Increasing tendency to punish petitioners raises 'expert eyebrows' across India

Himanshu Kumar, Teesta Setalvad

By Bharat Dogra* 
In June 2021 the Delhi High Court passed a judgment on a petition filed by leading film actor Juhi Chawla. She had filed a petition against hasty roll-out of 5G Technology. While anyone may agree or disagree with this, the fact remains that hundreds of scientists worldwide have been warning on the same issue that Juhi Chawla had taken to court, citing evidence of serious health hazards.
The judgment dismissed this petition but also said that this petition was an effort to gain publicity and imposed a fine of Rs 20 lakh on Juhi Chawla. The court order said, the suit is dismissed. Plaintiffs abused the process of law. Cost of Rs 20 lakh is imposed on plaintiffs.
This tendency to punish the petitioner has been increasing and is a cause of great concern for all those concerned with justice and human rights in India. Let us look at two more recent cases which have increased these worries.
In June 2022 in a judgment on the Zakia Jafri petition in which Teesta Setalvad was a co-petitioner(Zakia’s husband, a former Member of Parliament, had been killed in the 2002 Gujarat riots and Teesta Setalvad is a well-known human rights activist who has been helping victims of communal violence for several years), the Supreme Court accused the complainants of making false claims and an attempt to create sensation, then added, “As a matter of fact, all those involved in such abuse of process need to be in the dock and proceeded against in accordance with law.”
This was promptly followed by the actual arrest of Setalvad and senior former police officer RB Sreekumar who had played an important role in exposing facts about the Gujarat riots.
Former Supreme Court judge Madan Lokur commented on this judgment in an interview, “I think it is very, very unfortunate.” He added that the Supreme Court should issue a clarification that the intention of the judgment was not to lead to the arrest which followed. This clarification did not come.
When asked about the possibility of arrest being intended, he said, in that case “heaven help us.” He found it very troubling that if a litigant goes to court and does not succeed, then the litigant is in trouble. He also said that the judgment has also made it difficult for Teesta to get bail. He said, “In view of the observations of the Supreme Court, it is going to be very, very difficult for a judge to grant her bail.”
Senior columnist Swaminathan S Anklesaria Aiyar wrote,“The verdict has been castigated by hundreds of eminent persons for turning the tables on petitioners for justice and treating them as the accused, not accusers.” The columnist also reminded readers that in the past functioning as well as retired Supreme Court judges had also criticized the role of the state government at the time of the 2002 Gujarat riots in very strong terms.
In the third such instance, in July 2022, the Supreme Court ordered activist Himanshu Kumar to pay a fine of Rs 5 lakh while dismissing his public interest litigation related to the killing of 16 tribals in Dantewada, Chattisgarh. The incident goes back to 2009.

Justice Madan Lokur

Going by the somewhat distant memories of those times, one can say that several troubling human rights violations were being reported from this state during those times and against this background, the stand taken by Himanshu had attracted support and sympathy. In the debates of those days, he was seen as a Gandhian activist who was working, along with his wife, in very difficult conditions with a lot of courage. In fact the office of his own voluntary organization had faced demolition.

He may have been mistaken or he may have been correct about the allegations he made, but it is highly unlikely that he knowingly said anything that was false. From a common sense point of view, it appears highly unlikely that a social activist working in the most difficult conditions would antagonize the most powerful on the basis of lies and fabrications. From all accounts available, he comes across as sincere, courageous and willing to undergo great hardships for what he believes to correct.
In his comment after the judgment Himanshu has stated that the court has asked for a big fine to be paid by him and for further proceedings against him. He has stated that he does not have the money to pay even a fraction of the fine imposed on him and in any case to pay the fine is to admit that he had done something wrong in seeking justice which was not the case.
As a leading editorial (July 16, “SC penalizing the petitioner is unjust”) commenting on the judgment and the trend of this case as well as the Setalvad case to punish the petitioners, states, “The Court’s heavy fine sends a chilling signal to all those who would knock on its door in future armed with nothing more than a plea against the state.” Further the editorial asserts, “The imposition of penalty on the petitioner in the Dantewada case is part of an emerging judicial pattern.”
The implications of this are very disturbing for the cause of justice and the pursuit of public interest as anyone seeking to knock on the doors of justice would have to worry also about facing fines or even imprisonment. Hence this trend of punishing the petitioner should be checked in the interests of justice.
As the editorial says, “The Supreme Court must reflect on this worrisome inversion and call a halt to it before it does more damage to its hard won reputation as the upholder of the constitutional checks and balances.”
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*Honorary convener, Campaign to Save Earth Now; recent books include ‘A Day in 2071’, ‘Planet in Peril’ and ‘Man over Machine’