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“The Supreme Court has been virtually abdicating its role as the guardian of civil liberties and human rights of the people in India,” Bhushan said at a briefing organized by US-based civil and political rights groups. “[The Supreme Court has] indeed gone further in some cases to even assault the civil liberties of the citizens.”
The Constitution gave the Supreme Court the “very important responsibility of protecting fundamental rights [and] human rights of the citizens” and ensuring “that the executive and the legislature function within the norms or within the bounds of their power.” But the court had failed to deliver on that mandate to protect civil and political liberties, he said.
In the eight years since Modi came to power in 2014, India had seen a “rampant trampling” of the people’s rights with a “full-blooded assault on minorities", he asserted. "There are lynch mobs out on the streets. There are lynch mobs on social media. Laws are being made to somehow reduce [Muslims] to second-class citizens. Muslims are being extrajudicially killed in “fake encounters"; their homes “bulldozed” merely for protesting."
“Civil rights of dissenters” are being crushed, he noted, adding, “Anybody who stands up and speaks out against this government, especially journalists or activists is targeted." In fact, a “very large number of our activists and journalists are in jail,” many of them "falsely accused of carrying out the anti-Muslim violence in Delhi in 2020".
Bhushan said, activists are being charged under draconian laws such as the Unlawful Activities (Prevention) Act (UAPA) and “kept in prison for years altogether [and] denied bail. In such a situation, the role of the Supreme Court and the High Courts… becomes even greater because it is really their responsibility and their power and duty to protect the rights of people whose rights have been trampled."
However, he regretted, habeas corpus cases, petitions against the anti-Muslim Citizenship (Amendment) Act (CAA), and cases challenging imprisonment on bogus charges of sedition under UAPA, the Penal code, or “even the National Security Act, which allows preventive detention those cases, are not being heard.”
Bhushan said the Bhima-Koregaon case, so called because it arose from upper-caste Hindu violence against lower-caste Hindus in a village of that name in Maharashtra state, was “clearly a false case. Several forensic experts have shown that the material based on which [the accused] are charged has been planted in their computer. But now it's been almost four years and these people are still in jail” and the Court has failed to give them bail. Over a dozen human rights defenders are incarcerated in this case.
“There are many people in Kashmir who have been in jail,” and many petitions have challenged the revocation of Constitutional Article 370 that had given special status to Jammu & Kashmir state. But the Supreme Court has refused to hear those petitions.
“In many cases, bail has been denied by the High Court or even sometimes by the Supreme Court,” Bhushan said. The Supreme Court “has been abdicating its responsibility [by] denying bail in obvious cases where the charge is bogus.”
Bhushan said the Supreme Court is “absolutely faulty” in its “interpretation of the draconian provisions of bail” under the UAPA. The “normal principle” is that “bail is the rule, jail is the exception.” Bail can only be denied if there were reasonable grounds to believe the accused would “flee,” “tamper” with the evidence or commit a crime.
He criticised the Supreme Court for last month upholding the Prevention of Money Laundering Act (PMLA) “reversed” the “burden of proof.” Now anyone accused under PMLA would need to” prove innocence'' to get bail. “It is virtually impossible before trial for anybody to prove his innocence before even the trial begins.”
Critical of the recent ruling that ignored evidence against Modi’s complicity in a "pogrom against Muslims" in Gujarat state in 2002, he said, the Apex Court virtually ordered the arrest of human rights defender Teesta Setalvad who had long exposed Modi’s role in that violence 20 years ago. This ruling showed that the Court had taken the abdication of its responsibility to a “different level,” he insisted.
He also criticized the Supreme Court’s ruling last month that rejected testimonies from indigenous people in Chhattisgarh state that the police had carried out mass killings.
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