, filed by Bilkis Bano’s lawyer, Shobha Gupta, had contended that the Gujarat High Court judgement is contrary to Section 432(7) (b) of CrPC which states that the appropriate government to decide remission is the government of the State where the trial was held. A court in the state of Maharashtra had decided the case and sentenced the convicts in 2008.

While dismissing the petition, the bench held that there appeared to be “no error apparent on the face of record, which may call for review of the judgment dated 13th May, 2022” and further held that the cases relied upon by the petitioner are of no assistance to her in this review petition.

NOVEMBER

Exclusion of SC/ST/OBC from EWS is valid for keeping balance of equality: SC bench in majority

In a majority judgement of 3:2, a five-judge constitutional bench of the Supreme Court upheld the reservation introduced for the Economically Weaker Sections (EWS) up to 10% in education and public employment to be constitutionally valid. The bench of Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala held the majority view while CJI UU Lalit and Justice S Ravindra Bhat took the dissenting view that EWS reservation was not constitutionally valid for being exclusionary to the disadvantaged classes i.e. Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backwards Classes (OBC) (non-creamy layer).

The majority judgment held that the reservation structured singularly on economic criteria does not violate any essential feature of the Constitution of India and does not cause any damage to the basic structure of the Constitution of India. It further observed that exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as economically weaker sections, being in the nature of balancing the requirements of nondiscrimination and compensatory discrimination, does not violate the Equality Code and does not in any manner cause damage to the basic structure of the Constitution of India.

Lastly, the majority bench held that reservation for EWS does not breach the limit of the 50% ceiling because that ceiling is not inflexible and in any case, applies only to the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.

In the minority judgment, dissenting judges have held that the introduction of reservation for EWS is exclusionary and violates the basic structure on the ground of exclusion. The basis of their dissent are the provisions of the Equality Code (Articles 14, 15, 16, and 17) and how it is a part of basic structure of the Constitution. The minority judgement held that introduction of EWS reservation [through insertion of Article 16(1)] violates the right to equal opportunity, in addition to the non-discriminatory facet of equality, both of which are part of the equality code and the basic structure.

OCTOBER

Delhi HC denies bail to Umar Khalid as “prima facie case” established

In the larger conspiracy case of the Northeast Delhi riots, the Delhi High Court refused bail to student leader Umar Khalid. Since September 2020, Khalid has been imprisoned. Khalid's appeal against the trial court's decision to refuse him bail in the case was rejected by a division High Court bench. The bench stated while pronouncing the court order that they did not find any merit in the bail appeal. The High Court bench also stated that there is “prima facie case” established against Umar Khalid in regards to the role played by him during the riots, chakka jaam and destruction of public property. Emphasizing on Khalid’s role in organizing the protests that took place in various sites, the court order stated that the name of the appellant finds recurring mention from the beginning of the conspiracy till the culmination of the ensuing riots.

Khalid was arrested by the Delhi Police in September 2020, under the Unlawful Activities (Prevention) Act (UAPA), on the charge of larger conspiracy to allegedly unleash violence to defame the Indian government during a visit by former US President Donald Trump. While Khalid was granted bail in the matter concerning Indian Penal Code and Arms Act charges, he continues to remain in custody in connection with the Delhi Riots larger ‘conspiracy case’ concerning UAPA charges under FIR No. 59 of 2020.

Bombay HC order acquitting GN Saibaba and five others in Maoist links case suspended by SC

The Supreme Court suspended an order by the Bombay High Court that acquitted former Delhi University professor GN Saibaba and five others in a case surrounding their Maoists links. The SC held that the HC had not considered merits of the case and instead granted the acquittals on the grounds of lack of sanction. The result of this urgently heard intervention filed by the Maharashtra government is that professor GN Saibaba and all others, including Prashant Rahi will remain in jail. The Court also issued notice and granted accused four weeks to file counter applications.

A day before the order of the Supreme Court, the Bombay High Court had acquitted GN Saibaba (accused no.6), who is 90 percent disabled and wheelchair-bound. The court had also acquitted the other 5 accused, namely Mahesh Kariman Tikri, Pandu Pora Narote (who died in August 2022), Hem Keshavdatta Mishra, journalist Prashant Rahi Narayan Sanglikar and Vijay Nan Tirki. In 2017, they had been accused of “waging war” against the nation and had been convicted under sections 13 and 18 of the Unlawful Activities (Prevention) Act (UAPA) read with Section 120 (B) of the Indian Penal Code by a Sessions Court in Gadhchiroli. The HC bench had allowed their bail appeals and ordered their immediate release. Shortly after the Bombay HC Order, Solicitor General Tushar Mehta demanded an urgent hearing against the appeal, claiming the acquittal was not justifiable.

Jyoti Jagtap Denied Bail in the Elgar Parishad Case by the Bombay High Court

The Bombay High Court denied bail to Jyoti Jagtap, an accused in the Bhima Koregaon-Elgar Parishad Case under the anti-terror UAPA. Jyoti Jagtap, is reportedly a member of Kabir Kala Manch (KKM) — a cultural group branded as a front organisation of the banned CPI (Maoist). She was arrested by the NIA in September, 2020. According to NIA, it was Jagtap and others organised the Elgar Parishad on December 31, 2017 that led to violence the following day. While dismissing her appeal, the court added that NIA's allegations were prima facie true.

The NIA submitted that Milind Teltumbde, who died last year, had discussed the Elgar Parishad event with the three Kabir Kala Manch members. It also claimed Maoist ideology was spread at the event with the help of these three and other persons. Jagtap was one of the main conspirators, alleged the agency. The agency also accused Jagtap of undergoing arms training at the Korchi forest.

AUGUST

Allahabad High Court denied bail to Siddique Kappan

The Allahabad High Court denied bail to Kerala journalist Siddique Kappan in connection with the Hathras conspiracy case where he has been booked under the Unlawful Activities Prevention Act (UAPA) and other charges. Justice Krishna Pahal of the Lucknow bench of the Allahabad High Court observed that based on the investigation on record, the journalist “had no work at Hathras.” Kappan was arrested while he was on his way to Hathras in Uttar Pradesh where a Dalit woman had died after allegedly being gang-raped.

Later, the Supreme Court granted bail to Kerala journalist Siddique Kappan in September 2022. However, Kappan continued to remain incarcerated in jail because a local court in Lucknow had rejected his bail in the PMLA case on October 31. Even under the UAPA matter, in which he was granted bail, the verification sureties, including the one given by former vice-chancellor of Lucknow University, Roop Rekha Verma, have still not been completed by the authorities.

JULY

Plea filed to seek independent probe into alleged extra-judicial killings of Chhattisgarh tribals by security forces dismissed by SC

The Supreme Court dismissed a writ petition seeking independent investigation into alleged extra-judicial killings of tribals in Bastar, Chhattisgarh by security forces during anti-Naxal operations in 2009. The court additionally imposed an "exemplary cost" of Rs 5 lakhs on the first petitioner. The Central Government had reportedly filed an application seeking perjury proceedings against the petitioners alleging that they were depicting the executions carried out by Naxals as done by security forces. Denying the Centre’s plea to initiate such proceedings, the Court reportedly said that action can be taken against the petitioners for making false charges under IPC Section 211 and for criminal conspiracy.

JUNE

Zakia Jafri SLP claiming conspiracy in post-Godhra genocide dismissed by the Supreme Court

‘There was no infraction of the rule of law (in Gujarat in 2002)’, said the Supreme Court as it dismissed Ms. Zakia Jafri’s petition seeking re-investigation/further investigation into her allegation of a larger conspiracy in the 2002 Gujarat Riots. Zakia Jafri lost her husband, Congress leader Ehsaan Jafri, to the riots during an attack on their residence in Gulberg Society. Mrs. Jafri, along with CJP (through its Secretary Ms Teesta Setalvad) as second petitioner, contended that proper probe was never conducted, that the Protest Petition had in any case galvanised enough material from the SIT’s own investigation record to be put to trial and that the Magistrate could have both taken cognizance of existing material and ordered further investigation into those issues that required a further probe. Detailed arguments made over several days starting October 26, 2021, presented several examples of investigative lapses before the Supreme Court.

Petitioners pointed out, among other things, that the State Intelligence Bureau (SIB) had fore-warned the state government’s home department of the build-up of communal tension and also cited the Tehelka sting operation tapes which were relied upon during trials in individual cases such as the Naroda Patiya trial

While deciding the case, the bench held that the SIT had investigated all that it was supposed to and there was no proof of conspiracy, as was being claimed by the petitioners.

Petition to quash FIR against Alt News Founder Mohammed Zubair dismissed by Allahabad HC

The Allahabad High Court dismissed a petition filed by Alt News Co-founder, Mohammed Zubair challenging a FIR registered against him for a tweet in which he allegedly called three Hindu seers - Yati Narsinghanand Saraswati, Bajrang Muni Das and Anand Swaroop - ‘Hate mongers.’ Zubair was booked under section 295-A of the Indian Penal Code and section 67 of the Information Technology Act, 2000 in the said case. A bench comprising Justices Ramesh Sinha and Ajay Kumar Srivastava dismissed the petition on the ground that it lacked merit.

Serve at Cow Shelter for a Month, Bail Condition to Slaughter Accused: Allahabad HC

The Allahabad high court granted bail to an accused in a cow slaughter case on condition that he will serve at a cow shelter for a month. Besides, the accused was further asked to deposit Rs 1 lakh in favour of a registered cow shelter. A first information report (FIR) was lodged against Saleem under sections 379 (theft) of the Indian Penal Code and 3/8 of the Uttar Pradesh Prevention of Cow Slaughter Act in Bareilly district. The accused had been languishing in jail for the past ten months, since August 3, 2021. After pursuing submissions made by the both parties, the court said that the absence of any convincing material to indicate the possibility of tampering with the evidence, the Court was of the view that the applicant may be enlarged on bail.

Unnatural in Indian culture that father-in-law would rape daughter-in-law: Allahabad HC

The Allahabad High Court’s Single-judge Bench of Justice Ajit Singh granted bail to a man accused of raping his daughter-in-law and held the accusations are falsely made, to humiliate his reputation in the society. The complainant of the case alleged that on March 01, 2018 at around 06:00 P.M, the accused (father-in-law of the complainant) along with other co-accused came to the house of the survivor's brother, and upon discovering her to be alone, the father-in-law started abusing her, and then both the accused tried to rape her.  The Court then granted anticipatory bail to the applicant on the condition of furnishing a bail bond and two sureties.

Bail denied to Vernon Gonsalves and Arun Ferreira by the Bombay HC

In May, 2022 the Bombay High Court rejected a review petition filed by Varavara Rao, Vernon Gonsalves and Arun Ferreira seeking default bail and factual corrections in the order made out against them by the lower court. They have all been accused in the Bhima Koregaon-Elgaar Parishad case.

On December 1, 2021, a bench led by Justice Shinde had granted default bail to a co-accused Sudha Bharadwaj while denying the bail to eight other accused in the case namely, which included the above mentioned three, on account of not filing their pleas before the lower court within the time stipulated by law unlike Sudha Bharadwaj. However, the said order was then challenged by the three mentioned above wherein they claimed that there was a factual error as they had applied for default bail on November 20, 2018, just a few days following Bharadwaj’s application but the Court failed to note that the lower court had rejected the default bail pleas filed by them, including Bharadwaj and two other co-accused, through a common order. Dr Varavara Rao has been granted bail on medical grounds by the Supreme Court.

APRIL

Meat and liquor sale ban refused to be struck down by the Allahabad HC

The Allahabad High Court dismissed a Writ Petition against the Uttar Pradesh administration for banning the sale of meat and liquor in Mathura-Vrindavan region. The State Government of Uttar Pradesh under its Notification dated September 10, 2021 had notified 22 wards of Mathura Vrindavan Nagar Nigam as ‘Holy Place of Pilgrimage’. The notification had banned the sale of liquor and meat within a 10 square kilometers radius around Krishna Janmabhoomi in Vrindavan, Mathura. On September 11, 2021 another consequential Order was passed by the Food Processing Officer, Food Safety and Drugs Administration, Mathura according to which the registration of shops selling meat and non-vegetarian restaurants were suspended with immediate effect. The said petition was then filed by a social worker in the High Court of Allahabad against the State Government’s decision to ban the sale of meat and liquor. 

While deciding the case, the High Court opined that since there are no averments about the Notification dated September 10, 2021, and the Government Order September 17, 2021 issued by the State Government, the Petitioner was not aggrieved by the same. Hence, the Court did not dwell into the validity of the aforesaid Notification and the Government Order.

NGT Order Shutting Down Factories Operating without Environmental Clearance Set Aside by the Supreme Court

The Supreme Court set aside an order by the National Green Tribunal (NGT) that had directed closure of some 15 manufacturing units which were permitted to operate without prior Environmental Clearance (EC) by the Haryana state government. The SC held that the manufacturing units which are generating employment for about 8,000 people and contributing to the economy, and cannot be shut down because of technical irregularity of not obtaining an EC prior to commencing operations, if such manufacturing units comply with environmental norms. While it is well known that it is mandatory to obtain EC as per the law, but in the present case, the state government appears to have erred in its assessment of the manufacturing units and contending that they did not require EC.

MARCH

Masterminds behind ‘S**li Deals’ and ‘B**li Bai’ apps granted bail by Delhi Court

Chief Metropolitan Magistrate of Patiala House Court in Delhi granted bail to Aumkareshwar Thakur, the alleged creator of ‘S**li Deals’ app as well as Neeraj Bishnoi, the alleged creator of ‘B**li Bai’ app. This came after bail had been first refused to both the accused in January 2021. Charge sheets had been filed against the ‘prime accused’ Aumkareshwar Thakur and Neeraj Bishnoi in early March 2021. Both accused have been charged with allegedly running the "S**li Deals and B**li Bai mobile apps to auction Muslim women in the virtual space."