Tag: current affairs

SC Reserves Ruling On Privacy Being A Fundamental Right

To start with, the 9-Judge Bench of Supreme Court after hearing both sides reserved its verdict on the question whether privacy is a fundamental right under the Constitution or not. The marathon arguments that begin on July 19 lasted for six days. The judgment is likely to be pronounced before August 27, the date when the incumbent CJI JS Khehar demits office.
SC Reserves Ruling On Privacy Being A Fundamental Right

                                    There is no definite legal definition of privacy. It can be interpreted to mean various things like bodily integrity, protection from state surveillance, personal autonomy, dignity, confidentiality etc. Briefly stated, it has to be determined separately from case to case. It is not explicitly mentioned in Constitution but deemed to be included in Article 21.
                                 Now coming to international arena, Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the Internmational Covenant on Civil and Political Rights (ICCPR), 1966, which India signed And ratified on April 10, 1979 in totality legally protects persons against “arbitrary interference with one’s privacy, family, home, correspondence, honour and reputation”. Also, Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes the respect for private and family life, home and communications. Article 8 specifically stipulates protection of personal data and its collection for a specified legitimate purpose.
                                     Coming back to main subject, the 9-Judge Bench headed by Chief Justice of India JS Khehar included Justices DY Chandrachud, J Chelameswar, SK Kaul, SA Bobde, RF Nariman, AM Sapre, RK Agarwal and Abdul Nazeer reserved the order after petitioners’ counsels replied persuasively to the cogent arguments by the Centre and some States that privacy must be protected through statutory enactments and there was no need to elevate it to a fundamental right. Centre led by Attorney General KK Venugopal and a battery of senior lawyers appearing for BJP-ruled States who submitted that privacy need not be given a separate status of a fundamental right. Centre claimed that privacy was vague and amorphous and when a right is not defined, it cannot acquire status of a fundamental right.
                                              Be it noted, Venugopal argued that privacy is not a fundamental right and even if so assumed, it is a qualified right which must be subservient to the higher right of citizens to life. Maharashtra, Gujarat, Haryana followed suit by claiming that privacy is a facet of liberty and violation of right to privacy will necessarily be traced to infringement of any of the existing fundamental rights.
                                           Be it also noted, Venugopal also asserted that even if privacy is assumed to be a fundamental right under right to liberty of citizens, it must yield to the right to life of 270 million citizens who will receive the benefit of social welfare schemes with Aadhaar. He said, “A large section of the people would be deprived of their basic needs and rights if the claim of the petitioners to a fundamental right to privacy is accepted…Even otherwise, there can be no claim to a privacy right against identification for the purposes of public welfare and social schemes of the Government, and to plug leakages and corruption in the administration of such schemes.” He also said that, “In a developing country where millions of people are devoid of the basic necessities of life and do not even have shelter, food, clothing or jobs, and are forced to sleep on pavements even in  the height of winter, and perhaps, to die no claim to a right to privacy of the nature claimed in this case, a fundamental right would lie. Any such claim…would be based on an approach which is esoteric and elitist, in the light of allegation that Aadhaar would convert India into a totalitarian state.”
                                    To put things in perspective, Venugopal asserted that right to privacy could not be bundled as a single right in a developing country like India where a few persons claiming right to privacy override the fundamental rights of 60-70 million people who did not have access to basic amenities like food and shelter. He said: “We are a poor country. In Kalahandi, a mother is forced to sell her girl child for Rs 50,000 to Rs 60,000 who will eventually be taken to a brothel where her privacy and bodily integrity will be taken away.” Does this confer an unfettered licence on Centre to not grant right to privacy? Can poverty be a ground to deny right to privacy to citizens?
                                     Stretching his argument further, Venugopal contended that, “Under the MNREGA scheme, the government is giving money for the work done by people through Direct Benefit Transfer (DBT) into their bank accounts. The money now goes directly into their bank accounts after being linked to Aadhaar which they never got earlier. Even the World Bank has appreciated the effort and said that this model should be adopted by other countries.” The Bench then rightly said that, “You want to make the DBT reach the beneficiaries. It’s alright as that can be the legitimate interest of the government.” Justice Rohinton Fali Nariman was more direct in saying that, “Don’t forget the little man’s right to privacy. Everything is not Aadhaar-centric. We are going to consider all aspects and give you a comprehensive judgment for conceptual clarity of the nation.”
    
                               In this context, it would be pertinent to note that Justice RF Nariman who is a member of the Bench led by CJI JS Khehar rightly posed a question to the Additional Solicitor General Tushar Mehta who opposed privacy being recognized as a fundamental right. Justice RF Nariman asked: “A one whole chapter in the Aadhaar Act deals with privacy interest. Is this not another legitimate recognition of it (privacy) being a fundamental right?” Earlier Justice SA Bobde wondered whether the Aadhaar Act of 2016 itself had any provisions to protect privacy. To this, Venugopal then pointed to Section 28 of the statute dealing with “security and confidentiality of information”. To this, Justice Bobde again shot back asking “So does this mean you do recognize privacy as a fundamental right?” The palpable answer is yes.    
                                      Also, I would like to point  out here that over the course of the various hearings in this landmark case, many thought provoking questions have been posed by the Supreme Court itself and they are as follows: What are the specific rights that come under the right to privacy? Does the right include family, sexual orientation, gender identity, surveillance, property, data protections, bodily integrity etc? What are the limitations that a state can pose on the right? It still remains to be seen as to what exactly the Supreme Court finally rules on this as the decision has been reserved. But one thing is clear: It is not so easy to answer all these with precision!        
                                                                                                  
                                             Challenging the stand of the Centre and States, senior advocate and former Law Minister Kapil Sibal appearing for Opposition-ruled States of West Bengal, Karnataka, Punjab and Union Territory of Chandigarh said that in this day and age the need for privacy is all the more essential considering the fact how technological advancement can allow State and non-State actors to pervade into private space of individuals. He said that, “Privacy cannot be an absolute right. But it is a Fundamental Right. This court needs to strike a balance. In the light of technological development, the court should take a fresh look on the Right to Privacy and its contours in the modern day.” He was supported by senior advocates Gopal Subramanium, Arvind Datar, Shyam Divan and Anand Grover who urged the Court to lay down privacy to be at the core of the Constitutionally recognized principles of liberty and dignity, and hence a fundamental right. No doubt, they argued exceptionally well to push forward their point.
                                  Truly speaking, the Bench then did ask the petitioners that if privacy essentially was liberty, then why distinguish it as a fundamental right. The Bench understood privacy to fall into three zones – intimate, private and public, and said that Government control would increase from the first to the last zone. Senior counsel Gopal Sankaranarayanan who appeared for the think tank Centre for Civil Society raised the point about apps. He said that, “When we use an app, it asks us whether it can access the contact list, pictures etc and we invariably say yes. Thus, we are waiving our privacy. But if we raise privacy to the status of a fundamental right, it cannot be waived”. A valid point.
                                             It may be recalled here that an eight-Judge Bench comprising the then Chief Justice Mehar Chand Mahajan and Justices B Jagannadhadas, Ghulam Hasan, Natwarlal H Bhagwati, TL Venkatarama Aiyyar, BK Mukherjea, Sundhi Ranjan Das and Vivian Bose in MP Sharma & Others v Satish Chandra, District Magistrate, Delhi & Others [1954 SCR 1077] dated March 15, 1954, it was held that, “A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.” Privacy was not recognized as a fundamental right.
                            Similarly in Kharak Singh v The State of UP & Others [1964 1 SCR 332] dated December 18, 1962, the writ petition was adjudicated by a six-Judge Bench comprising the then Chief Justice Bhuvaneshwar P Sinha and Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, JC Shah and JR Mudholkar , the Bench struck down Clause (b) – domiciliary visits at night – of Regulation 236, but upheld the rest. The Bench also held that, “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights).”
                                         In this case the petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”. This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorised six measures of “surveillance”: (a) secret picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; (d) reporting by constables and chaukidars of movements and absence from home; (e) verification of movements and absences by means of inquiry slips; and (f) collection and record on a history sheet of all information bearing on conduct.
                                            In his writ petition, Kharak Singh had challenged the constitutional validity of Chapter XX, and the powers conferred upon police officials thereunder on the ground that they violated his fundamental rights under Article 19(1)(d) – right to freedom of movement – and Article 21 – protection of life and personal liberty. In this case also privacy was not declared to be a fundamental right.   
                                                            But in a later case a three Judge Bench verdict in 1975 in Gobind v State of Madhya Pradesh [(1975) 2 SCC 148] it was held that right to privacy was a fundamental right and this was followed by Supreme Court Benches over the last 40 years! In PUCL v Union of India, [(1997) 1 SCC 301], it was held by Apex Court that Courts can proceed on a case by case basis to determine which rights come under the aspects of privacy and which don’t. Justice J Chelameswar of Supreme Court said: “In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy…There is a battery of judgments saying privacy is a fundamental right. We have to give serious thought to this question.”                          
                                          Truth be told, Justice DY Chandrachud cautioned that “those adjudicating on privacy must ensure that our quest for innovation is not stifled”. Intervening during the arguments by senior counsel Rakesh Dwivedi, who appeared for the Gujarat government, Justice Chandrachud aptly said that, “We are a knowledge-based society and privacy cannot be raised to a level where we stifle innovation. Innovation in India is happening in services…data.” He also said that for understanding individual privacy, it would be helpful to envisage three zones – intimate, private and public. In the intimate zone, which encompasses family, personal relationships etc, state interference will be minimal. The second was the private zone where an individual shares personal data with others, like on the social media or for using a service.”
                             Elaborating further, it must be pointed out that Justice DY Chandrachud set out the tentative thought process and drew support from Justice RF Nariman. He said, “The first zone could be the most intimate zone of privacy concerning marriage, sexuality, relations with family and the law should frown upon any intrusion. The state could still intrude into this intimate zone in extraordinary circumstances provided it met stringent norms.”
                             The Bench also elucidated further that, “The second zone would be the private zone, which involved parting of personal data by use of credit card, social networking platforms, income tax declarations. In this sphere, sharing of personal data by an individual will be used only for the purpose for which it is shared by an individual. The third is the public zone where privacy protection requires minimal regulations. Here, the personal data shared will not mean the right to privacy is surrendered. The individual will retain his privacy to body and mind”. This clearly implies that the right to privacy may not be unfettered.   
                                    Needless to say, Justice Chandrachud also sought to make it clear that, “The data so submitted must be used only for the purpose for which it is given”. He added that, “When a person goes from zone one to zone three, the privacy right remains. When it is balanced against state interests, that state interests will have to satisfy the tests of that zone.” There can be no denying it.
                                        As it turned out, Dwivedi said his point was that everything depended on circumstances and hence it would be sufficient if tested on a case-by-case basis, instead of making it a fundamental right. He also said the discussions on privacy will also have to take note of large corporations outside India “which are more powerful that the Indian state” and controlling the information flow. He also wanted to know that, “How does one control Google which has servers outside India?”
                                        Let me bring out here that to this Justice DY Chandrachud answered that, “Yes, you are right that privacy as a practical notion has broken down to a large extent. But let us not use that argument to defeat privacy as a Constitutional notion.” The Bench also realized the difficulty in straitjacket interpretation of constitutional status of right to privacy, it being linked to liberty which has visible footprints on several fundamental rights guaranteed in Part-III of the Constitution.
                                  Let me also bring out here that Justice Chandrachud said, “We are dealing with an issue that has an impact on what constituted India as a powerhouse for growth of service sector. The analysis of choices and personal preferences of 1.4 billion and the analysis of this generates demand in the service sector. In defining the right to privacy, we must keep in mind this critical sector which depends on personal data of Indians using a particular service.” There is a great risk of personal information falling into the hands of private players and service providers. On this, Justice Chandrachud rightly said: “I don’t want the state to pass on my personal information to some 2,000 service provider who will send me Whatsapp message offering cosmetics and air conditioners…That is our area of concern. Personal details turn into vital commercial information for private service providers.” As both the government and service providers collect personal data, the chances of data leakage become increasingly more!
                                     It also cannot be missed out here that when the Bench was emphasizing on the sacrosanct tag attached to the right to privacy in the US Constitution, Rakesh Dwivedi while arguing for Gujarat government said that, “If right to privacy was so sanctified in the US Constitution, how could US forces invade privacy of a house (in Pakistan) to eliminate Osama bin Laden? Privacy is a fluid term incapable of being defined, for it changes contours depending on situations.”
                                Not stopping here, Dwivedi also asked that, “If privacy is intrinsic to many fundamental rights, where is the necessity of defining it as a standalone fundamental right? Can the SC fathom all hues of privacy to present it as a homogeneous right capable of standing alone and aloof from other fundamental rights.” It remains to be seen as to what the Apex Court finally rules on this. All factors will have to be taken into account and Apex Court will certainly do this and deliver a very landmark decision that will be always read very curiously.
                                   Be it also noted, senior advocate CA Sundaram appearing for the Maharashtra government while asserting that privacy would always take a back seat to securing basic needs of people quipped: “What is better, two square meals or right to privacy?” Pat came the reply by Bench that people’s economic rights could never be a ground to undermine fundamental rights. Justice DY Chandrachud rightly asked: “Does it mean the cherished constitutional rights are subservient to certain economic developments? Can two square meals be promised in return for barring people from protesting, forming association or giving up other fundamental rights? This can never be. We must guard against this tendency.” Absolutely right!
                                       Justice J Chelameswar also said on the same lines as that of Justice DY Chandrachud while observing that, “It is a very cruel choice one can give to citizens – two square meals or right to privacy.” Justice RF Nariman also questioned that, “In the era when personal liberty and fundamental rights are being given a wider meaning, how can you argue for contracting the width of fundamental rights?” Sundaram sought to repeatedly clarify that he was not against right to privacy as a statutory right. He said that, “Privacy is, in fact, protected by several statutes in several forms, be it Indian Post Office Act, Aadhaar Act, Income Tax Act or others. I am all for statutory protection to privacy. But, giving it a homogeneous shape as right to privacy and introducing as a standalone fundamental right would not be proper. It was one thing for the Supreme Court to interpret an existing fundamental right to rule that right to privacy was part of it, but quite another to rule it as a standalone fundamental right. The Supreme Court must remember that interpretational route to specify a right is far apart from introducing right to privacy in the Constitution despite the Constitution-makers specifically considering, debating and then rejecting it. Parliament alone can consider, debate and elevate a common law right as fundamental right in the Constitution not the Supreme Court.”
                                     When the Bench pointed out that India had an obligation to respect the right to privacy as it had signed the UN declaration on Human rights, Sundaram said India’s obligation to respect international treaty mandates was under Article 61 of Directive Principles of the Constitution, which was not an enforceable right.” Appearing for Unique Identification Authority of India (UIDAI), Additional Solicitor General Tushar Mehta said the petitioners apprehension that personal data collected for Aadhaar would be used by the government to track activities of citizens is unfounded. He argued that, “Aadhaar Act is an exemplary piece of legislation that protects personal data zealously and punishes data leakage. The personal data protection regime is so stringent that even if the government attempts to know where Aadhaar card has been used, it would be able to get only general data which would not pinpoint the location of the citizen. If a person opens bank account, the government would come to know which bank the citizen has opened the account but not the branch location.”                    
                                          All said and done, Government has every right to promote Digital India but it should not come at cost of citizens privacy being fully breached! Government must come up with a strong law protecting data privacy so that citizens don’t always live in the shadow of fear of their privacy being breached! In this context, Justice DY Chandrachud rightly pointed out that, “There is no denying that it [Aadhaar] is a social welfare scheme, but you [the government] must first concede that the state is obliged to put a robust personal data protection mechanism in place. There may be a billion Aadhaar card holders. I don’t want the state to pass on my personal information to some 2,000 service providers who will send me Whatsapp messages offering cosmetics and air conditioners… That is our area of concern. Personal details turn into vital commercial information for service providers. Have you got a robust protection mechanism?”  Also, it has to be borne in mind that privacy is not just about Aadhaar or data protection alone, it’s about allowing people to make free choices like what to eat, what to drink, whom to marry, right not to be disturbed of sleep by loud speakers etc and not violating their right not to be coerced what they don’t like. I have not even an iota of doubt that the Supreme Court will soon pronounce the right and a very landmark judgment on this so important issue concerning us all which it has reserved now to be decided later!  

SC Very Rightly Gives Bail To Lt Col Shrikant Purohit

It is the worst travesty of justice that a serving Army officer – Lt Colonel Shrikant Purohit with impeccable track record of more than 14 years before he was wrongly framed in 2008 by those as a “terrorist” who didn’t like his going after terrorists who were planning to carry out the Mumbai terror attack as we saw also on 26/11! For being an upright officer what he got in reward was more than 9 years in jail and custodial torture to the extent that we can’t even dream of and yet even till now charges have not been framed against him! This is because there was no “hard evidence” against him and ATS with connivance of a senior Army officer spared no opportunity to implicate him falsely!
SC Very Rightly Gives Bail To Lt Col Shrikant Purohit
                                            I am sorry to say but his plight is worse than even Kulbhushan Jadhav who too was wrongly implicated as a terrorist but this happened in Pakistan and not in India which is his own country!  Not one or two or seven but seventy six Army officers who had served with him earlier testified to his being an upright and committed officer but India trusted Mumbai ATS who are notorious for wrongly implicating innocents and here they didn’t spare even an honest and committed Army officer like Lt Colonel Shrikant Purohit! What has happened with Lt Colonel Purohit should not happen even with a terrorist!
                                          Even Nasik Police Chief whose jurisdiction extended to Malegaon had commended Lt Col Purohit for actively working to expose terrorists funded directly from Pakistan! Can all this be dismissed lightly? NIA too it must be said with dismay has not crowned itself with glory by keeping quiet for 9 years which is a very long time!
                                          Is it a coincidence that Mumbai terror attack of 26/11 happened just months after his arrest? Why such a senior Army officer was treated so shabbily? Why was he wrongly framed as a terrorist without any valid reason?
                                       More intriguingly, why when he was working to expose those who supported terrorism locally was he himself arrested, tortured and branded a terrorist and for 9 years not a single evidence was produced before any court? All this must be investigated impartially and truth must come out! The bold Army officer who was the only one to help Mumbai ATS in falsely implicating Lt Colonel Purohit and get him arrested breaking all norms and who has not produced a single shred of evidence in any court even after 9 years must be taken to task and not allowed to go scot free!
                                                  Let me be direct in asking: Who will compensate him for the 9 years that he, his wife and his children have suffered endlessly? There can be no compensation that can compensate for the terrible sufferings he and his family had to undergo! His wife and children had to hear “She is a wife of terrorist and they are children of terrorist”!
                                   I am sorry to say but even Army has not held his hand when he needed it most to which he was fully entitled also thus letting him down most unfairly and this is the worst tragedy! However, I am extremely happy to note that one of the most reputed and trustworthy lawyer of our country who is also a former Solicitor General – Harish Salve who recently took up Kulbhushan Jadhav case at ICJ in Hague and defended it successfully has taken up his case and here too has got him bail!
                                             I had not even an iota of doubt in my mind that finally Lt Col Shrikant Purohit would get bail from the highest court of our nation even though the lower courts disappointed him. After being in jail for nearly nine years Supreme Court ultimately decided to release Lt Colonel Shrikant Prasad Purohit from jail on bail in the 2008 Malegaon blast case in which seven people had died and about 100 injured. There were many things that ultimately worked in Lt Col Purohit’s favour.
                                               Writer Madhu Kishwar tweeted “Thankfully Col Purohit finally got bail. His imprisonment is one of the most dangerous games played by the Congress to protect Pakistan backed terror groups”. After getting bail, Lt Col Purohit merely said that, “I do not want to say anything now about politics. I would not like to comment anything on the investigation as the matter is sub judice. All I want to say is that I remain a simple soldier who loves his uniform and the Indian Army. I thank the Army for standing by me.”
                                    We all must ask: Why for nearly nine years a serving army officer of the armed forces and that too of the intelligence wing was made to suffer all sorts of humiliation along with jail and yet not even chargesheet has been filed against him leave alone trial being started! Is this the way a nation treats its officers? What message is being sent to future aspirants who want to join the Indian Army?
                                         It must be asked: If there was an open and shut case against him as those who arrested him projected then why after nine years they have not been able to even file a  chargesheet and why they have not produced any evidence before the court? How can any person leave alone army officer be made to wear the tag of a terrorist without giving him any opportunity to defend himself in last nine years? Why the Mumbai ATS did not frame charges for 9 years if they had evidence to prove that Lt Colonel Purohit is a terrorist? Why RDX was planted in his house as NIA alleged?
                                           It must also be asked: How long will police keep the nation waiting? Who will be responsible if it is found that there is no evidence against Purohit and others? Why a UN report which mentioned that a Pakistan based terror group was responsible for the terror attack yet Purohit who as intelligence officer was providing information on terrorist was himself implicated instead? Why no evidence has been produced against him?
                          May I ask here: Why even earlier a bench of Supreme Court comprising of Justices FMI Kalifulla and Abhay Manohar Sapre said that, “There was no concrete evidence to show their involvement in any other criminal case and the trial court should decide their bail plea on merit, preferably within one month”? Was it just for fun that two Judges and that too serving judges of our highest court – Supreme Court are saying that there was no concrete evidence to show their involvement in any other criminal case? Why Supreme Court said there was considerable doubt about the involvement of those charged under the MCOCA?
                                        May I also ask here: Why trial court didn’t decide their bail plea nearly nine years back and why Lt Col Purohit was made to suffer along with Sadhvi Pragya Thakur in jail where their health deteriorated thus grossly violating their legal rights? What was the compelling circumstance that police decided to keep a serving army officer of the rank of Lt Colonel in jail for nearly nine years without producing any evidence against him in any court? Why even the Court of Inquiry (CoI) conducted by Army found Lt Col Purohit not guilty as Harish Salve rightly pointed out? This itself proves that there is more to it than meets the eye and his arrest along with others was done as part of a grand political conspiracy to keep the ruling elite happy and to be on their right side!             
                                       It also must be asked: Why for nearly nine years Lt Colonel Purohit was not shown even the army documents which he had a right to see? Why it is that only  after the ex Defence Minister Manohar Parrikar  himself personally intervened to make it clear that the main accused in the Malegaon and Samjhauta blasts, Lt Col Prasad Purohit, would be given access to documents he had sought to enable him to prove his innocence? Why was he denied even his basic legal right for such a long time? Who were those army officers who didn’t want that he should be shown any documents and why? They must explain!
                                         Why RSN Singh a retired officer of RAW whom again we keep listening in various news channels talking always about our national interests writes in his cover story titled “Col Purohit : A Victim Of Hindu Terror Industry” published in Uday India magazine dated March 22, 2014 that, “It is a travesty to paint Purohit as the Indian Osama Bin Laden. Going by the selective and flip-flop leaks by the Anti Terrorist Squad (ATS) of Maharashtra, and the manner in which the media is lapping it up, it appears that there is a concerted bid to make an ‘Osama bin Laden’ out of Lt Col Purohit, and prove that Sadhvi Pragya and her accomplices are the new ‘Hindu jihadis’. The credulity of the general public is being stretched on various scores. Firstly, the speed at which fresh revelations are being disseminated by the ATS, is in complete disregard to professional propriety. Secondly, the unprecedented number of narco tests the accused are being subjected to. Thirdly, there is a total blankout with regard to the version of the accused. Fourthly, with every passing day, the network is being enlarged; as if to suggest that the entire country is being consumed by ‘Hindu terrorism’, and has pan-Indian dimension. Fifthly, if intercepts of some of the accused were available prior to the blasts, why were no pre-emptive measures taken? Sixthly, no army representative has been included in the interrogation team. Seventhly, the most intriguing aspect is the timing of the investigations—on the eve of elections.”
                                                  Garima Aggarwal in her enlightening editorial titled “Colonel Purohit’s Case – Did UPA  Manufacture Political Conspiracy Of Hindu Terror” dated August 24, 2017 in Hindu Post rightly points out that, “The history of this case reflects how an accused can actually be tortured crossing all boundaries of Human Rights and can end up serving more jail term than actually prescribed by law as punishment for a certain crime (if proven). There are more than a dozen accused in this case, and it can be fairly concluded that most others must have been tortured too. Another major accused, Sadhvi Pragya has already been given bail. Sadhvi Pragya had disclosed parts of her torture story mentioning the cruelties that she went through that have rendered her spine permanently damaged. Colonel Purohit had an exemplary performance record. He was a top notch intelligence officer, and this is clear from this report. He had created an effective intelligence network and was probably gathering the kind of intelligence that was beyond the expectations of various in the army and politics. It may never be known but it can be logically speculated that it may have been any of his intelligence inputs, either regarding the fake currency racket or the extent to which Dawood and ISI had penetrated our systems / organizations, or Kashmiri terrorists travelling in the cars of politicians, which may have led to his incarceration in this case. The way it all began is in itself a story of great injustice and the detention was actually illegal to begin with. Not only his movement order  paper was hidden from him, the first violence in the custody was carried out by none other than a fellow military officer, Colonel Shrivastav. Colonel Purohit was told that he was to go to Delhi but later he was diverted to Mumbai and wasn’t even allowed to inform a single member of his family. In fact, Colonel Purohit filed RTI application to understand the rules and procedures of how and who can modify the travel orders. But the information that came about was not satisfying going by the old reports. The fact that he was a serving officer at that time was not paid heed to, he was bluffed and taken to Mumbai and what followed there was a series of severe torture. Madhu Kishwar, founder of Manushi.in had interviewed Col Purohit’s wife, who had narrated the kind of torture he went through. From 29th Oct 2008 to 4th Nov 2008, Col Purohit was illegally detained and severely tortured. The pattern was repeating itself, Sadhvi Pragya too had said that she was illegally detained from 10th Oct 2008 to 23rd Oct 2008 and was severely tortured. This detailed report carries various statements, letters and complaints by Colonel Purohit himself, here is an extract of how he himself explains the start of the torture :
“I was interrogated by this combined team for almost two hours on the night of 29/30 Oct 2008. Till then all the members of interrogating team was talking to me with a respect deserved by an army officer. After initial two hours of questioning, it was Colonel Shrivastav (Director Military Intelligence – 9) who suddenly sprung from his chair and initiated a brutal physical assault on me. He slapped me on my face at will and continued slapping me and started kicking me all over the body with his shoes on. Colonel R K Shrivastav then started pulling my hair on head and chest as well. At this stage the other interrogators, including the Indian Police Service cadre officers of Anti Terrorism Squad and Intelligence Bureau officers, joined him in physically assaulting me. My face was totally swollen then. Colonel R K Shrivastav’s actions of physical assault on me made the Police and Intelligence Bureau officers shed their inhibition of carrying out physical torture of mine, a serving army officer. Colonel R K Shrivastav then stood on my feet and legs as I was tied to a chair and inhumanly started twisting my nipples and my private parts (genitals) with all his strength. Colonel Shrivastav once again started hitting me on my face and even boxing me with tight fists on my back. Colonel Shrivastav was holding and pulling my hair on head while the other Indian Police Service officers tortured me. I was in absolute state of shock and totally shattered by this physical assault carried out by Colonel R K Shrivastav, (Director Military Intelligence – 9). This nightmare of physical assaults hitting, slapping, twisting of private parts, tying me to a chair, standing on my legs, feet coupled with dirtiest possible abuses on my mother, wife and sister continued unabated. After four days of continuous beating and torture, on 02 Nov 2008, Colonel Shrivastav ordered the Police to handcuff me. This was breach of privilege for a serving army officer and it was not police officers but insistence of Col Shrivastav which caused the same. I was handcuffed and remained in that condition till 04 Nov 2008. The sequence of beating and brutal torture was intermittently on with Colonel Shrivastav abusing me about my mother, wife and sister. He kept on threatening me that if I don’t own up my involvement in the Malegaon Bomb Blast, he (Colonel Shrivastav) would strip my mother, wife and sister and make them parade naked in front of me. Police officially arrested me on 05 Nov 2008.” After this, the case shifted from one investigation agency to another, without a final charge sheet and trial never began for more than 8 long years. In fact, after this illegal detention, when Col Purohit was checked in military hospital, the reports mentioned permanent damage to his knees, his knee reconstruction surgery had fallen apart because of torture, parts of his hands had lost sensation because of nerve damage. One more essential link in this case, Sudhakar Chaturvedi, still awaits bail. He was a registered intelligence operator which Col Purohit had cultivated. He was accused of keeping RDX at his home which was allegedly supplied by Purohit. I have had various discussions with the lawyer of Sudhakar Chaturvedi over last 2 years, needless to say that he was also tortured like all other accused. However, not only this detailed report on Manushi.in explains how other army personnel caught the planting of RDX at Sudhakar’s house, there are other witnesses also who later claimed that they were coerced to give statements that Maharashtra ATS sought. There were very serious allegations raised by Col Purohit’s wife, Aparna Purohit that she was also severely humiliated and threatened of dire consequences by Hemant Karkare and Col Shrivastav to give ‘required’ statements. Another serious allegation was that Col Purohit was pressurized into making a confessional video (probably passed on as narco tests going by old news reports, it seems mostly lead by Tehelka & Times Now then, a lot of such news pages have gone into archives / proxy servers now), which was shared with media without first testifying the confession in front of a magistrate. Most of the idea of ‘Hindutva Terror’ and Col Purohit being guilty was based on Swami Aseemanand’s ‘confession’, from which he retracted more than once later. Below is the short jaw-dropping interview of Colonel Purohit by NewsX, where he says ‘torture is a sober word for what he was put through’, and throws light on various other aspects of the case. No wonder his knee reconstruction surgery ( done before his arrest in 2008) fell apart, he says that he was suspended from horizontal bars and stretched on opposite sides  : Two major things that glaringly point out that this narrative of ‘Hindu Terror’ may have a political conspiracy manufactured by UPA, under Sonia Gandhi in center and Sharad Pawar in state of Maharashtra are, the illegal detention and severe torture.  It must be noted that several Muslim accused in Malegaon Blasts 2006 were acquitted in April 2016 because both the NIA and Court said that there was no suficient evidence to implicate them. They spent 10 years in jail, but nobody was illegally detained and went missing for days, nor were they tortured like Colonel Purohit, Sadhvi Pragya and others. Who can forget that Sharad Pawar openly took ‘credit’ for coining ‘Hindu Terror’ in a political speech in 2009!”  
                                            Here it must be said:  What Lt Col Purohit’s family is bearing and what he himself is bearing that only they themselves can understand best! Punish them with the strictest punishment if they are terrorists but facts on ground indicate otherwise! I have not seen one Army Officer speaking against Lt Col Purohit till now openly in any news channel not even that Army Officer who it is alleged was hands-in-glove with Mumbai ATS in falsely implicating him because of the personal grudge that he held against him! Why this stony, deafening silence? It is because there is no strong case against him!
                                       During the hearing, senior advocate and former Solicitor General Harish Salve who just some months back had successfully defended Kulbhushan Jadhav in ICJ said that he has been in jail for the past nine years but charges have still not been framed against him! He said the MCOCA charge has already been dropped against him and therefore he is entitled to get interim bail! Our whole judicial system should be ashamed that a serving Army Officer is designated a terrorist by Mumbai ATS but for last nine years no charges have been framed against him! This itself is the strongest testimony to prove that how strong case Mumbai ATS has against Lt Col Purohit!
                                To put things in perspective, while seeking bail in the 2008 Malegaon blasts case, Lt Col Shrikant Purohit made it clear to the Supreme Court that he was caught in a “political crossfire” and was falsely implicated. But the NIA while opposing his plea accused him of running Abhinav Bharat which NIA alleged is an outfit promoting fundamentalism and unlawful activities. One is tempted to ask here: Is Abhinav Bharat an unlawful organisation? 
                                Lt Col Purohit’s senior counsel Harish Salve contended that the officer attended meetings of Abhinav Bharat as an “Army mole” and was not involved in terrorist activities. He rightly said that there were “big holes” in the probe which is why another accused Pragya Singh Thakur was granted bail. Harish Salve made a strong case for bail to be granted to Lt Col Purohit by pointing out that, “My client has been in jail for nine years but charges have not been framed. Since 2001, he has got numerous recommendations (as intelligence officer). I am not asking for discharge but give interim bail after nine years of incarceration till framing of charges in the case.”  He also pointed out that Purohit had informed seniors about inputs that he received from the meetings of Abhinav Bharat and there were infirmities in the probe conducted by the Maharashtra ATS and NIA. Why was all this overlooked?  
                                       As it turned out, the Supreme Court also while granting bail noted that there were glaring contradictions between the positions of Maharashtra’s Anti Terrorism Squad and the National Investigating Agency (NIA) about his role. A Bench of Justices RK Agrawal and AM Sapre were unanimous in concluding that, “Keeping in view the fact that NIA’s supplementary chargesheet is at variance with the chargesheet filed by ATS and that the trial is likely to take a long time and Purohit has been in prison for about eight years and eight months, we are of the considered view that Purohit has made out a prima facie case for release on bail and we deem it appropriate to enlarge him on bail.”    
                                   The Bench also said that, “At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or denial (of bail) is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.” No one can dispute this!
                                       The Bench also pointed out that, “Liberty of a citizen is undoubtedly important, but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case.”
                                       Be it noted, the Supreme Court also ordered him to appear before the trial court as and when summoned, make himself available for investigation by the NIA, not influence witnesses directly or indirectly, surrender his passport and not leave the country without the trial court’s prior permission. The Court asked Purohit to furnish a personal security of Rs 1 lakh, two additional sureties of the same amount. But the Apex Court also clarified that bail to Purohit would not automatically entitle other accused to get bail and said their applications would be decided on merit.
                                    Salve said that the NIA chargesheet had virtually absolved his client and the High Court of Bombay had erred in holding that the Court of Inquiry (COI) documents could not be relied upon at the stage of bail. Why could the COI documents not be relied upon? COI was conducted properly as per rules and regulations and no rule was broken anywhere in conducting it!
     
                                         Not stopping here, Harish Salve said on behalf of his client that, “The allegation against me is that I supplied explosive material on the conspiracy hatched by Sadhvi Pragya Thakur. Now if she is enlarged on bail and given a clean chit by the NIA, then the link between me and her is snapped.” Bombay High Court on April 25 had given bail to Sadhvi Pragya who was the main accused and who headed Abhinav Bharat but rejected his plea even though he was just an “Army Mole”! Why this glaring disparity?
                                          While arguing brilliantly, Harish Salve said the Maharashtra ATS mentioned in its charge sheet that he had attended the meetings of Abhinav Bharat. Going forward, Salve asked: “Yes, I attended certain meetings, but as a military mole. I was doing my duty. The court says it will look into the ATS chargesheet at the stage of trial and refuses interim bail even as charges are not framed against me. What kind of criminal justice system is this?” Very rightly said! Sadhvi Pragya Singh Thakur who was also a co-accused and headed meetings of Abhinav Bharat was granted bail by Bombay High Court but Lt Colonel Purohit who attended meeting as “Army Mole” was refused bail even after nine years! This is really atrocious!
                                     Why bail to a Sadhvi but not to a serving Army officer with more than 14 years of distinguished service who even got Army Chief’s commendation card for the bravery he demonstrated in various military intelligence operations in Kashmir? Even Nasik Police Commissioner – Himanshu in whose jurisdiction Malegaon comes had commended and lauded Lt Col Purohit for penetrating into terrorist outfits cadre and providing him valuable inputs that helped him in checking terror outfits carrying out more terror attacks! Salve also rightly pointed out that, “My client has got himself caught in political crossfire. He has been in jail for nine years but still he is serving in the Indian Army. Since 2001, he has got numerous recommendations for infiltration. From an unsung hero, he has been now called an incarcerated hero.” Most shameful!
                                   Supreme Court while granting bail also took into account what was alleged about how he was tortured. It was alleged by his wife Aparna that, “He was subjected to gruesome third-degree torture. He was beaten up and hung upside down. His feet were tied and pulled apart. All this was done to get a confession out of him. When he was produced in court he could not even walk properly. Later [on our request to the court] he was taken to the naval hospital in Colaba and a complete examination was done. The doctors said two nerves in his hand were severed. When he was serving in Jammu and Kashmir, he had suffered an injury so his knee had to be reconstructed. Those ligaments were torn again.”
                                       Think logically: If he was a terrorist would he still be serving in the Indian Army? Would he not have been dismissed? Did he not pass all information about activities of Abhinav Bharat group who allegedly masterminded Malegaon bomb blast on September 29, 2008 in which seven people were killed and about 100 injured when a bomb strapped to a motorcycle exploded to his seniors? Have his seniors not testified about it? Still why he is being made the scapegoat? Why was he arrested at the first place and that too not according to proper rules?
                                       Why he was kept in illegal detention? Why was he blindfolded and taken to unknown destination and tortured mercilessly? Why was he not informed of being arrested for a terror offence and why was he deceived? Why was he brutally tortured? Why initially he was arrested for something else? Why was he taken to Khandala and brutally tortured after making him naked for many days not sparing even his penis and why that senior Army officer at whose instruction all this happened could not give any convincing reply for all this? Why was that senior Army officer not taken to task?
                                      Why 76 Army officers deposed in his favour and hailed him as an outstanding officer totally committed to his job? Why even Maj Gaurav Arya, Maj Gen GD Bakshi, Col RSN Singh of RAW Intelligence Branch and others too spoke strongly in his favour and pointed to deep conspiracy to implicate him for the role he was playing in exposing the corrupt nexus between politicians and terror outfits based in Pakistan which includes Dawood group? Why there are no material witnesses against Lt Col Purohit? Why three such witnesses who earlier claimed to the Maharashtra Anti-Terrorism Squad (ATS) that Purohit was integral to the conspiracy which includes one Captain Joshi backtracked when confronted by NIA and even alleged pressure and torture by ATS? Why Mumbai ATS kept on torturing him who is a serving senior rank Army officer for 9 years yet could not even file chargesheet against him?
                                     Why the report of the Court of Inquiry by the Ministry of Defence which is before the trial court now also confirming that Lt Col Purohit had briefed his superiors in the Army about details of the three Abhinav Bharat meetings that he had attended in January 2008 as he himself alleged? Why it was overlooked that Lt Col Purohit would never do so if he was really indulging in a terror conspiracy? Why NIA failed to prove that the two men who planted the bomb in September 2008 and are absconding till now – Ramji Kalsangre and Sandeep Dange were part of any meetings attended by Purohit or had any telephonic contact with him ever?
                                        Why ATS alleged that Purohit supplied RDX for blasts but NIA report showed that ATS officer planted RDX in house of one of the accused? Why that ATS officer who planted RDX has not been arrested and interrogated seriously? Does this not smell of deep conspiracy that ATS officer is himself planting RDX and ATS was trying its level best to falsely implicate him ?
                                           Most important of all, why charges have not been framed against Lt Col Purohit till now after 9 long years? Why Mumbai ATS and investigating agencies slept for 9 long years if there was an open and shut case against him? Why he with more than 14 years of distinguished service was tortured worse than a terrorist and beaten black and blue and yet could not extract anything out of him? All this must be investigated impartially and truth must come out!
                                        On a concluding note, Supreme Court very rightly granted bail to Lt Col Purohit while taking into account his otherwise unblemished track record with many citations lauding him unequivocally and giving credence to the indisputable fact that he was planted as a mole in Abhinav Bharat by Army itself and he was keeping his seniors in the loop about everything and did not hide anything! Even Nasik Police Commissioner Himanshu had thanked him for his untiring and unstinted efforts in helping them to nab many terrorists yet all this was overlooked and he was incarcerated himself as a terrorist for 9 long years and yet charges were not framed against him because all charges against him were fabricated, concocted and maliciously framed to get him hanged for being a terrorist involved in Malegaon blast case in which 7 Muslims had died and about 100 injured! I am sure that this case too will be decided on merits, not on media reports alone which left no stone unturned in wrongly branding him a Hindu terrorist about to turn India into a Hindu country without bringing out that he had been planted as a mole by the Army itself and he was briefing his seniors about everything going on! Truth will ultimately prevail!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.