- Its Kafkaesque rulings belie the protection of civil rights and liberties enshrined in the country’s constitution.
Human rights defenders targeted by India’s criminal justice system have accused the Supreme Court of being complicit in the persecution of the civil rights community by Prime Minister Narendra Modi’s government. In fact, the court now protects law enforcement from being investigated and held accountable for its crimes, they have said.
The reality, several activists say, corresponds with former law minister and veteran Supreme Court lawyer Kapil Sibal’s recent comment that there was “no hope left” from the country’s highest court for the protection of civil rights and liberties.
Speaking at a people’s tribunal in New Delhi on August 3, Sibal had cautioned that those who expected “relief” from the Supreme Court were “hugely mistaken.” He said the court was no more independent because its judges were appointed “through a process of compromise” and there was “no system” to determine who heard which cases, making it possible for pro-government judges to biasedly rule against activists.
“The judicial system has turned anti-poor, anti-Dalit, anti-Muslim, anti-women, anti-indigenous people,” said activist Himanshu Kumar, who has faced arrest since the Supreme Court last month dismissed his petition seeking an investigation into the killing of 17 adivasis (indigenous people) by security forces in Chhattisgarh state in 2009.
The Supreme Court’s Kafkaesque ruling against Kumar has been widely criticized as it is based on submissions from the police, the agency accused of committing the crimes. Instead of questioning the police, the Court ruled without evidence that Kumar had lied.
“I don’t go to the court with any expectation of justice,” said Soni Sori, who has been long attacked for her activism, with the police once inserting stones in her vagina. Speaking from her home in Chhattisgarh’s Dantewada, where police have a history of extreme against civilians, she added: “I fight the legal battle only because if I don’t then what will I say to the people tortured by the police come to me for help every day?”
Sori’s narration of horrific police atrocities in Chhattisgarh is not for the faint of the heart. “I meet pregnant women brutally gang-raped by the police. I meet children whose fathers were killed. I console women as their daughters lie unconscious after rape,” she said. “I have seen policemen throw money at girls after raping and leaving them naked and bloodied.” In many cases, not only did the courts fail to deliver justice but charged such victims, without evidence or inquiry, with armed insurgency and sent them to jail.
The “biggest problem” the victims faced was that the Supreme Court would “not even list [for hearing] or accept” their petitions, said activist Nadim Khan of United Against Hate, a collective. Khan was slapped with bogus criminal charges after he organized nationwide protests in 2019 against the Citizenship (Amendment) Act (CAA), a law globally criticized for aiming to turn India’s 200 million Muslims into noncitizens.
“The Supreme Court puts matters on hold for so long that the victims lose hope,” said Khan, who crisscrosses India to bring legal help to the victims of police excesses. “Not answerable to anyone, the Supreme Court only maintains a facade of credibility.”
According to Kavita Srivastava, national secretary of India’s oldest rights watchdog, the People’s Union for Civil Liberties (PUCL), the “new jurisprudence of making the petitioner the accused is alarming. The outlook of the establishment is that no one should raise any questions and that civil society is silenced. Until now, we fought the executive. Now, the judiciary no longer exists. This is a dangerous time in India.”
These activists fully endorsed veteran Supreme Court lawyer and human rights defender Prashant Bhushan’s comments at a Congressional Briefing organized by U.S.-based rights groups on August 10. In a no-holds-barred speech, Bhushan had said the Supreme Court had “virtually abdicat[ed] its role as the guardian of civil liberties and human rights of the people” and was “even assaulting the civil liberties of the citizens.”
A classic example of the ongoing judicial debasement is that of former police officer Sanjiv Bhatt, who is serving life imprisonment for the decades-old custodial killing of a man Bhatt never met, who did not even die in custody. Incredibly, the judge barred Bhatt’s attorneys from cross-examining witnesses and offering his defense.
“In the four years that Sanjiv has been in jail the courts have denied every one of our petitions, including requests for statements of witnesses, documents, and expert and doctors’ testimonies,” said Bhatt’s wife, Shweta Bhatt. “Our lawyers are ridiculed, jeered and mistreated in court. Hefty fines are levied on us on the flimsiest grounds.”
Nadim Khan of United Against Hate said cases concerning Muslims get buried in the Supreme Court’s red tape. They include challenges to the Karnataka state’s ban on Muslim students and teachers from wearing the hijab; the revocation of the Constitution’s Article 370 that gave autonomy to Jammu and Kashmir; and the CAA, against which nearly 150 petitions were filed after Parliament enacted it in 2019.
Meanwhile, the Supreme Court has refused bail to Muslim journalist Siddique Kappan who was jailed two years ago in Uttar Pradesh without committing a crime. The Court has refused to stop Uttar Pradesh, Madhya Pradesh and Assam state governments – all ruled by Modi’s Hindu nationalist Bharatiya Janata Party (BJP) – from illegally demolishing homes and businesses of Muslims. The Court has also failed to act against Hindu hatemongers who have openly and repeatedly called for a genocide of Muslims.
“Lower courts pass unconstitutional orders knowing that higher courts will not overrule them,” Khan said, citing a judge’s order in Varanasi for a “survey” of the 17th-century Gyanvapi mosque to find Hindu motifs. The Supreme Court failed to overrule the ruling though it violates a 30-year-old law that stipulates the status quo for places of worship.
“The legal process discriminates against those who challenge the state. Bail hearings for activists, journalists, academics are delayed,” Khan said. While the Supreme Court has failed to bail Muslim activists Sharjeel Imam, Umar Khalid, and Khalid Saifi, it has provided protection to a BJP leader, hate-monger Nupur Sharma, barring her arrest.
Speaking at the Congressional Briefing on Aug. 10, Mumbai-based lawyer Mihir Desai said it was worrisome that “any action of the state or any legislation of the state which gives extraordinary emergent powers to the state is being justified by the courts.”
Desai represents Teesta Setalvad, one of India’s best-known human rights activists who was arrested hours after the Supreme Court criticized her in June for seeking an investigation into Modi’s role in the killing of nearly 2,000 Muslims in Gujarat in 2002. Setlavad’s arrest has been decried globally, including by UN Special Rapporteur on Human Rights Defenders Mary Lawlor who has demanded her immediate release.
The family of 15-year-old Hafiz Junaid who was lynched five years ago has given up. “The four men accused of killing my son were freed on bail. The Supreme Court is yet to hear our case,” his mother Saira Bano said from her home in Haryana’s Faridabad. My husband is sick and can barely walk. We struggle for food. We cannot afford lawyers.”
Bano’s other sons do not anymore wear skull caps that might identify them as Muslims.
Sarita Pandey is an artist, a digital media professional, and volunteers for human rights advocacy groups. She lives in the D.C. area. She posts her art on instagram.com/saritatheobscure and tweets about issues she cares about at twitter.com/saritapandey.