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Understanding the value of the past

The draft NEP presented the government with a fantastic opportunity to institutionalise the process of truth and reconciliation by revamping its approach to history, instead of the partisan propagandic role history has been employed for over seven decades.

J. Sai Deepak

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Legendary West Indian cricketer Michael Holding recently delivered a powerful message on the ongoing #BlackLivesMatter movement which has taken the United States of America by storm and has started a global conversation on racism, in particular with respect to the stereotypes associated with members of the African community in predominantly White countries. While there are several relevant threads from an Indian perspective to pull from Holding’s heartfelt and deeply emotional message, following are the excerpts which this author wishes to focus on for the purpose of this piece:

“I hear people talking about brainwashing. I didn’t quite understand as a young man what brainwashing meant. I now understand what brainwashing means. We have been brainwashed, and not just Black people, White people have been brainwashed in different ways. I go back many years, think about religion. You and I are supposed to be Christians. I am not really a very holy person, not a very religious person. That’s what we were taught. Look at Jesus Christ, the image that they give you of Jesus Christ- Pale skin, blonde hair, blue eyes, where Jesus came from, who in that part of the world looks that way? But again, that’s brainwashing to show you this is what perfection is, this is what the image of perfection is. If you look at the plays of those days, Judas who betrayed Jesus is a black man. Again, brainwashing people to think “oh he is a black man! He is the bad man!”. Go through history…

These lights that are shining on us, you can tell me who invented the light bulb, right? Thomas Edison, right? Everybody knows Thomas Edison invented the light bulb. Thomas Edison invented the light bulb with a paper filament. It burnt out in no time at all. Can you tell who invented the filament that makes these lights shine throughout? Nobody knows, because he was a black man! I was not taught in schools. Lewis Howard Latimer invented the carbon filament to allow lights to continuously shine. Who knows that?! Everything should be taught! When you go back to schooling as a young man, I remember my school days. I was never taught anything good about black people.

 And you cannot have a society that is brought up like that, both white and black, that only teaches what’s convenient to the teacher. History is written by the conqueror, not by those who are conquered. History is written by the people who do the harm, not by the people who get harmed. And we need to go back and teach both sides of history and until we do that and educate the entire human race, this thing will not stop. They keep on telling me, “There’s nothing called White Privilege”. Give me a break! I do see white people going into a store and I don’t see them being followed. A black man walks in, somebody is following him wherever he goes. That is basic white privilege!…. and things like that have to change!”

 A thousand supremely qualified academics, educators, psychologists and historians can write tomes of books and reams of literature to make the very same point in a circumlocutory and esoteric fashion, but Michael Holding has hit the nail on the head- there is a clear and direct psychological impact of history education in schools on a community’s self-identity at the individual and collective planes, and the way the world perceives and treats members of the community.

While it would be factually incorrect to draw exact parallels between the Indic experience at the hands of various colonizers and the oppression suffered by Africans in different parts of the world, perhaps the common thread is the experience of dehumanisation through slavery which was religiously justified and institutionalised by various forms of colonialism. In fact, indigenous communities of Bharat have suffered bloodier forms of oppression for a longer period of time with the result being that members of several communities suffer from transgenerational trauma, which the Indian State has been conveniently oblivious to thanks to its conscious policy of historical amnesia since the 1950s.

The continued insensitivity underlying the said approach has been sought to be justified on grounds of preserving social harmony, when the fact remains that the fragility of this pretence of harmony is exposed so often that harmony is the exception and is rarely intentional. This thoroughly exposes the Indian State’s inability to wrap its head around the importance of presenting true history before the society so that the right lessons are drawn by all stakeholders. In general, one of the central purposes of teaching history is to ensure that, while the current generation cannot be held responsible for the reprehensible behaviour of its ancestors, there is sufficient disincentive in the form of social sanction against repeating such behaviour. This is the very object of memorializing the trauma of the past.

The Indian State’s failure to grasp this basic role of history education is one of the single biggest reasons for the existing fissures in the Indian society, and if the 484-page Draft National Education Policy 2019 (“the Draft NEP”) is anything to go by, there is no sign of improvement on this front. The Draft NEP presented the Government with a fantastic opportunity to institutionalise the process of truth and reconciliation by revamping its approach to history, instead of the partisan propagandic role history has been employed for over seven decades. However, there is no sign in the document that the Government has either the intent or the stomach for such an exercise.

While the Draft NEP (a) indicates a review of certain accepted premises of the Indian education system and (b) tentatively attempts to proffer a path which remoulds the system in a manner which is consistent with Indic civilizational ethos and aspirations, it appears that this is more inadvertent and incomplete than intentional and comprehensive. As a consequence of this diffident approach, the Draft NEP lands a half punch. For a nation which aspires to be a “Vishwaguru”, the Draft NEP lacks the civilizational confidence needed to revamp the education system to be able to achieve that status in the foreseeable future.

Even if such a lofty purpose were not placed at the centre of this exercise, at the very least the NEP is expected to be sensitive to the long existing and emerging challenges which can be traced to the Indian education system, right from the history curriculum which actively aids the maleficent process of historical amnesia, to the science curriculum which reinforces the accepted false notion that science and reason are essentially Western constructs which have been imported to civilize the superstitious natives.

The sad irony is that while colonizers had no compunction benefitting from Indic knowledge systems despite perpetuating negative stereotypes about it through the education system to deprive the native of his/her sense of selfworth, Indian education policy makers have had no qualms whatsoever in perpetuating the same mindset to the detriment of the present and the future, and certainly at the expense of the past. In other words, independent India has continued with the very same education system which was designed to produce glorified Anglicised colonialised subjects, instead of producing rooted, civilizationally aware and confident thought leaders, entrepreneurs and nation builders. In short, any Indian achievement is despite the education system, and not because of it.

Another critical aspect of the Draft NEP which is inexplicably terse (a single Paragraph) in its comments and suggestions for improvement, is legal education. The Draft NEP appears to be comfortable with the fundamental Anglo-Saxon outlook of the Indian legal system and makes no attempt to introduce and mainstream Indic legal jurisprudence, logic and reasoning as part of legal curriculum and as part of law-making in the country. This reflects a deep-seated ignorance, apathy and perhaps even a self-loathing approach to the native legal systems which held this civilization together even when it was not a single political unit.

Policy makers appear to be indifferent to the impression that exists in the minds of young law students and practitioners that concepts of justice and rule of law are necessarily and solely attributable to Western thought. No wonder even the highest Court of the land looks to the West for inspiration, as opposed to drawing from the vast ocean of Indic jurisprudence which is much more in sync with the native pulse of this land.

The bottom line is that the #BlackLivesMatter movement has stirred discussions across the globe which have long been brushed under the carpet for various reasons. Bharat must benefit from the momentum provided by this movement to ignite those discussions within its society which have been considered politically incorrect and taboo for generations for the fear of “hurting sentiments”. For a civilization which constantly reiterates its belief in the power of truth, it is sad that its descendants do not seem to have the courage of their conviction to let the truth do the talking through history books. If the truth doesn’t stand a chance in Bharat, does Bharat at all have the right to aspire for the status of “Vishwaguru”?

 J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

SEBI v/s RIL : Review Petition Admitted

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies.

Tarun Nangia

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SEBI v/s RIL : Review Petition Admitted

The Supreme Court in the case Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors observed and has allowed for listing of the instant petition in open court.

The bench comprising of the Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari and the Justice HimaKohli observed while considering the facts and circumstances of the case and on the submissions made by the counsel in the review petition. The bench deemed it appropriate to allowe the application filled for the listing of the instant petition in open court.

Background of the Case:

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies. In 2020, a complaint was filled by S Gurmurthy, the regulatory initiated probe into the alleged irregularities. An opinion was sought by SEBI of former Supreme Court judge Justice BN Srikrishna twice and also the opinion of a Chartered Accountant named YH Malegam.

It was requested by the RBI for disclosure of these opinions and related internal documents. The RIL filed a writ petition before the Bombay High Court, when SEBI turned the request and the same was dismissed in February 2019.

A Criminal complaint was lodged by SEBI in 2020 before Special Judge, Mumbai against RIL alleging offences punishable under SEBI Act and Regulations. The same was rejected by the Court as time-barred. A revision petition was filled by the regulatory before the Bombay High Court challenging the dismissal of the complaint. However, in SEBI’s revision petition, RIL filed an interlocutory application seeking the disclosure of the documents. The High Court adjourned RIL’s application on March 28, 2022 by stating that it can be considered only along with the main revision petition. Therefore, this led to filling of the special leave petition before the Supreme Court.

On September 29, 2022., the matter was circulated in the Supreme Court. Accordingly, the court listed the review petition for next hearing on 12.10.2022.

Case Title: Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors
Case No: W.P.(C) No. 250 of 2022 & W.P.(C) of 1167 of 2022.
Coram: Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari, Justice Hima Kohli
Date Of Order: 29th Day of September, 2022.

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Supreme Court: All Women Are Entitled To Safe And Legal Abortion, Distinction Between Married And Unmarried Women Unconstitutional

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Supreme Court: All Women Are Entitled To Safe And Legal Abortion, Distinction Between Married And Unmarried Women Unconstitutional

On Thursday, the Supreme Court in the case X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi observed and has declared that unmarried women are also being entitled for seeking abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.
It was ruled by the Court that exclusion of unmarried women who conceive out of live-in relationship from the Medical Termination of Pregnancy Rules is unconstitutional.
The court stated while noting that the 2021 amendment to the Medical Termination of Pregnancy Act does not make a distinction between married and unmarried women, all women are entitled to safe and legal abortion.
In the present case, the issue relates to whether the exclusion of unmarried woman, whose pregnancy arises out of consensual relationship, from Rule 3B of the Medical Termination of Pregnancy Rules is valid. It was mentioned in Rule 3B the categories of woman whose pregnancy in the duration of 20-24 weeks can be terminated.
However, the distinction between married and unmarried women is unsustainable.
The bench comprising of Justice Chandrachud read out the excerpts of the judgment that if Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities. Thus, this is not constitutionally sustainable. It cannot sustain the artificial distinction between married and unmarried women. However, the women must have autonomy to have free exercise of these rights.
The Court added that the rights of reproductive autonomy give an unmarried women similar rights as a married women and the object of section 3(2)(b) of the MTP Act is in allowing woman to undergo abortion after 20 to 24 weeks. Including only married and excluding unmarried woman will be violative of Article 14 of the Constitution of India.
The Reproductive right part of individual autonomy
However, the foetus relies on the woman’s body to sustain and the decision to terminate is firmly rooted in their right of bodily autonomy. It will amount to an affront to her dignity, if the State forces a woman to carry an unwanted pregnancy to the full term.
The bench comprising of Justice D.Y. Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala in the case on August 23 had reserved judgment.
It stated that the law must be interpreted keeping in mind changing social mores
It was largely concerning the married woman, when the MTP Act was enacted in 1971 but as societal norms and mores change the law must also adopt. While changing the social mores must be borne in mind while interpreting provisions. It is indicated in social realities that the need to recognise legally non-traditional family structures.
The Judgment delivered on International Safe Abortion day.
A lawyer informed the bench that today happens to be the international safe abortion day, after the judgement was pronounced.
It was remarked by Justice Chandrachud, “We had no idea that this would coincide with safe abortion day. Thank you for informing us”.
Which are the categories of women to be included in Rule 3B?
(a) the survivors of sexual assault or incest or rape;
(b) the minors;
(c) the change of marital status during the ongoing pregnancy (divorce and widowhood);
(d) The women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) The mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such mental or physical abnormalities to be seriously handicapped; and
(g) The women with pregnancy in humanitarian settings or emergency or disaster situations as may be declared by the Government.
Accordingly, these categories were added in the MTP Rules by the Central Government following the 2021 amendment to the MTP Act, which raised the ceiling limit for termination of pregnancy.

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Bombay High Court: Limitation Period Starts After Affixing Signatures On GST Registration Cancellation Order

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Bombay High Court

The Bombay High Court in the case Ramani Suchit Malushte Versus Union of India and Ors observed and has held that the limitation period would start only after the affixing of signatures on the GST registration order of cancellation.
The Division bench comprising of Justice K.R. Shriram and the Justice A.S. Doctor observed and has stated that only on the date on which the signature of Respondent issuing authority was put on the order dated November 14, 2019, for the purpose of attestation and would time to file an appeal commence.
It was observed by the court that unless a digital signature is put by the issuing authority, the order will have no effect in the eyes of the law.
In the present case the petitioner/assessee assailed an order passed on August 2, 2021, but issued on August 4, 2021, by which the petitioner’s appeal was dismissed on the ground that it was not filed within the period of three months as it is provided under Section 107(1) of the CGST Act.
It was contended by the petitioner that the order in the original dated 14.12.2019, which was in the appeal filed before the respondent, had not been digitally signed. However, the said order was not issued in accordance with Rule 26 of the CGST Rules. Thus, the time limit for filing the appeal would begin only upon digitally signed orders being made available.
Further, it was specifically stated in the affidavit in reply that the show cause notice was digitally signed by the issuing authority, but when it refers to the order in the original dated 14.12.2019, there was total silence about any digital signature being put in by the issuing authority.
It was contended by the department that the petitioner could not take the stand of not receiving the signed copy because the unsigned order was admittedly received by the petitioner electronically.
However, the Court observed that if the stand of the department has to be accepted, then the rules which prescribe specifically that a digital signature has to be put in place will be rendered redundant.
Accordingly, the court while overturning the order, returned the appeal to the respondent’s file and instructing him to consider the appeal on its merits and issue whatever order he deemed appropriate in accordance with the law.

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Supreme Court: Speaker Can’t Deny Pension & Other Benefits To MLAs While Disqualifying Them Under 10th Schedule

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Supreme Court: Speaker Can’t Deny Pension & Other Benefits To MLAs While Disqualifying Them Under 10th Schedule

The Supreme Court in the case Gyanendra Kumar Singh and Ors. Versus Bihar Legislative Assembly Patna and Ors observed and has held that under the Xth Schedule of the Constitution, the Speaker of a Legislative Assembly does not have power to deny pension and other benefits available to a former MLA while deciding a disqualification petition against him.
The bench comprising of Chief Justice of India UU Lalit, Justice Ravindra Bhat and Justice JB Pardiwala observed while considering a set of appeals by then four JD(U) MLAs – Neeraj Kumar Singh, Gyanendra Kumar Singh, Rabindra Raiand Rahul Kumar, who were not only disqualified but was also denied for pensionary benefits on November 11, 2014 by the 15th Bihar Legislative Assembly Speaker.
The bench observed that in our our considered view, the Speaker was not within his jurisdiction to issue such directions (other than the direction of disqualification). Therefore, the court set aside the directions issued by the Speaker in Paragraph 28 of the order. The court have not gone into the question of disqualification and all questions are left open.
It was observed that since the 15th Legislative Assembly is no longer functioning, and the 17th Legislative Assembly is currently going on, the Court observed that it need not go into the basic issue that whether the order of disqualification issued by the speaker of the Assembly was correct or not.
According to the bench, before the court, the only question was to consider the effect of the directions issued by the Speaker in his disqualification order (apart from the disqualification) i.e., denying pension and other benefits.
During the hearing, the counsel, Senior Advocate Devdutt Kamat appearing for the appellants submitted that the directions issued by the Speaker on November 1, 2014 went beyond the scope of his powers.
The Counsel, relied on the Supreme Court decision in the case Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka Legislative Assembly, the operative part of which reads that in exercise of his powers under the X schedule, the Speaker does not have the power either to indicate the period for which the person would stand disqualified or to bar any person from contesting in election.
Adding to it, the court asked the opposing counsel that, where does the Speaker get the power that pension can be withheld?
It replied, “They have been disqualified and that the same consequences flow in”.
The Court orally observed that we need not go into the issue of disqualification on the ground that whatever is there, whatever happened in Rome, happened there and once you come out and it’s not there…It’s not a permanent disqualification or a debarment or something. All it has been said by him is that the pension need not be stopped.
The Counsel, Kamant added, “Pension and other emoluments”.
It was stated by the speaker that the above 4 Hon. Members will not get any facility and that is not sanctioned.

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Chhattisgarh High Court Clarifies: Writ Petition Can Be Dismissed Even After Admission; Alternate Remedy

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Chhattisgarh High Court Clarifies: Writ Petition Can Be Dismissed Even After Admission; Alternate Remedy

The Chhattisgarh High Court in the case Mangali Mahinag v Sushila Sahu observed and has made it clear that there is no such rule that a writ petition, once admitted and it cannot be dismissed on the ground of availability of an alternative remedy.
The bench comprising of Justice Arup Kumar Goswami and Justice Deepak Kumar Tiwari observed that as proposition of law it cannot be countenanced that once a writ petition is entertained and admitted and the same cannot be dismissed on the ground of availability of the alternative remedy at the time of hearing.
Against the order of a single judge, the instant writ appeal was preferred wherein dismissing the writ petition filed by the Appellant on ground that there was an alternative remedy available.
It was observed that both the Appellant and Respondent had applied for the post of ‘Angwanwadi Karyakarta’. However, the petitioner was declared successful in the selection process, the Collector had set aside his appointment on an appeal made by the Respondent. Aggrieved with the same, the Petitioner had approached the writ court.
After admitting the petition, the Writ court relegated the Petitioner to avail alternative remedy. Thus, this appeal.
The petitioner relied on the case Durga Enterprises (P) Ltd. & Anr v. Principal Secretary, Govt. of UP & Ors., wherein the Supreme Court had held that the High Court having entertained the writ petition, in which pleadings were also complete, ought to have decided the matter on the merits instead of relegating the parties to a civil suit.
On the other side, it was argued by the State that there is no proposition in law that once a writ petition is admitted, the petitioner cannot be asked to avail alternative remedy. Further, it was submitted by the respondent that the facts and circumstances of each individual case will determine whether the Court would decide the writ petition or the petitioner would be asked to avail alternative remedy.
It was concurred by the High Court with the State’s submissions. The Court observed that the findings in Durga Enterprises (supra) were based on the fact that the writ petition was pending for a long period of 13 years.
Similarly, the court observed in the case State of UP v. UP Rajya Khanij Vikas Nigam Sangharsh Samiti that the issuance of rule nisi or passing of interim orders is a relevant consideration for not relegating the petitioner for availing an alternative remedy if it appears to the High Court that the matter could be decided by a writ Court.
In both the case, it was observed by the High Court that the Supreme Court did not lay down as a proposition that invariably whenever a writ petition is admitted, the matter has to be heard on merit and the writ Court cannot exercise discretion to relegate the petitioner to avail an alternative remedy.
Accordingly, the Court dismissed the writ appeal.

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SC to begin hearing 300 oldest cases from Oct

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NO RIFT, ALL JUDGES ARE ON THE SAME PAGE: CJI U.U. LALIT

In an effort to resolve pendency of cases in the Supreme Court, Chief Justice of India Uday Umesh Lalit issued orders on Wednesday asking that 300 of the oldest cases from October be listed for hearing.

The oldest such pending case dates back to 1979, and over 20 cases are from the period of 1990 to 2000.

The notification released by the Registry of the Supreme Court on Wednesday said, “Take notice that 300 oldest after notice matters of which list is appended below are likely to be listed before the courts on non miscellaneous days beginning Tuesday, October 11, 2022.”

The cases that will be listed also include a PIL that was filed in 1985 by lawyer and environmental activist MC Mehta and kept languishing in the Supreme Court’s records for almost 37 years. Most of the cases have either lost their significance as a result of the passage of time or because the immediate issue they attempted to address in their petitions was resolved long ago. However, these petitions persisted in the SC docket, increasing the Supreme Court’s statistics on cases still pending.

As of September 1, the Supreme Court has 70,310 cases outstanding, according to information posted on the court’s website.

The Chief Justice of India’s most recent ruling is a continuation of his efforts to clear out old cases and Constitution bench cases from the court system. Every Tuesday, Wednesday, and Thursday since becoming CJI on August 27, Justice Lalit has scheduled normal issues, which are older cases that have been lingering for more than ten years, in the morning session while the second half of the day is reserved for hearing of new matters.

To handle the majority of the 493 Constitution Bench cases (including connected cases) in the top court, CJI Lalit also formed five separate Constitution Benches, each with five judges. Of these, 343 are five-judge bench matters, 15 are seven-judge bench matters, and 135 are nine-judge bench matters.

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