Justice Shah criticizes Supreme Court for wrong reasons rather should get filed proper writ petitions. By Hem Raj Jain


This refers to the criticism of Supreme Court of India (SCI) by Retired Justice A. P. Shah which is published in an article https://thewire.in/law/lockdown-democracy-rights-india-supreme-court . The immediate cause of his criticism is lockdown (due to Coronavirus pandemic) but Shah has dealt with other issues also including Islamophobia, Human rights (including habeas corpus) for Kashmiris especially after August 5, 2019,  Citizen Amendment Act / National Register for Citizens, welfare of weaker section of society etc.

No doubt Shah’s motives for criticizing SCI is for the laudable purpose of not only protecting the human rights of the harassed and beleaguered section of India (who are in majority) but also to improve the image and efficacy of SCI especially in the interest of protecting the majesty of constitution / law (which is State). But Shah has not taken these issues in proper perspective. If Shah is really interested in getting justice in all the matters he has dealt in said article then he should get filed proper writ petitions, in view of  given below:-

First and foremost Shah should appreciate that all the problems he has mentioned are related to mainly two issues namely ‘Communalism’ and ‘Demoralization of SC, ST and backward castes’.

(i)- Communalism, which is mainly because: -

(A)- Out of un-Islamic cowardice the Indian Muslims (despite asking them repeatedly through the media) did not file writ petitions in Supreme Court against communal policies of Hindu majority Indian State in the matter of Babri Masjid, reservation and cow slaughter.

(B)- People of J&K did not file writ petition in J&K high Court for plebiscite as mandated by ‘Instrument of Accession’ (IoA)  the relevant part of which reads as - “[the question of Accession should be decided in accordance with the wishes of the people of the State, it is my Government's wish that, as soon as law and order have been restored in Kashmir, and her soil cleared of the invader, the question of the State's Accession should be settled by a reference to the people. Yours Sincerely Sd/- Mountbatten of Burma]”.

(C )- About 20 % of the population, the Hindus forced out from each of Pakistan and Bangladesh while Muslims remain the same rather increased a little to ~ 15 % in India. It has hugely poisoned Indian subcontinent, communally. The Hindus who came from Pakistan during partition (mainly Punjabis, Bengalis, Sindhis) committed blunders of forgetting & abandoning their native land. Rather in 1947 they should have demanded  - “[They should be rehabilitated in their native land of Pakistan (West & East) after establishing law & order conducive for such rehabilitation otherwise partition should be cancelled]”. After all population transfer is not a provision in the laws related to partition of India including ‘Indian Independence Act 1947’. Even now they should demand dual citizenship and should know that the last word on India’s partition is yet to be written.

(ii)- As far as demoralization of SC, ST and backward castes, even in Corona-lockdown there are three categories of Indians who (being economically and socially weaker) are the worst sufferers. First and worst are Dalits (Scheduled Castes and Scheduled Tribes) then comes Muslims and various backward castes. They are the overwhelming majority of India. There is nothing wrong in reservation especially to those sections of society who can’t get adequate representation in government services (hence can be given to any identifiable human group whichever demands reservation commensurate with its percentage in population). But it should not be given in the name of oppressed (Dalits), backward etc as it demoralizes the beneficiaries. Moreover demoralized people not only can’t get justice but also can’t run democracy.

In order to solves these two major problems Shah should get following 7 writ petitions filed: -

(1)- The decision of GOI (Government of India) and Governments of all the States / Union territories to impose / accept lockdown in the first place that too without proper preparation and at very short notice is certainly a point of controversy and debate but it can not be questioned by SCI directly. Shah needs to appreciate that during such emergencies (as Coronavirus pandemic) only so called ‘animal life’ of the people can be protected by governments and not the dignified life befitting a human being during normal times. Hence SCI is right in saying that “why wages are required when meals are being provided by the government?” especially when SCI has directed the government to ensure food etc for the people. The lockdown is imposed mainly for the purpose of social (physical) distancing and for stopping spread of Coronavirus from one place to another due to mobility of people. Hence a fresh petition should be filed in SCI to ask GOI and Governments of all the States / Union Territories as to: -  

(i)- Why people were allowed to come from the place of residence (of whatever type it may be) and why security forces were not deployed to stop them from coming out of their residence and why they were allowed to assemble in large crowds and  why they were allowed to move from one place to another (within cities and across cities and even across States) by walking, on bicycles, rickshaws etc

(ii)- Why governments arranged transportation for the people to move from one place to another during lockdown which defeated said purpose of lockdown.

(iii)- In view of above (i) and (ii) why SCI should not ask the governments to lift lockdown when governments are unable to implement the lockdown as is legally expected.

(2)- Curative petition does not demolish Article 32 of the Constitution rather it is an enforceable fundamental right. Hence Muslims should file writ (review) petition in SCI for restoration of status-quo-ante of Babri Masjid which was demolished in 1992 in presence of observer of SCI by mentioning that otherwise it will be criminal contempt on the part of SCI for lowering the authority of the Court under section 2 (C ) (i) read with section 16 of Contempt of Court Act. Also with a prayer in this writ (review) petition that SCI should direct GOI to be ready to requisition UNPKF in case communal Hindutva forces create law & order problem all across the country during restoration of status-quo-ante (if security forces of India can go in other countries for maintaining peace though UNPKF then security forces of other countries can also come in India for maintaining peace through UNPKF).

(3)- Writ petition to be filed by Muslims in SCI under Article 13 & 14 of the Constitution for quashing of discriminatory (especially against Muslims) all Reservation laws which, in the name of backward castes, is giving reservations to also those castes of Hindus which once ruled in India

(4)- Writ petition to be filed by Muslims in SCI under Article 13 & 14 of the Constitution for abolishing (because discriminatory against Muslims etc and favoring Hinduism in a secular India) all the laws related to cow protection, beef eating etc which are also causing lynching of Muslims and ‘Dalits’ in India.

(5)- Writ petition to be filed by people of J&K in J&K High Court under Article 226 of the Constitution (in SCI in appeal or otherwise if necessary) with prayers: -

(i)- Repeal the Article 1 (3) (a) of The Constitution of India and PART II THE STATE (3) of the Constitution of J&K [which illegally show J&K as Indian territory (like any other State of India) and even an integral part of India without any mention of the condition of plebiscite to decide the territory of J&K as per IoA].

(ii)- Quash all the orders,  legislation, constitution amendment etc  made on and after 5th August, 2019 which repealed 35-A and amended Article 370 of the Constitution, and bifurcated the State of J&K into two Union Territories.

(iii)- Direct the government to get a plebiscite in united J&K at the earliest possible after ensuring in united J&K the conditions (including outsiders-free united J&K) conducive for carrying out such plebiscite required by IoA.. 

(iv)- All political activists of J&K (including who publicly demand separation, freedom etc for J&K) who are detained, arrested and imprisoned before or after August 5, 2019 be freed.

(6)- A writ petition in SCI preferably by the said Punjabis, Bengalis, Sindhis (or their children): -

(i)- For making a declaration that ‘Population transfer’ is against the mandate of partition of India and against Secular Constitution of India.

(ii)- For repealing ‘Citizen Amendment Act’

(iii)- For directing GoI to identify ~ 80 million Hindus from Pakistan & Bangladesh (~ 20% of their present population) and to work for giving these ~ 80 million Hindus dual citizenship (one for India and another for Pakistan or Bangladesh).

(iv)- For directing GoI that if any such displaced persons presently in Pakistan or Bangladesh (Mainly Muslims) want to come to India then they should also be given dual citizenship.

(7)- For welfare of the people a writ petition should be filed in SCI for recovery of Rs 1,000 Trillion Income tax (from about 1 million tax evaders who are illegally posing themselves as farmers) as reported at https://timesofindia.indiatimes.com/business/india-business/Prominent-people-hiding-taxable-income-Jaitley/articleshow/51408323.cms . This money can be deployed profitably (or practically at no profit no loss) for the welfare of the people especially for (i)- Government houses which can be given on rent to be decided by statutory ‘Rent Commission’ (ii)- Elaborate public distribution system (iii)- Amended ESI for free universal health care where contribution will be given by all employees (from formal & informal sectors), employers and government and in management of this amended ESI the representatives of all the contributors will be there (majority from employees)

It is hoped Justice Shah will get above 7 writ petitions filed in order to enable the  Indian State to provide peace, justice and prosperity to the people of India especially to its overwhelming majority who otherwise are presently in a hopeless & miserable condition.

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