Sunday, April 19, 2015

Good Friday and the Chief Justice of India

Seeing Stars in the Daylight

The PM, the CJI and the Threat to Justice and the Freedoms of the people

JOHN DAYAL

As every child knows, Five Star is the name of a chocolate-coated Caramel bar. It is very bad for oral health, dentists say. Five Star hotels are better, as they need to have a swimming pool and an alcohol bar to qualify.

Five Star activists were unheard of till Good Friday this year, though occasionally a few had been lampooned as Page Three ones, perhaps referring to their sartorial elegance.

Like many other acronyms – those smart sounding words that expand into some terrible explanatory sentences – and phrases such as ‘Make [not Made] in India’, it got instant approbation from fans of the man who had coined it, Mr. Narendra Modi, the Prime minister of India., going viral on Indian cyber space.

It should worry Indian citizens. It hides mindsets that are dangerous for democracy, impacting on just about every facet of it ranging from justice, civil liberties, to environment and constitutional relationships between the  executive and the judiciary. Within days, it has started becoming visible, not perhaps unexpectedly given the similarity some have seen between utterances of the head of the judiciary and the head of the government. The sequence of events is frightening.

Mr. Modi made his remarks while addressing the chief justice and judges of the Supreme Court, the chief justices of state high courts and all the chief ministers in the country. That he called the meeting on Good Friday was reminiscent of the Good Governance Day he had ordered on Christmas 2014 to honour former prime minister Atal Behari Vajpayee who had also just been awarded the Bharat Ratna, the country’s highest civil honour. The chief justice’s acquiescing in the timing of the conference – and his defence of it – raised s stink when one of the supreme court judges, Mr. Kurien Joseph, object, saying the day was holy to the Christians as much as no official work was done on some other days that were holy to people of other faiths.

The government’s Press Information Bureau has not yet given an authenticated English translation, and therefore one has to go by reports in the print media, which quote the Prime Minister as saying,  "The judiciary is not as fearless today as it used to be ten years back. Are five-star activists not driving the judiciary? Are they not attempting to do so? Judges fear what the reaction of five-star activists would be when they render justice as per law and as per Constitution. It is not difficult to dispense justice as per Constitution and law. But while doing so, judges must differentiate between perception (created by social activists) and fact."

Chief Justice of India H L Dattu apparently rebutted the PM's perception and later told the Times of India, "Judges today are as fearless as they ever were." But Mr. Dattu’s words have lost some of their force because his comments in other situations. But some link Mr. Modi’s remarks to two judges - Justices S J Mukhopadhaya and N V Ramana – being removed by the chief justice from hearing activist Mumbai-based activist Teesta Setalvad and her husband Javed Anand's petition seeking a directive to Gujarat Police not to arrest her for alleged embezzlement of funds meant for riot victims. Setalvad's counsel had sought replacement of the judges by pointing out that they had invited the PM for the weddings of their children.

As the paper pointed out, Modi himself was in the eye of a Supreme Court case for three years. With the help of Setalvad, Mrs. Jakia Jafri, widow of former Congress MP Ehsan Jafri who was killed by a rioting mob in 2002, had filed a petition accusing Modi, then chief minister of Gujarat, of deliberately failing in his constitutional duty to protect innocent minorities during the 2002 riots.

It is a different matter that the Supreme Court -appointed special investigating team had gave Mr. Modi a clean chit. The Bharatiya Janata Party president, Mr. Amit Shah, got his own clean chit from the Central Bureau of Investigation in due course.

The words Mr. Modi uses matter, and matter a lot because they get translated into actions that impact on common people, often with great violence.

Mr. Modi’s most authentic biographer, the journalist Nilanjan Mukhopadhyaya says in his analysis of the challenges facing the judiciary: “[Modi] is a man who is guided by vested interest and not of a man who must uphold the world’s longest-written Constitution. Mr. Modi has popularised the phrase “five-star activist” the way he introduced the label of the “news trader” or “bazaru survey” to the political lexicon of the country. Peering through Bvlgari spectacles and keeping track of time on his Movado watch while clothed in crisp, signature linen Modi Kurta, the Prime Minister cast aspersions on the judiciary while forgetting that he, in fact, personifies five-star culture. He used the contentious phrase thrice, implying on each occasion that the judiciary had become pliable and could be moulded by groups with suspect funding. He contended that such groups were masquerading as public litigants and were determining the nature of verdicts, thereby implying that the judges no longer had a mind of their own!”

According to Mr. Mukhopadhaya, “In each “project” that Mr Modi has on hand there is a different enemy. In 2002, when he had to win the polls, enemies of Gujarat were giving the state and the people a bad name and Mr Modi became the crusader for ‘Gujarati asmita’. ‘Mian Musharraf’ became a moniker for more than 40 lakh people in the state who practiced Islam. In 2007, there was a Sohrabuddin lurking everywhere. In the run-up to the parliamentary polls, “news-traders” were the hurdles in the path of Mr. Modi taking India back to the golden ages. The hatred towards journalists was allowed to develop to such an extent that trolls became common and even led to physical violence against journalists. Mr. Modi has a problem with public interest litigation. But he is not the first politician to argue that judicial activism is hampering growth and acting as an obstacle to government. Most recently, Mr. Modi’s trusted aide and chief resource manager during the Lok Sabha campaign, Mr. Piyush Goyal, said judicial overreach was responsible for stunting growth. He contended that growth cannot be allowed to stagnate because of obsession with environmental protectionism. Specifically, he claimed judicial overreach or sensationalisation can cause more damage than growth.”

The government on 9th April 2015 suspended the registration of Greenpeace under the Foreign Contribution Regulation Act. In its order, the government claimed that Greenpeace had “prejudicially affected the economic interest of the state”. The order has also frozen seven of Greenpeace’s bank accounts. The Home Ministry’s charges against Greenpeace are based on financial technicalities relating to incorrect reporting of the foreign contributions it has received

Not that Greenpeace, NGOs and the Church were not warned early.           

Within days of taking over , In May 2014,             the  Modi government started action against NGOs, leaking an Intelligence Bureau report which claimed a host of NGOs, including Greenpeace India, were working against the interests of the nation at the behest of foreign powers and that their activities had cost the country 2-3% of GDP. In response to that, the government has cancelled more than 2,300 NGO registrations  in its nine months in power, citing violations of the FCRA.

Greenpeace India activist Priya Pillai was barred from flying out of India on Sunday despite a valid visa, a move described by the campaign group as "bullying" but justified by government sources. Priya, a senior Greenpeace campaigner, was on her way to London when immigration officials stopped her and stamped "offload" on her passport. This  incident came four months after another British Greenpeace staff member was stopped from entering India and put back on a London-bound flight.

On 5th March, 2015, the government banned 69 NGOs from receiving foreign funds under Foreign Contributions Regulation Act (FCRA), out of those 30 NGOs run by Christian and Muslim groups. They were said to be working against the interest of the nation, based on intelligence reports. Andhra Pradesh topped the list of banned NGOs with 14 in the state. Of the 69 blacklisted from receiving foreign funds, 14 are from Andhra Pradesh, 12 from Tamil Nadu and five each from Odisha and Gujarat. The others are based in Delhi, Uttar Pradesh, Kerala and Jammu and Kashmir. Manya are are run by  Christian institutions, one is an Islamic education association. Minister of state for home Kiren Rijiju said in reply to a question in Lok Sabha. He said intelligence agencies reported adversely against NGOs such as Tuticorin Diocesan Association; East Coast Research and Development Trust, Thoothukudi; Centre for Promotion and Social Concerns, Madurai and Greenpeace Chennai.

On 7 April this year, Bertha Foundation of the Netherlands is the latest advocacy group to be included on the list of foreign donors that require clearance from the Union Home Ministry for funding non-governmental organisations. It was targeted for funding Greenpeace, among others. The others in the prior-approval list are the U.S.-based 350.Org, Mercy Corps (which operated in Kashmir), Bank Information Centre, Sierra Club Foundation and Avaaz.org; the Netherlands-based ICCO Stretegische Samenwerking, HIVOS, Catholic Organisation for Relief and Development Aid and Inter-Church Peace Council; and the Denmark-based Danish Institute of Human Rights and Danish International Development Agency. While 350.Org, Climate Works Foundation, Greenpeace International, Bank Information Centre, Sierra Club Foundation and Avaaz.org take up environment issues, some of the Netherlands-based advocacy groups purportedly operate in the Northeast States, according to media reports.

The Ministry’s website says NGOs receive Rs. 11,000 crore in foreign donations a year from over 150 countries. The government does not keep any records of  foreign money received by the Rashtriya Swayamsewak Sangh or its associate groups, largely from Hindu groups in he US, the UK and Europe according to those who monitor the Sangh Parivar.

Sometimes, at least, the Chief justice Dattu seems to agree with the government and the IB’s perception. In July last year, hearing a Public interest litigation, he famously said churches damaged during the anti Christian pogrom in Kandhamal, Orissa in 2008 were not entitled to any compensation as they got sufficient funds from western countries. “You know Mr. [Colin] Gonzalves, most of the churches get funds from foreign governments. So it is not proper for you to ask for chairs in the church or church bells,” Justice H.L. Dattu, heading a three-judge bench, told Colin Gonzalves, who appeared for the riot victims.. The senior counsel argued that as the churches were damaged by rioters, the state, Odisha, should compensate.

There is, of course, absolute vindictiveness of the government against Greenpeace, Collectively, this implies starving  activist NGOs from carrying out their work which the government sees as impacting its effort to create an India where no environmental activists, trade unions or human rights groups would be  able to question foreign and national capital and industries or the policies of the government.

Minority groups, seen by the Sangh Parivar as foreign agents – the West in the case of the Christians, and Mid East countries in the matter of Muslims, are also seriously impacted, and perhaps will suffer the most in the long run. Minority groups carry on much of their educational, health and empowerment work with some of their funds coming from their international fraternal organizations and from other funding and aid agencies for humanitarian and development work. This will be of course seriously impacted if curbs are placed  using the FCRA. This has been a persistent threat, and in fact the FCRA has become an instrument to blackmail if not coerce and threaten NGOs carrying out such work to keep them in “line”. Activists have found their work severely impacted both by restraints on friendly groups that support  human rights work, including training seminars, advocacy, and by documentation and by the aggressive and often threatening  environment created by religious-nationalist groups.

Philanthropy is apparently not an Indian trait, though charity is. There will funding for religious work and for temples for sure. Wakf will take care of mosques and madarsas and there will be some donors for churches and church functions. . But there will be little or no corporate CSR  or other groups  donating generously for human rights and  empowerment activity. That will be a severe blow to human rights work in the country, and therefore, will impact on the quality of democracy in India. It will also deeply hurt India’s image.
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