Allahabad HC orders that set the bar
Crises, external pressure, economics, and internal disasters are converging. India must step up
On Monday, January 25, the Supreme Court reminded the Uttar Pradesh government that a high court is also a constitutional court and cannot be taken lightly. The observation by Chief Justice of India SA Bobde followed a raft of significant judgments and orders delivered by the Allahabad high court when people knocked on its doors for having their fundamental rights protected.
The Allahabad high court has risen to the occasion each time, reaffirming the importance of the rights to privacy and autonomy while safeguarding civil liberties. It has set an example of how a constitutional court must act when justice delivery is an imminent necessity and not a luxury that can wait. Amid a challenging political and social atmosphere in Uttar Pradesh, the Allahabad HC has stood tall. Here are some instances in corroboration of how the high court took a stand:
Anti-CAA protesters’ posters/banners
The HC had in March 2020 taken strong exception to banners being put up by the state government to recover damages from those allegedly involved in the destruction of public property during protests against the Citizenship (Amendment) Act,or CAA, in Lucknow. The court came down heavily on the “name and shame” policy of the government and called it “undemocratic” besides an infringement of the right to privacy.
“In the present case, the cause is not about personal injury caused to the persons whose personal details are given in the banner but the injury caused to the precious constitutional value and its shameless depiction by the administration. The cause as such is undemocratic functioning of government agencies which are supposed to treat all members of the public with respect and courtesy and at all times should behave in a manner that upholds constitutional and democratic values,” a strongly worded HC order read.
Calling the state government’s move an “absolute encroachment on personal liberty,” the HC ordered the UP government to immediately remove the hoardings and submit a compliance report to the court.
Dr Kafeel Khan’s detention under the NSA
Six months after he was being on one charge or another, it was in September 2020 when Kafeel Khan got off the hook with the high court quashing his detention under the National Security Act. The HC ordered his immediate release, saying the UP government had done a “selective reading” of his allegedly anti-CAA speech at the Aligarh Muslim University. It emphasised that the medical doctor had called for national integrity and not incited violence while also noting there were no grounds to impose the NSA on him and extend his detention.
“A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also nowhere threatens peace and tranquillity of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the district magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent,” stated the HC order.
Khan has been a vocal critic of the Bharatiya Janata Party governments at the Centre and in UP.
Expresses concern over misuse of slaughter law
In October, the high court had expressed concerns over the misuse of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 to target innocent persons and lack of forensic evidence to prove that recovered meat was beef.
While granting bail to Rahmuddin, a person who had been booked for cow slaughter, the HC said: “The Act is being misused against innocent persons. Whenever any meat is recovered, it is normally shown as cow meat (beef) without getting it examined or analysed by the forensic laboratory. In most of the cases, meat is not sent for analysis. Accused persons continue to remain in jail for an offence that may not have been committed at all.”
It observed that there was a need to take care of old or nonmilking cows which are abandoned by owners if the law against
the slaughter of cows is to be implemented in letter and spirit.
Right to choose life partner a fundamental right
Days before the UP government notified the anti-conversion ordinance amidst a clamour against so-called love jihad, the high court delivered a landmark verdict on the sanctity of inter-faith marriages in November 2020.
“Right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty,” said the court, adding interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.
“To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown up individual but would also be a threat to the concept of unity in diversity,” said the HC, as it quashed an FIR lodged by a man against his daughter’s husband, whom she married after conversion to Islam.
The court also observed that its two previous rulings against marriages performed after alleged conversions were not good in law since they failed to take into account the rights of liberty, equality and privacy.
Women have right to live on own terms
By a judgment in December, the
Allahabad high court reunited a Hindu woman with her Muslim husband, underlining that “she has a choice to live her life on her own terms”. The court decided a habeas corpus plea filed by the man, who complained his wife had been sent to her parents against her wishes by the Nari Niketan or Child Welfare Committee (CWC).
“As the corpus (woman) has attained the age of majority and she has a choice to live her life on her own terms and she has expressed that she wants to live with her husband, she is free to move as per her own choice without any restriction or hindrance being created by third party,” held the court in its judgment. The court also quashed an FIR registered against the man for allegedly abducting the woman.
Abuse of power in Tablighi Jamaat case
The high court was critical of the invocation of Section 307 (attempt to murder) under the Indian Penal Code against a person from Mau who had attended the Tablighi Jamaat congregation at Delhi’s Nizamuddin in March 2020.
“From a perusal of the material, charge sheeting the applicant under Section 307 IPC prima facie reflects abuse of the power of law,” said the HC as it stayed the criminal proceedings against the man concerned.
The court also directed the police officers to file personal affidavits to justify invoking Section 307 from the facts of the case.
Govt drops anti-conversion charge after HC protection
In December, the high court restrained the state government from arresting a 32-year-old Muslim man from Muzaffarnagar district -- one of the first to be charged under UP’s controversial anti-conversion law. The man was charged with having an affair with the wife of a Hindu man. The court had then said: “Victim is admittedly an adult who understands her wellbeing. She, as well as the petitioner, have a fundamental right to privacy and being grown-up adults who are aware of the consequences of their alleged relationship.”
Later, in January, the state government told the high court that the police had dropped charges against him since no evidence was found during investigation. “During investigation no evidence was found that the accused Nadeem was having any illicit relation with the woman. Further, during investigation, no evidence was found in support of the allegation that Nadeem was trying for her religious conversion as alleged by the complainant,” its affidavit stated.
Notice before interfaith marriages not mandatory
Delivering yet another progressive ruling earlier this month, the high court ruled that the publication of a notice of intended marriage under the Special Marriage Act (SMA) and inviting objections was not mandatory. The court said that any additional burden in law on a couple only on account of having an inter-faith marriage would be a violation of their right to equality, dignity and privacy.
Interpreting the SMA in the backdrop of the recent Supreme Court judgments on privacy and liberty, the HC said that it shall be optional for the parties to the intended marriage to make a request in writing to the marriage officer to publish or not to publish a notice for inviting objections from the public at large.
“Making such publication mandatory would invade in the fundamental rights of liberty and privacy. It would also affect the couple’s freedom to choose marriage without interference from state and non-state actors”, held the HC.
Anti-conversion ordinance scrutiny
The high court has shown its resolve to examine the constitutionality of the UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020, despite repeated attempts by the state government to take away the issue from its jurisdiction. Responding to a bunch of petitions, the state government’s additional advocate general had first requested the HC not to examine the law because similar petitions were pending before the Supreme Court. But to no avail. The HC not only shot down a plea for adjournment, but it also asked the government to file its affidavit in response to the petitions in order to bring its stand on record. The UP government had to then submit its affidavit.
Getting no relief from the HC, the state government took recourse to the Supreme Court and filed a transfer petition. It requested the top court to stop the HC from scrutinising the ordinance. But this endeavour also failed. On Monday, the top court declined to entertain its transfer petition and directed the state to go before the HC on February 6 when the case will be heard next.
While it is yet to rule on the constitutional validity of the controversial ordinance against forced conversion, the Allahabad high court, by frequently stepping in to underscore the significance of fundamental rights, has undoubtedly been able to generate a sense of confidence about due legal process culminating in a justice-oriented decision.
As Covid-19 vaccines roll out, the focus has shifted to economic recovery. Yet, we have not had a political conversation about whether the kind of economy we want is in line with what the planet needs. India cannot continue with the folly of a businessas-usual development model. What factors could make political leaders champion a more climate-friendly pathway to prosperity?
Political representatives must deliver on restoring growth and attracting investment. Markets demand it. They must create conditions to revive old jobs and create new ones. People demand it. Without resources of the market or votes of the people, politicians have little future.
Meanwhile, the planet continues to sound warning bells. Take Uttarakhand, where the frequency and intensity of extreme flood events have increased four-fold since 1970. Rising temperatures and micro-climatic changes have ensured that drought/ drought-like situations have doubled.
How can we align the people’s present with the planet’s future? One driver is crisis. Political leaders could have used the pandemic to promote a greener recovery. Renewable energy capacity continued to be contracted during the pandemic. But the share of renewables in the primary energy mix remains marginal, rising from 0.1 to 2% in the past decade. Effort and investment must exponentially increase.
When crises lose steam, enthusiasm for reform wanes. A second driver is external pressure. From United States (US) President Joe Biden’s climate leaders summit (April), the G7 in the United Kingdom (June) to the United Nations’ HighLevel Dialogue on Energy (September), G20 meetings (October), and Conference of the Parties-26 climate negotiations (November), India will face pressure this year to announce a target year for net-zero emissions.
Bilateral economic relationships will matter more. The European Union (EU) plans to introduce a Carbon Border Adjustment Mechanism as a part of a broader agenda to reduce emissions by at least 55% by 2030 below 1990 levels. The US might also consider border carbon tariffs. Whereas energy-efficient cement producers in India might benefit, its steel and automobile exports could be affected. The EU and the US being significant trading partners, India will likely dispute such unilateral moves. But trade-environment linkages will increasingly influence policy.
Crises are relatively short-lived and countries don’t like being pressured by outsiders. For systemic change to be environmentally and politically sustainable, the interests of the elite and the climate-vulnerable must converge. Budget 2021 did not explicitly envision a low-carbon India, but showed initial signs of such convergence. Consider three major sectors, power, mobility and heavy industry. Of late, power investment has been mostly in renewables — from private sources. As renewables succeed, opposition from thermal power asset owners and distribution companies grows. State-run distribution companies (discoms) are locked into power purchase agreements that force them to buy from inefficient coal power plants, whereas investments in newer plants yield low returns, thanks to low-plant load factors.
Is a new alignment of interests possible? The budget proposed ₹3.5 lakh crore ($48 billion) to help ailing discoms. If support for installing prepaid smart meters were resultslinked, the package could improve the balance sheets of discoms. But support should be contingent on stricter enforcement of renewable purchase obligations, respecting contract sanctity. Further, India could save about
₹20,000 crore by shutting down inefficient plants, support their employees, create vastly more jobs (especially in distributed renewables), and level the field for a new power elite.
The automotive sector might resist disruptive and rapid acceleration towards e-mobility. But India’s 2030 vision for e-mobility is a $206-billion opportunity. Aiming to boost the industry and generate direct/indirect jobs, the finance minister announced ₹15,000 crore for public transport and inducting 20,000 city buses using clean fuel. There is also the ongoing FAME-II scheme with ₹10,000 crore approved for hybrid/electric buses. A Green Urban Mobility Challenge (₹3,000 crore) for innovations in nonmotorised transport and bus retrofits is promising. Urban mobility can edge towards sustainability, if it addresses the mobility needs of the majority while a potential new auto elite and new workforce emerge.
The hardest task is decarbonising heavy industry. Steel, cement, fertiliser and petrochemicals are growing rapidly, responsible for three-quarters of industrial emissions. This is why
the budget’s announcement of a National Hydrogen Mission could be a game-changer. It signals that India is seriously considering an alternative to fossil fuels for strategic industrial sectors. With the potential of 1.9 million jobs in the green hydrogen supply chain, this could deliver the ultimate convergence of interests between big capital and labour.
India continues to witness the wanton destruction of biodiversity and fragile ecosystems from ill-planned and poorly executed infrastructure projects. The contractor-politician nexus will not weaken easily. But these examples indicate a pathway to reform, strengthening the politician’s hand when new market interests and people’s priorities align with sustainable choices. Days after the Chamoli glacial burst, will a climate leader step up in India, build coalitions with an emerging green elite and make the welfare of the people and the planet an electorally winning issue?