2025, Articles to read

The Hindutva agenda: The Electoral rolls gambit

Ravi Nair / October 5, 2025 / 2025, Articles to read

Instead of hollowing out Universal Adult Franchise which enriches democracy, can be undermined by mass disfranchisement of those entitled to vote.

Hindutva Agenda on electoral politics in India. Image is representational.Photo/twailr.com

Universal Adult Franchise in the aftermath of an impartially conducted census in tandem with a caste census will sound the death knell of continued upper caste supremacy, and the politics of religious majoritarianism in India. It is little wonder that the census has not taken place since 2011.

Data on caste was not available since the 1931 census. The UPA government initiated the Socio Economic and Caste Census (SECC) in 2011. Specific data on caste was not released. Observe the difficulties of the Congress governments in Karnataka and Telangana and the NDA government in Bihar.

General elections taking place without the freezing of a fresh delimitation of constituencies until the concerns of the Southern states are addressed would be stimulus for those giving vent to feelings not confined to greater autonomy.

A frontal attack on adult franchise would be folly even for the supercilious amongst the twice born and the well-heeled. In the wake of the Mandal Commission report, it is difficult to stop the inching towards a more socially equitable society for long.

Even the Rashtriya Swayamsevak Sangh (RSS) in September 2024 indicated its “support for a Caste Census, while adding that it should not be used for political or electoral purposes.”

The Genesis

Adult franchise was always seen as a threat to the upper castes and the propertied classes. Dr B R Ambedkar had argued that it be part of the fundamental rights chapter but Sardar Vallabhbhai Patel was not amenable to this as Chairperson of the Advisory Committee.

Many important Congress men like Mosalikanti Thirumala Rao opposed universal adult franchise. Brajeshwar Prasad argued, universal adult franchise as a ‘violation of the tenets of democracy’. Even social democrat, K.T. Shah and liberal Hridhay Nath Kunzru were not enthused by the prospect of universal adult suffrage, albeit on the grounds of literacy. Krishna Chandra Sharma and a few other Congress men supported it.

When the Constituent Assembly adopted the principle of universal adult franchise, Alladi Krishnaswami Iyer, a member, remarked that this was done, “with an abundant faith in the common man and the ultimate success of democratic rule, and in the full belief that the introduction of democratic government on the basis of adult suffrage will bring enlightenment and promote the well-being, the standard of life, the comfort, and the decent living of the common man”

The lone Communist member of the Constituent Assembly, Somnath Lahiri wanted proportional representation in addition to universal adult franchise. As for Hindutva supporters, the constitution itself was not acceptable.

The Mandal commission report resurrected the need for caste-based apportioning of the development cake. Since then, it has been a protracted rearguard battle by much of the state machinery on behalf of the socially and economically haves who want to be perpetual haves.

Judicial Insouciance

India is in real danger of slipping into Hindutva majoritarianism. It will be no small measure due to judicial attitudes on many key issues related to the continuance of representative democracy in India. The most recent of which is the inordinate delay in deciding the challenges to Constitution Bench judgment in Anoop Baranwal v. Union of India (2023).

In Anoop Baranwal, the Constitution Bench analysed Article 324 of the Constitution dealing with the appointment of Election Commissioners. It spoke of the need to take the appointment “out of the exclusive hands of the executive.

It said that “a pliable ECI, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power”.

The Court was assertive when it said that “the outpouring of demands for an impartial mode of appointment of the members require, at the least, the banishing of the impression that the ECI is appointed by less than fair means.”

As Senior Advocate, Kaleeswaram Raj, further succinctly puts it:

“The Modi regime promulgated the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act in 2023 with a view to nullify the Constitution Bench judgment in Anoop Baranwal v. Union of India (2023). The Act excluded the Chief Justice of India (CJI) and included a Cabinet Minister to be nominated by the Prime Minister in his place, as part of the Selection Committee for choosing the Election Commission of India (ECI). This statute was legally challenged in several writ petitions which are yet to be finally heard. Significantly, the petitioners also sought a stay of the enactment. A Bench, led by Justice Sanjiv Khanna (as he then was), heard the application for a stay and rejected it on March 22, 2024, by a detailed order in Dr. Jaya Thakur and others v. Union of India (2024). Had the statute been stayed, the country could have had a different umpire for the 2024 Lok Sabha elections and the subsequent Assembly elections. In all probability, a more independent ECI could have had the potential to conduct the elections more fairly and impartially. That this did not happen shows the Supreme Court’s failure to act at a time when it was supposed.”

The Hindutva judgement of 1995 of the Supreme Court opened the floodgates for ultra-nationalism. This was followed by the Manohar Joshi petition. The gates of secularism had been breached.

The Election Commission of India

One of the great popular myths in India popularized by the corporate owned media was that the arrival of T.N. Seshan gave the Election Commission of India its gravitas. Few remember Sukumar Sen who in an age where technology was non-existent in the electoral process not only got it up and running but did a splendid job.

T Swaminathan, a former ICS officer who conducted the historic March 1977 election got no kudos for it. Self-effacing, he drove out into the sunset. Few remember the then iconic poster in all the official languages across India. “Vote without fear, your vote is secret.” It made a difference. Small but important.

J M Lyngdoh will be remembered for being a good helmsman on Gujarat during 2002 and dealing with the fulminations of then Chief Minister, Narendra Modi, with a rare dignity.

Seshan was the quintessential civil servant who finds his or her enlightenment only after retirement. He was then a young Collector in Madurai. Kodaikanal, fell within his jurisdiction. He was designated as detention officer for Sheikh Abdullah in detention there.

Abdullah had written to Indira Gandhi asking him to be spared the ignominy of his personal letters from his wife, Begum Abdullah, being steamed open and read by the detention officer. Seshan was ticked off by Delhi for being too much of an eager beaver. There is a self-serving account of this in Seshan’s autobiography.

T.N. Seshan got catapulted as Chief Election Commissioner in December 1990 through some astute lobbying with then Prime Minister, Chandrashekar on his behalf.

T.N. Seshan’s mind since 1994 was the incubus of the electoral identity cards. We were told that that these cards were the panacea for the ills of the electoral system. The then nascent data industry hit the mother lode. From Electoral Identity Cards to Aadhar cards to Digiyatra farmed out to a private concern, this cornucopia, sorry, Kamdhenu cow still delivers to the deep state and the surveillance and computer industry. The latest being face recognition technology across many cities in India.

There is a dire need for a comprehensive performance audit of the Election Commission of India.

Election Commission and the BJP Government Confusion, their timeline

The first deletions

In 2015 researchers argued that the marriage of Aadhaar and EPIC will exacerbate the principal problem it is intended to solve: voter disenfranchisement and registration irregularities. An initiative known as the National Electoral Roll and Purification Program (NERPAP). NERPAP operated for a few months before being halted by a Supreme Court decision that limited the use of Aadhaar to four specific welfare schemes. In the brief period it was operational, NERPAP linked the registration information of 320 million voters to their Aadhaar number—but also disenfranchised 3 million voters.

In April 2018, then Union Information Technology (IT) minister, Ravi Shankar Prasad said that he was personally not in favour of linking Aadhaar card with electoral photo-identity cards (EPIC) of voters as the two served different purposes.

In June 2018, the Election commission stated, that a “new system will ensure real-time tracking of each stage right from the EPIC generation by the Electoral Registration Officer till the delivery of the voter ID card to the elector through the Department of Posts.”

In February 2019, Election officials have said that Electoral Photo Identity Cards were only for new voters, others can use any ID proof.

In December 2022, The Minister of Law and Justice, Kiren Rijiju told Parliament that the Election Laws (Amendment) Act, 2021, allowed Electoral Registration Officers to require the existing or prospective elector to provide the Aadhaar number for the Purpose of establishing identity on a voluntary basis.

Consent was to be obtained from the elector for Aadhaar authentication in Form 6B. There was no provision for withdrawing consent. Linking of Aadhaar was process driven and no targets have been given for linking Aadhaar with EPIC, we were told.

We were assured that the ECI strictly follows the guidelines prescribed by Unique Identification Authority of India (UIDAI) and does not store the Aadhaar numbers in its database. The Aadhaar number is used only for authentication purposes and ECI does not retrieve any personal information from the UIDAI Aadhaar data base.

Earlier Hari Shankar Brahma, a former Chief Election Commissioner welcomed the decision taken by the Centre to introduce the Election Laws (Amendment) Bill 2021 which was passed in the Parliament. “It is a very good idea. Linking a voter ID card with an Aadhaar card is best in the country and after that, you can detect and remove duplicate, bogus voter ID cards and purify the electoral rolls and election database….”

In August 2021, the government approached the Unique Identification Authority of India (UIDAI) with a proposal to permit the Election Commission (EC) to use Aadhaar for registration of new voters.

Aadhaar verification could be used for faster delivery of some other services such as change of address as well, the Law Ministry suggested.

In July 2023, Dr Sabyasachi Das of Ashoka University published a report called “Democratic Backsliding in the World’s Largest Democracy” which outlined two manipulations in detail that were carried out in the 2019 Lok Sabha elections.

Firstly, Registration manipulation, which is the padding of the electoral roll. By adding and deleting voters strategically. By manufacturing fake voters, most, if not all, of whom vote for the BJP.

Secondly, turnout manipulation, which is the addition of voter tallies after the polls have closed-most, if not all, of whom vote for the BJP.

Examples were given, claims supported. Soon thereafter Ashoka University was raided and given a strict warning by the Government. Dr Sabyasachi Das was fired thus, giving a clear signal to all universities and institutions in India, to not pursue any research pertaining to the electoral system in India. There hangs a tale.

In March 2025, Election Commission was to fix duplicate voter ID numbers issue in 3 months.

In March 2025, a Hindutva publication informed us that, “The Election Commission announced plans to link Aadhaar numbers with Electoral Photo Identity Cards to combat electoral fraud and fake voters. This step follows consultations with UIDAI to enhance the transparency and accuracy of voter rolls.”

In July 2025, the Election Commission informed the Rajya Sabha that there was no category of suspicious voters. It informed Rajya Sabha that the process of linking Aadhaar and voter ID cards have not begun.

In 2025, a bolt from the blue, the ECI decided that Aadhar cards were inadequate.

Then the Supreme Court suggested that they be accepted.

The issues around the present round of disenfranchisement

For the Poor – Ration Cards not sufficient proof

In 1997, the Targeted Public Distribution System (TPDS) was launched, focusing on distributing food to the poor through special ration cards. In 2013, The National Food Security Act (NFSA) came into force, providing a legal right to subsidized food grains for a large portion of the population. In 2018, the “One Nation One Ration Card” (ONORC) scheme was launched, enabling portability of ration cards across the country for migrant workers and their families. For the rural poor, the ration card is the most prized possession they receive from the state.

In an incisive article, Prof Irudayam and Arif Nizam have laid bare how nearly 3.5 million migrants (4.4% of the total voters). have been labelled as “permanently migrated” for being absent during house-to-house verification. These voters now face permanent disenfranchisement not just in their places of work but also at home.

Voter ID Card

The Election Commission of India (ECI) requires citizens to produce Electors Photo Identity Card (EPIC) at the polling station before casting their vote. However, those who are unable to produce their voter’s ID card may use…Passport Driving License Service Identity Cards with photograph issued to employees by Central/State Govt/PSUs/Public Limited Companies Passbooks with photograph issued by Bank/Post Office PAN Card Smart Card issued by RGI under NPR MNREGA Job …”

The BJP had its goals mapped out since it came to power in the Modi incarnation in 2014. As early as 2018, Amit Shah, the home minister stated that they were here to stay in power for the next 50 years. The Prime Minister was having 1000-year visions.

Monitoring

The Government will not allow any credible international election monitoring organization into India. It is incumbent that a national group like the Constitutional Conduct Group take up this task. Most of them have conducted elections at all levels and are familiar with the electoral machinery. The Mahagathbandhan initiative of going to the voter is correct.

Democracy has certainly been enriched by universal adult suffrage. The surest way to undermine it is mass disfranchisement of those entitled to vote.

The RSS as pater familias of the Sangh Parivar does not believe in democracy, internal or external. Its adherents duplicitous, swear loyalty to the constitution filing nominations for elections or getting government jobs while seeking to establish a Hindu majoritarian state.

The liberals from the outset revealed a gullibility that is still exasperating. In the 1960s and early 1970s, the slogan in Bihar by feudal vigilante armies near polling booths was,” Vote tu mahara, Booth hamara.” The vote is yours, the booth is ours. All this while they stuffed the electoral boxes!

Technology has come a long way since then, Electronic Voter Machines without Verified paper audit trail (VVPAT) in most cases. Mass deletions of voters from electoral lists across many states in India are dry runs for the general elections. And technology in India is available for precision warfare but not periodically updating digitally readable voters lists.

For us, the bells toll.

Hindutva Strategy: Electoral Rolls and Caste Census Impact

Articles to read

Analysis: On civil liberties and the Supreme Court, there is little to celebrate since the Emergency

Ravi Nair / October 5, 2025 / Articles to read

Fifty years since the Emergency, a reflection on personal liberty from the lens of the UNHRC’s periodic review of ICCPR implementation

The Supreme Court delivered its Judgement in ADM Jabalpur v Shivkant Shukla on 28 April 1976. The Court emphatically endorsed the government’s argument that the right to move court for the violation of fundamental rights, including the right to life, could be suspended during an Emergency.

I remember that it was a muggy Wednesday. I remember because, at the time, I was in prison in Tihar Jail’s Ward 13. It took a few days for the details about the majority’s decision—and Justice H.R. Khanna’s courageous dissent—to reach us in the ward. We were fortunate to have H.V. Kamath, the veteran parliamentarian and member of the Constituent Assembly, to explain the import of the decision to us fellow inmates.

The death of democratic temperament

Where do we stand now, 50 years on from that fateful Judgement that caused even Opposition leaders to supplicate to the political executive? Well, not in a too different place. The surveillance state is more of a reality in 2025 than it was in 1976—take this from someone who has lived through both. Yes, perhaps cold comfort can be drawn from judgements like Puttaswamy, which make for excellent reading on the architecture of our rights but have come to mean little in practice. I’d go so far as to make the argument that High Courts and district courts have fared better in protecting civil liberties, due to them having more touch points with procedural law.

For those who care to see, it’s clear that personal liberty and democratic freedoms do not need one fell swoop to be destroyed. The majority’s opinion in ADM Jabalpur, I submit, was more symptom than cause. By its very nature, the executive is on a constant quest to accrue greater power. While doing so, it sometimes plays wolf in sheep’s clothing and is facilitated by a citizenry that believes that a periodic trek to the election booth is adequate to safeguard freedoms. It is a truism that the democratic temperament dies first within us, then in society around us and then in the country.

The Emergency’s long-term fallout

Much of the executive overreach and judicial acquiescence we are familiar with today has its roots in the Emergency. It would require more than a few pages to do a laundry list of the long-term fallout of the Emergency. An item that would be near the top of the list is the frequent transfer and refusal of Supreme Court elevation of High Court judges who are not on the same page as the powers to be.

There has also been an abject failure to adequately represent judges from the Dalit, tribal and other minority communities at all levels of the judiciary. As Thurgood Marshall, the first African-American judge in SCOTUS, is known to have remarked: “Equal means getting the same thing at the same time and in the same place.”

Despite the excesses of the Emergency and all the ink spilled on the need to protect personal liberty, preventive detention continues to be resorted to rampantly by both central and state governments. The Supreme Court’s overall approach is well-reflected in the decision in AK Roy v Union of India (1981).

There, a prisoner under the National Security Act, 1980, had challenged the non-implementation of the 44th Constitutional Amendment where the Morarji Desai government, in its wisdom fresh from the Emergency, had introduced several limitations on preventive detention. One of these amended Article 22 of the Constitution to reduce the maximum period of preventive detention before obtaining the opinion of an Advisory Board from three to two months. Another change did away with the Parliament’s power to create a class of situations where a person may be detained without the approval of the Advisory Board.

These provisions were not notified despite the Amendment being passed by both Houses of Parliament and signed off by the President. The Supreme Court noted that the delay was unexplained and unreasonable, especially since 43 of the 44 sections of the amendment had been brought into force. Yet, it ultimately upheld the National Security Act,1980, while observing that the amendment’s enactment was a matter for the legislature and not the judiciary.

Since then, there have been numerous instances of the National Security Act being deployed by governments to detain individuals without cause and without following even the minimal protections offered by Article 22 of the Constitution. The circumvention of release orders; the reissuing of detention orders on release; targeting of political opponents through detentions—all this has continued under the watch of the Supreme Court.

Failure on a human rights audit

In July last year, the UN Human Rights Committee (UNHRC) adopted concluding observations after consideration of India’s fourth periodic report on the implementation of the International Covenant on Civil and Political Rights (ICCPR).

The Committee regretted that while India’s Supreme Court had given effect to ICCPR in “its sentences”, the ICCPR “does not prevail” in cases of disparity with domestic law. For instance, the provisions of Article 9 of the ICCPR (on the right to liberty and security, which makes no mention of preventive detention) were only applied in cases where there was consistency with Article 22 of the Constitution.

The UNHRC also remained concerned about the decades-long application of counter-terrorism legislation in “so called disturbed areas”, including districts of Manipur, Assam, Jammu and Kashmir. It noted that while such special laws could be enacted as emergency measures under the ICCPR regime, India had not officially declared a public emergency as provided in Article 4 of the ICCPR. The human rights violations reported from these areas included: “excessive use of force leading to unlawful killings, arbitrary detention without formal charges for years, habeas corpus petitions that are not dealt with expeditiously, sexual violence, forced displacement, torture and ill-treatment.”

On extra-judicial killings, the Committee pointed out an alarming figure from Manipur: out of 1,528 documented instances from 1979 to 2012, only 39 FIRs were registered, some of which have not been scheduled for trial. One of the main reasons for this was the refusal of the government to sanction prosecutions.

The Committee also remarked on the absence of an offence of torture in India’s new criminal code. The UNHRC regretted that India had not ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment despite an indication to commit at the previous dialogue in 1997.

The UNHRC also had concerning observations on undertrials. The review noted that, in 2022, more than 75 percent of the prison population was undertrial, with a disproportionate number of Muslims, Dalits and Adivasis and people living in poverty. In this context, it also remarked on the menace of arbitrary arrests and the difficulty of obtaining bail in India. It specifically called out the reversal of the presumption of innocence in bail applications under the Unlawful Activities (Prevention) Act, 1967.

Conclusion

The 17-page UNHRC review captures a snapshot of India’s civil liberties and human rights reality, 50 years after an Emergency clamped down on them in a manner that people still remember. Its reference to the Supreme Court stepping in to uphold the ICCPR only when it is convenient under Indian law sums up the state of affairs. We would also do well to remember its note that decisions of the Supreme Court relevant to the implementation of the ICCPR haven’t been effectively or fully executed.

Reading the bleak picture painted by the report, one is left with the question: Is there a distinction between an Emergency regime that subverts the Constitution and others that do likewise in ostensibly ‘good times’? Can the latter still be considered a democracy?

Ravi Nair is Executive Director of the South Asia Human Rights Documentation Centre.

On civil liberties and the Supreme Court, there is little to celebrate since the Emergency – Supreme Court Observer

HRF Monthly, Human Rights Features

Due Process: The nuns, the State, and the machinery of suspicion: An account

Ravi Nair / October 5, 2025 / HRF Monthly, Human Rights Features

The recent arrest of two nuns in Chhattisgarh under anti-conversion and NIA laws reveals the fictional limits of the Indian State’s persecution of religious freedom, all at the cost of due process.
IN A MATTER OF RELIEF, on August 2, 2025, bail was granted to the two Catholic nuns, Sr Preeti Mary, Sr. Vandana Francis and a tribal youth who was accompanying them in Chhattisgarh, Sukhman Mandavi. All evidence suggests that the arrests, made on July 25, were needless in nature.

On July 25,Sr Preeti Mary and Sr. Vandana Francis of the Congregation of Assisi Sisters of Mary Immaculate were arrested by the Chhattisgarh Government Railway Police (‘GRP’) in Durg Railway Station in Chhattisgarh on unfounded charges of religious conversion and human trafficking. A young man accompanying the nuns, Sukhman Mandavi, who hailed from a tribal community, was also detained.

The nuns, originally from Kerala, were waiting at the railway station platform with three other women, all of whom hailed from tribal communities and were aged between 18 to 20 years of age, to catch a train to Agra.Media reports suggest that when the Train Ticket Examiner enquired the three women regarding their tickets. On informing the TTE that their tickets were with the nuns, the TTE immediately called members of the Durga Vahini Matrushakti and Bajrang Dal, right-wing activist groups that have consistently engaged in harassing religious minorities in the country. Soon the nuns were surrounded, heckled and verbally abused, with a mob accusing them of forceful conversion and trafficking. This occurred even as the women and nuns reiterated that they were travelling to Agra to work in hospitals as helps at salaries of Rs 8,000 – 10,000 per month.

Police reports state that the women were being taken to Agra for vocational training and employment. The incident escalated into a standoff, with Bajrang Dal members staging protests outside the Government Railway Police station. Counter-protests soon followed, with the local Christian community defending the nuns.
This occurred even as the women and nuns reiterated that they were travelling to Agra to work in hospitals as helps at salaries of Rs 8,000 – 10,000 per month.

The FIR, registered under sections of the Chhattisgarh Religious Freedom Act and the Immoral Traffic (Prevention) Act, was based on a complaint by a local Bajrang Dal worker, who alleged that the accused forcibly converted three women from Narayanpur district and were attempting to traffic them.

Even though the police arrived while the right-wing group workers were heckling and intimidating the group, they did not intervene to stop the intimidation of the nuns. The trio (the two nuns and the youth) were then arrested and taken to the Durg Police station. Then, a local court sent them to judicial custody till August 8.

They were charged under various sections of the Bharatiya Nyaya Sanhita, 2023 , the Chhattisgarh Freedom of Religion Act and the National Investigation Agency (NIA) Act.

According to the FIR, charges include:

    Section 143 of the Bharatiya Nyaya Sanhita (BNS) – Trafficking of person

    Section 4 of the Chhattisgarh Freedom of Religion Act – Unlawful Conversions

The nuns, the State, and the machinery of suspicion: An account
Are anti-conversion laws antithetical to the Constitution of India?

As trafficking is considered a ‘Scheduled Offense’ under the amended NIA Act, the Centre can invoke the provisions of the Act for investigation by the NIA, with proceedings before the special NIA Court.

The nuns moved bail applications before both the Judicial Magistrate First Class (‘JFMC’) and the Sessions Court at Durg, in succession. The JFMC rejected the bail application on July 29, 2025. On July 30, the Sessions Court also denied bail on the ground that only the NIA Court had jurisdiction to hear the application because of the human trafficking charge. The sanction of the Central government, on application from the state government, to try the case as a Scheduled Offence under the NIA Act, need only be furnished in fifteen days.

On August 2, the nuns and the tribal youth were conditionally granted bail by the NIA Court in Bilaspur, Chhattisgarh, at a bond of Rs 50,000 each. The court also imposed the condition that all three must surrender their passports and fulfill reporting requirements.

Amidst increasing anti-Christian sentiment, religious freedom is at a crossroad

As a secular state, India is characterised by religious tolerance, equal treatment of all religious groups and respect for all faiths and religions. Constitutionally, all religions enjoy the same protection without favour or discrimination. Secularism is a basic feature of the Constitution, and the latter protects freedom of religion and conscience, as well as the right of all individuals to freely profess, practice and propagate religion under Article 25,.

While freedom of religion and conscience is a fundamental right in India, its operation is subject to public order, morality, health and other fundamental rights. This is in consonance with Article 18(3) of the International Covenant on Civil and Political Rights.
In 2022, a written statement submitted by the European Centre on Law and Justice to the UN General Assembly highlighted the scope and extent of violence perpetrated against the Christian community in the country owing to these state anti-conversion laws.

However, in India, various anti-conversion laws impose restrictions, prohibit conversions from one religion to another by the use of force, inducement, allurement, or fraudulent means. In 2022, a written statement submitted by the European Centre on Law and Justice to the UN General Assembly highlighted the scope and extent of violence perpetrated against the Christian community in the country owing to these state anti-conversion laws. The statement also urged the UNGA to call on India to repeal the anti-conversion laws. The constitutional validity of these laws has been contested before state High Courts and the Supreme Court.

In Rev Stanislaus v. State of Madhya Pradesh (1977) the Supreme Court of India had upheld the constitutional validity of a legislation prohibiting conversion of a person by force, fraud or allurement. While this has precedential value, the rulings in states are not uniform. In fact, leading up to the Rev Stanislaus decision, the Orissa High Court had, in 1972, held such a law as unconstitutional, a decision subsequently overturned by the top Court five years later.

The anti-conversion laws are in effect against the constitutional guarantee to practice and propagate one’s religion. If freedom of religion is essential to support personal beliefs rooted in the inward association doctrine, then individuals must have the right to change their beliefs and religion. Limiting this freedom to change one’s religion undermines the very principle of religious freedom. They limit and punish an individual’s right to convert and right to persuade or support another individual to convert voluntarily.

Moreover, while upholding the constitutionality of such laws, the Supreme Court, in 1977, failed to discuss the definitions of inducement and allurement. This wide scope for defining the terms allows irresponsible statements from people in powerful positions, with very real implications for practitioners of the faith.

This is precisely what happened in the case concerning the nuns in Chhattisgarh. Framing the incident as one of women’s safety, Chhattisgarh Chief Minister Vishnu Deo Sai posted on X: “Three daughters of Narayanpur were promised nursing training and later jobs. It’s an attempt to convert people through human trafficking by allurement. Investigation is ongoing. The case is sub-judice.” The equivalence of allurement to employment and education opportunities without any reasonable boundaries further permit the harassment of the community on unreasonable grounds.

Such laws empower and encourage government persecution, vigilante violence, and discrimination against religious minorities, while also intensifying efforts to suppress civil society organizations. Given these particularly severe religious freedom violations, the USCIRF in 2023 recommended that the U.S. Department of State designate India as a country of particular concern under the International Religious Freedom Act.

The arrest of the nuns comes amidst growing fear and marginalization faced by Adivasi (indigenous) Christians in Chhattisgarh. Reports highlight instances of families being ostracized, denied access to local resources, and even prohibited from burying their dead-on ancestral land. Observers note that the rising hostility includes social boycotts, violence, and pressure to reconvert.
The nuns, the State, and the machinery of suspicion: An account
A pan-Indian law against ‘forced’ conversions should respect right to privacy and not appear to be arbitrary

Degree Prasad Chouhan, state convener of the Chhattisgarh Association for Justice and Equality, recently told Frontline that such incidents are on the rise, fuelled by state repression and caste tensions. He emphasised, “Anti-conversion rhetoric is being used to justify discrimination against Adivasi Christians. Despite constitutional protections, Christians are treated with suspicion, legally harassed, and deprived of basic rights.” He also pointed out that local gram sabhas (village councils) have exploited laws such as the Panchayats (Extension to Scheduled Areas) Act, which grants autonomy to tribal communities, to prevent nuns and priests from entering villages.

Moreover, as noted earlier, the FIR was registered on the basis of a complaint by right-wing group workers, and not the alleged ‘victims’ of conversion (the women in question).

Notably, the Karnataka High Court last month, in Mustafa and Ors v State of Karnataka (2025), read down provisions of Section 4 of the state anti-conversion law , quashing a FIR against three Muslim men and holding that third parties cannot file such cases.

In the case of the nuns, although the Freedom of Religion Act has been invoked, no evidence points to the fact of conversion. One of the women involved in the incident has publicly stated that she was coerced into making statements against the nuns. Despite her repeated pleas and statements pointing otherwise, the police recorded statements to the contrary. This could have been done seemingly under influence of right-wing group workers.

The family members of the tribal women also denied allegations of coercion. “Our parents are no longer alive, and I sent my sister with the nuns so she could take up a nursing job in Agra,” one family member has stated, “The sisters (nuns) have done nothing wrong. Even the boy is being falsely implicated.”
Eyewitnesses reported that before their arrest, the nuns were illegally detained, harassed, and humiliated by Sharma and her associates in the presence of police personnel.

Increasingly, state machineries are giving in to mob justice

That the TTE prioritised calling right-wing Hindutva group functionaries instead of the police first is telling of the anti-Christian sentiment rife within public institutions in the country. That the police stood by and watched as the nuns were intimidated by the right-wing Hindu fundamentalist activists gives more credence to this assertion. Videos circulated of the incident show one woman in particular, Jyoti Sharma, a member of the Durga Vahini Matrushakti, use derogatory language while accusing the nuns of forcibly converting and trafficking the girls.

Eyewitnesses reported that before their arrest, the nuns were illegally detained, harassed, and humiliated by Sharma and her associates in the presence of police personnel. Despite this, no FIR has been filed against Sharma. The Chhattisgarh Christian Forum claims it will file a counter FIR.

Only law enforcement agencies possess the authority to detain and question suspects and investigate crimes, and they must do so in accordance with due process. However, concerned citizens have raised doubts about the impartiality of the law enforcement agencies in such a tense situation. Rather than de-escalating the conflict and properly investigating the allegations, the Chhattisgarh police based their FIR largely on the statements from the right-wing group.

The Supreme Court has, on several occasions, underlined the dangers of mob vigilantism. But, as noted in a recent editorial in Indian Express , whether it is cow protection cases or matters related to religious conversion, law enforcement agencies show a disturbing tendency to let self-proclaimed community leaders take over.

The NIA Act has been invoked to create procedural ambiguity

The NIA Act constitutes an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the UN, its agencies and other international organizations.

The legislation empowers the Central government to direct the NIA to take over a case on a request made by the state government or in its own capacity. The NIA Act was amended in 2019 to enlarge the mandate of the NIA by inclusion of offences related to human trafficking, manufacture/sale of prohibited arms, cyber-terrorism and offences under the Explosive Substances Act, 1908, and expanded its jurisdiction beyond India.

The NIA Act was brought in to facilitate speedy trials and deliver quick judicial pronouncements by the establishment of the special courts. As of December 5, 2024, the NIA had registered 640 cases since its inception. There were 109 cases under active investigation and 395 under further investigation. 505 cases had been charge- sheeted, while 4174 accused had been arrested so far by the NIA. 595 have been convicted.
The nuns, the State, and the machinery of suspicion: An account
State of satire or satire of the State?: Notes on the FIR against ‘Ms. Medusa’

By booking the nuns under NIA, religious freedom has been completely conflated with terrorist activities and trafficking. This indicates the lengths to which the State is willing to go in order to create a chilling effect for religious minorities in India. The procedural ambiguities in legislations like the NIA further ensures that the accused are systemically denied due process and their right to a fair trial, creating endless points of contention with the State.

For the nuns and the young women, a routine train travel for better economic opportunities has turned into a nightmare facilitated by state machinery and legislation. The sanctity of the religious habit has been violated to further a collective agenda to impinge on the fundamental rights of religious minorities in the country.

The situation of minorities, and in particular Muslims and Christians, continues to remain parlous.

Home, HRF Archives, Human Rights Features

Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 2

Ravi Nair / February 5, 2025 / Home, HRF Archives, Human Rights Features

Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 2

In the second part of this series, we question the proportionality of detention given the low likelihood of deportations

Ravi Nair

The writer is the executive director, South Asia Human Rights Documentation Centre.

Published on:

05 Feb 2025, 11:08 am

As the first flight carrying Indians deported from the United States, it would do well to remind ourselves that this is being done with the acquiescence of the Indian Government. And rightly so. However, after the Supreme Court’s order of February 4, 2025, directing the immediate deportation of 63 individuals in detention camps, the Assam government and the Union find themselves between a rock and hard place.

Clearly, the deportation process will not be following accepted bilateral procedures on deportation agreed upon earlier between India and the once SheikhHasina ruled Bangladesh. There is a distinct possibility of forcible deportations and pushbacks at the already tense Indo- Bangladesh border.It is also another impediment to normalizing relations with our eastern neighbor. Given the mood of the streets in Dhaka, if Bangladesh shows acquiescence to the deportations by India, it will be a major nail in the coffin being built for the Mohammad Yunus led interim government by a range of actors on the political chessboard for Bangabhaban.

The move is also bound to attract international opprobrium. As is, Raisina Hill does not enjoy the political or economic heft to be able to expend diplomatic capital under President Donal Trump on the issue of immigrants.

Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 1

A little Background

As per the Assam Accord of 1985, the official reason why declared foreigners are kept in detention centres is to facilitate the Border Security Force (BSF) to apprehend them after the procedure for deportation to another country has been finalized. In a similar articulation, the Gauhati High Court has held that the purpose of detaining foreigners in detention centres immediately after detection is to ensure that they “do not perform the act of vanishing”. This reasoning does not differentiate between different individuals and their risk of absconding. Beyond this, a broader issue with detention is that in practice, deportation is highly unlikely to occur.

According to a report by Amnesty International, as of August 31, 2018, only 128 declared foreigners had been deported to Bangladesh, the alleged country of origin of the majority of declared foreigners. Notably, many of those detained have not even been declared foreigners yet. Still, they fall within the category of “D-voters” – those whose citizenship status is merely doubted or debated, and who have not in fact been declared foreigners yet. For D-voters, the prospect of deportation – which is the underlying motivation for preventive detention – is even more unlikely. In fact, because India declares individuals’ foreigners without consulting the individual’s alleged country of origin – usually Bangladesh – the responding country may refuse to allow the individual to be deported there, thus leading to roadblocks in the expulsion process and to an indeterminately prolonged detention. This, again, stands clearly opposed to basic principles of international law, which hold that detention must end when it becomes apparent that deportation is not likely to occur within a reasonable period.

Given the mood of the streets in Dhaka, if Bangladesh shows acquiescence to the deportations by India, it will be a major nail in the coffin being built for the Mohammad Yunus led interim government by a range of actors on the political chessboard for Bangabhaban.

The location of Detention Centres is concerning

Article 9(1) of the International Covenant on Civil and Political Rights (‘ICCPR’) is to be interpreted in a way that individuals whose proper sentence or final decision is pending shall not be detained in prisons, and instead be detained in separate detention facilities. This interpretation is supported by the General Comment No.35, which notes that “any necessary detention should take place in appropriate, sanitary, non-punitive facilities, and should not take place in prisons.” In violation of this,the six explicit detention facilities established by the Assam government are located within district prisons, where declared foreigners mingle with convicts.

What does the recent Supreme Court judgment on Assam migrants mean for dual citizenship in India? Part 1

Detention as default option

In fact, India appears to be violating Article 9 of the ICCPR on multiple grounds. First, while detention may legally only be applied when other means are not suitable, it has become the default. It is thus imperative that the Indian government instructs its law enforcement personnel in Assam to resort to non-custodial measures first. Second, orders for detention are issued based merely on the perception that an individual is a foreigner. Although preventive detention is legal under Indian law, it is an error of judgment to assume that all declared foreigners will abscond pending a final decision on their future if not detained.

India thus clearly violates Article 9(1) of the ICCPR, as nobody evaluates the risk of absconding of each person individually. Finally, the purpose of detention is unclear, as it is officially being imposed to facilitate deportation, while such deportation in reality rarely occurs. Therefore, while this form of preventive detention may be permissible under domestic law, it is highly arbitrary under international law.

Although preventive detention is legal under Indian law, it is an error of judgment to assume that all declared foreigners will abscond pending a final decision on their future if not detained.

Category III fair trial issues

The detention ofdeclared foreigners, as a means, is disproportionate to its end goal and thus arbitrary. However, the argument can be extended by highlighting how the process of identifying a “foreigner” through so-called Foreigner’s Tribunals in itself violates core principles of international law.

The United Nations Working Group on Arbitrary Detention has reiterated that the deprivation of liberty is unlawful if it falls under one or more of five categories. Category III states that a deprivation of liberty is unlawful if there is a total or partial non-observance of the international norms relating to the right to a fair trial as enshrined in Article 14 of the ICCPR. In other words, an arrest or detention that is ordered through an unfair trial is by default arbitrary.

The procedural safeguards held in the sub-provisions of Article 14 are extensive. First, they set out the requirement of a fair and public hearing by a competent, independent and impartial tribunal established by law, and codify the crucial principle that an individual must always be considered innocent until proven guilty. Additionally, fair trial guarantees entail that an individual must be “informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”, that he must “have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing”. It also guarantees that the individual has the right to attend his own hearing. Next, if a final decision was reached in a case, the case may not be judged upon again in the same form.

However, should there have been a miscarriage of justice, or should new facts arise that would exonerate the individual, the victim of the error shall receive compensation unless the error was attributable to him. While the language used in Article 14 could be seen to indicate that the procedural safeguards apply only to those with criminal charges against them, these provisions are considered basic principles of due process that apply to civil proceedings as well.

Visa vertigo: Australia and Canada’s new immigration blues

Foreigner’s Tribunals

Within the ongoing process of updating the National Register of Citizens (NRC), every individual in Assam is required to produce evidence regarding their citizenship (something we will elaborate on later in the series). In case of irregularities or prima facie contradictions, both the Assam police and the Border p are authorized to start a preliminary enquiry into the case. If this enquiry gives grounds for suspicion, the police can then file a case to one of over a hundred Foreigner’s Tribunals (FT) in Assam. FTs are established and operated under the Foreigner’s (Tribunal) Order of 1964. According to Article 2(1) of the Order, “the Central Government may by order, refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act […] to a Tribunal to be constituted for the purpose, for its opinion [sic.].” Importantly, the Order does not specify any rules of procedure, and FTs thus function largely based on ad hoc rules and judges’ personal preference.

Applications filed by the police to an FT must include concrete grounds for doubting the nationality of the person concerned. It is only at this point, after the application has been filed and the FT has agreed to launch a trial, that the accused is informed of the ongoing investigation and summoned to trial. The accused person, ideally, receives the summons to trial both digitally and as a physical copy, and is informed of the concrete grounds on which their nationality is doubted. In practice, however, the summons are often unsatisfactory.

The Caravan, for instance, reported the story of Kamala Begum, who in February 2012 was summoned to the FT in Barpeta, Assam to submit documents that would demonstrate that she is not a foreign national. However, the notice did not specify the grounds on which the authorities doubted her nationality, and merely demanded she present her evidence in front of the tribunal within the next three weeks.

In other cases, individuals have been denied access to their own hearing if they only received a digital summons. Instead, they were told that they required a physical notice of summons to be allowed to submit evidence in their favour. Hence, the accused often does not know what specifically is required, and understands little about what in fact awaits them, leading to an extreme power imbalance.

Legality and Independence

Article 14(1) of the ICCPR sets out the right to be tried by a competent, impartial and independent tribunal established by law. In order to universalize what makes a tribunal impartial and independent, the United Nations passed a resolution identifying common Basic Principles on the Independence of the Judiciary. Three paragraphs stand out specifically: First, the judiciary shall decide on cases brought to it “on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” Second, “tribunals that do not use the duly established procedures of the legal process shall not be created” and all individuals have the right to be tried by an ordinary organ of the judiciary. Third, it states that those appointed as judges and lawyers shall have been trained in legal practice and shall have “appropriate […] qualifications in law.”

Lack of Judicial Independence

As per the ICCPR, the judiciary is meant to decided cases “on the basis of facts and in accordance with the law, without any restrictions [such as] improper influences, inducements [or] pressures […]”. However, the procedures of Assam’s FTs have severe shortcomings in this regard. As mentioned above, there has been a significant increase in recent years in efforts to detain those who were previously declared foreigners, and an even more striking increase in the number of those declared foreigners in the first place. According the online portal Scroll, the 2016 elections in Assam have contributed to increased efforts by the state government to fulfil the 1985 Assam Accord, and thus also increased pressures on the judiciary and executive to detain illegal immigrants. This can be seen in the increase in the number of FTs established after2016.,Bhaskar Jyoti Mahanta, Assam’s additional Director General of the Border Police recently remarked: “We are supposed to be arresting everyone declared a foreigner. The court has chided us for not making arrests.” In 2017, the then Chief Minister of Assam, Sarbananda Sonowal, stated in an interview with the press that 19 members who worked at an FT had been fired in 2017 “on the grounds of unsatisfactory performance.” Sonowal elaborated that members are given ratings based on how well they fulfil monthly targets. Specifically, “if some member declares not just the accused as foreigner but manages to bring in the family members then their rating would be very high for that case […].” At that point, the final version of the NRC was due to be published on August 31 2019, and the state government was rushing to finalize names for the register. Although the deadline has been postponed repeatedly before, it is apparent that FTs are under extreme pressure to identify and declare foreigners. The independence of the tribunals cannot be guaranteed under such circumstances.

Prohibition of Tribunals That Do Not Use Established Legal Procedures

As per Article 4 of the Foreigner’s (Tribunal) Order, FTs function under the Code of Civil Procedure of 1908, and thus have powers comparable to that of civil courts. However, they are not really judicial bodies. This document thus alleges that the role of FTs in the process of determining foreigners constitutes a violation of Article 14(1) of the ICCPR as it has not, until recently, used duly established legal procedure. Importantly, the decisions issued by FTs are not referred to as binding anywhere in the Foreigner’s (Tribunal) Order, but merely as “opinions”. In fact, until a recent amendment in May 2019, the concept of res judicata, in practice, often remained absent from proceedings of FTs, leading to a situation where one person’s nationality could be questioned in different trials at different tribunals, or where a person who had already successfully defended their case before an FT was summoned again. Admittedly, the Gauhati High Court has held that res judicata should apply to Foreigner’s Tribunals, this order cannot be said to have been enforced until recently. The element of res judicata was properly introduced to FTs only after the amendment of May 2019. With this, India removed an issue that would have otherwise caused SAHRDC to allege a violation of Article 14(7) of the ICCPR. Nonetheless, decisions issued remain quasi-judicial, and do not serve as legal precedents for future cases.

Madras High Court upholds citizenship rights of Sri Lankan refugees

Untrained Lawyers

In order to increase efficiency, the state government had, in recent years, constructed more and more FTs. At the same time, there is a lack of skilled personnel that could be employed by the Tribunals. Hence, FTs have started employing lawyers with minimal experience or retired judges. This, again, stands in contradiction with the Basic Principles, specifically Paragraph 10, and thus leads to assume a violation of Article 14 of the ICCPR.

Hearings Not Public

The quasi-judicial nature of the FTs is not limited to the employment of untrained judges. As per Article 14(1) of the ICCPR, everyone “shall be entitled to a fair and public hearing […].” However, FTs do not permit open trials, and anyone seeking to attend a hearing must have a document permitting his entry into the premises. The hearings at the FTs thus lack transparency, leading to a situation in which potential procedural errors or mistakes on the merits cannot be traced easily.

Home, HRF Monthly, Human Rights Features

Video Conferencing: The fallout for Yasin Malik and the Indian criminal justice system

Ravi Nair / January 28, 2025 / Home, HRF Monthly, Human Rights Features

Logo

In Focus
J&K
Opinion
Culture
Features
Visuals
Videos
Library
Archives
Support Us

Comment Articles
Video Conferencing: The fallout for Yasin Malik and the Indian criminal justice system
Trials through video conferences defeat the principles of justice even as they reduce backlog; the remedy lies in investing in the judiciary.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
Ravi Nair
Ravi Nair
Published on:
25 Jan 2025, 12:09 am

On 20 January 2025, the Supreme Court directed officials from the High Courts of Jammu and Delhi to ensure that Yasin Malik is provided foolproof video conferencing technology to cross-examine witnesses present in a Jammu court from Tihar Jail in Delhi during a trial on the killing of four Air Force personnel in 1989.

The prosecution of Malik, the leader of the Jammu and Kashmir Liberation Front (JKLF), raises more questions on the issue of due process and fair trial than it answers. It would require a legal tome to detail the labyrinthine workings of the Indian state in the various cases. However, as the present one is seeking the death penalty for him and edges forward there is discomfiture with video conferencing in a trial with possible capital punishment consequences.

Malik did himself no favours when he refused legal representation at crucial junctures in his tedious legal travails.

The Indian Supreme Court has concluded that the right to life and liberty contained in Article 21 of the Indian Constitution includes the right to a speedy trial. Yet the Indian criminal justice system has long been buckling under a massive backlog of cases. Most people in custody in India have not been convicted of any crime but rather are either awaiting trial or are being tried. One alleged technological fix for the criminal trial backlog is video conferencing.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
Yasin Malik’s Trial: Battle Between Justice and Political Agendas
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
Reviving Obsolete Laws: A Step Backward for Jammu and Kashmir

Cost effective and expeditious

The rationale behind the use of video conferencing is that it saves time, manpower and money that would otherwise be spent on shuttling prisoners between the prison and the courtroom, and perhaps even more importantly, it allows more undertrial prisoners to be processed more quickly.

State governments spend over Rs. 3.6 billion annually on undertrials at the rate of Rs. 55 per head per day. A Mumbai prison official claims that the savings in fuel, vehicle maintenance and salaries of police escorts for undertrials in transit more than pays for the cost of setting up and maintaining video conferencing facilities.

The Mumbai video conferencing system has apparently allowed for the reassignment of 700 officers who had previously been escorting prisoners from jail to court and back. In Delhi, authorities have allegedly saved as much as 45 million rupees annually due to video conferencing. Even in smaller jails, such as the Yerwada jail in Pune, Maharashtra, the video link system has been credited with helping to clear undertrial backlog.

Supreme Court Sanctions Witness Testimony by Video Conference

In the 2003 Praful Desai case, the Supreme Court concluded that, with respect to witness testimony “in a criminal trial, evidence can be recorded by video conferencing” so long as certain safeguards are maintained.

As long as the accused, or at least his or her lawyer, is present on one end of the video conference when evidence is recorded, that evidence is deemed to be recorded in the “presence” of the accused as required by the Indian Code of Criminal Procedure or as in the new tongue-twisting name it goes by. The Court was of the opinion that there was no prejudice to the accused in having a witness deposed by video conference rather than in person.

It is claimed that the accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact, the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Courtroom.

They can observe his or her demeanor. The facility to playback would enable better observation of demeanor. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better.

The facility of playback would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus, no prejudice, of whatsoever nature, is caused to the accused, so it was held.

In a later case, Sakshi v. Union of India, involving victims of rape or sexual abuse, the Court upheld the use of video conferencing to obtain the testimony of the victim because the sight of the accused may fill the victim with fear and inhibit testimony.

Though neither Praful Desai nor Sakshi, dealt with undertrials appearing in court via video conferencing or with the circumstance where the witness in question was also the accused, both cases would no doubt be highly influential in deciding any challenges to the legality of video conferencing schemes.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
The Victimisation of Yasin Malik: The Role of Mushtaq Ahmed Zargar, aka Latram

Concerns regarding video conferencing

Appearances by undertrials via video conferencing may help reduce the troubling delay in their judicial proceedings. Video conferencing schemes may also save the government money. However, there are very real risks where police officers no longer have to physically produce a detainee before a magistrate and instead rely on technology.

Firstly, with due respect to the Court’s dicta in Praful Desai, a video image of an undertrial is no substitute for actually having a person in the courtroom. In particular, the Court’s contention that one can observe the “demeanor” of a person on video as well as, or even better than, in person is sheer speculation.

The human eye and ear, as well as other senses, can discern more information than a video camera and microphone, and there may well be cases where the totality of circumstances of the detainee’s demeanor may not be discernible via video conferencing.

Of particular concern is the fact that a camera only shows what appears before it—the court would not be able to see what is happening off-camera, such as intimidation or other undue influence by the police. These concerns are only magnified if the video conferencing hearing is not conducted “live” before a court, leaving open the possibility that a recording has been edited or otherwise altered before being presented.

Secondly, one of the benefits of the Indian Constitution’s Article 22(2) requirement that every arrestee must be produced before a magistrate within 24 hours of arrest is that arrestees are given a real physical and emotional respite from police custody. This physical production is vitally important given the already troubling high incidence of custodial deaths, torture, rape and other abuses in Indian detention facilities.

If the Article 22(2) production clause is diluted through video conferencing, a Magistrate may not be able to discern the physical condition of an undertrial and may overlook signs of custodial torture. What is more, the undertrial appearing by video conferencing will not be able to benefit from the moral and emotional support accruing from physical proximity to any friends and family in the courtroom.

Isolated and demoralized in conference room or a jail cell far away from an independent judicial officer, he or she may not be able to summon the courage to complain of real custodial abuses.

Thirdly, carrying on proceedings via video conferencing filmed with the undertrial already in prison may be prejudicial to the accused. Rather than appear in court in person in respectful attire, the accused may well be filmed in prison clothing, or even in his or her cell, images that could contribute to a bias in favour of a finding of guilt.

Lastly, as with any new process introduced into the courtroom, there are numerous logistical concerns that must be resolved in order to make sure a hearing via video conferencing is reasonably equivalent to a hearing in person.

In Praful Desai, the Court was dismissive of the potential for technical mishaps: “By now, science and technology has progressed enough to not worry about a video image/audio interruptions/distortion.” However, these are not trivial or far-fetched concerns, especially when the undertrial’s rights to life and liberty are at stake.

For example, the inauguration of the video conferencing system in Karnataka High Court was reportedly “not exactly a smooth launch as the audio facility failed to click, apparently due to an ISDN link failure.” Other important and legitimate logistical concerns have to do with the fairness of a trial conducted via videoconferencing and the ability of the accused to benefit from the right to counsel and to participate in his or her defense.
A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu
Oxford Union releases footage of Kashmir independence debate

The future of video conferencing in Indian Courts

Video conferencing usage in the Indian criminal justice system is growing rapidly. Despite concerns that the use of video conferencing could be unconstitutional, Indian courts have begun to embrace the use of video conferencing. India’s former Chief Justice K. G. Balakrishnan, had praised and recommended the use of video conferencing for remand of undertrials and for witness testimonies when necessary.

Even though video conferencing is undeniably reducing case backlog, it is no panacea for all that ails the Indian criminal justice system.

With only 14.7 judges for every million people, severe shortcomings in legal representation, and judicial and police corruption, the Indian criminal justice system is in desperate need of more prosaic investments in salaries, recruitment and training rather than relying primarily on video conferencing as a technological fix. If the savings from implementation of video conferencing arrangements are not illusory, perhaps the best way to spend them is to reinvest them in the judiciary.

In Praful Desai, the Supreme Court cautioned that video conferencing cannot be conducted indiscriminately but must respect rights of the accused. It is in this spirit that video conferencing hearings with undertrials must be conducted. The Yasin Malik case is not for experimentation in this regard.

Home, HRF Monthly, Human Rights Features

Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 1

Ravi Nair / January 27, 2025 / Home, HRF Monthly, Human Rights Features

Jan 27, 202511:00 AM

Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 1

This Republic Day, this article, the first in the series related to the illegal detention of foreigners in Assam, examines domestic and global laws allowing such unfettered powers to governments.

Ravi Nair

The writer is the executive director, South Asia Human Rights Documentation Centre.

Published on:

26 Jan 2025, 6:53 pm

Assam’s foreigner detention centres and the laws at play

ON January 23, 2025, the Supreme Court of India questioned the Assam government for detaining 270 foreigners at the Matia transit camp in the state without giving reasons. The Assam government had earlier changed the nomenclature of detention centres to transit camps, which serves as a great example of the usage of polysemantic language!

Affidavit of blunders

The Bench was hearing a plea concerning the deportation of persons declared foreigners and facilities at the detention centres in Assam.

The Supreme Court had given six weeks’ time to the state government on December 9, 2024 to file an affidavit and provide reasons for detaining 270 foreign nationals in the transit camp.

The court sought to know why detentions were continuing and whether there were any steps taken to initiate the process of deportation. The Assam government counsel stated the affidavit was confidential and should remain sealed, to which the Bench expressed their displeasure.

The Bench remarked, “This shows that the state does not want to come clean. Tell us what is confidential in the affidavit?”

The Assam government had earlier changed the nomenclature of detention centres to transit camps, which serves as a great example of the usage of polysemantic language!

The Assam government counsel answered that the affidavit contained the addresses of the detained foreigners, which could reach the media.

The Supreme Court Bench observed, “Assam counsel states that affidavit filed should be kept in [a] sealed envelope, as contents thereof are confidential. Though we are directing that it be kept in [a] sealed envelope, prima facie we disagree with the counsel that there is something confidential about the contents.”

…

Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 1Read More »