Agitprop psyops getting to the judiciary?

"Dissent is the safety-valve of democracy" | "Jail is the safest place to be in" | "Jail inmates have a right to have sex with partners" | "Unreasonable to limit only four players to a rummy table"

Jurisprudence is an esoteric subject to the laity. Judges are demigods and lawyers their mediators! Despite this lofty public perception, Indian courts have in the past adjudicated matters which the laity might find frivolous, and in some cases delivered judgements which the laity might find bizarre. Some years ago, a High Court sat on Gandhi Jayanti day (one of three compulsory Indian national holidays), to adjudicate a matter related to a cricket board!

In the Bhima Koregaon case in which ‘social activists associated with Maoist links were accused of making inflammatory speeches leading to wide–spread violence, the Supreme Court held that dissent was a safety–valve of democracy. It was another matter that the same Supreme Court not only refused bail to a journalist but when his lawyer pleaded that his life was in danger, gratuitously added in an obiter dictum, that for one whose life was in danger, a jail was the safest place to be in!

In 2015 the High Court of Punjab and Haryana decreed that jail inmates have a right to have sex with their partners! In 2018 the Bombay High Court determined that limiting only four players to a table in a game of rummy was unreasonable!

The Supreme Court’s decision in the Indian Social Action Forum (INSAF) vs the Union of India (Civil Appeal No.1510 of 2020—Arising out of SLP (C) No.33928 of 2011) makes for curious reading. The NGO which claims to be “resisting globalization, combating communalism and saving democracy” filed the SLP in the Supreme Court challenging the Foreign Contribution (Regulation) Act, 2010.

In what has become a standard template (for challenging Indian government acts by now), the NGO challenged the FCRA on the grounds that it violated its fundamental rights under Articles 14, 19 and 21 of the Indian Constitution. The Government contended that the appellant organization is not entitled to invoke fundamental rights as they are guaranteed only to citizens and that the appellant organization cannot be considered a citizen. While agreeing with the contention that being an organization the NGO cannot invoke rights under Article 19, the Supreme Court has “read down” Clause 3. (VI) of the FCRA Rules which were framed based on the Act. Here is the relevant clause:

“3. Guidelines for declaration of an organization to be of a political nature, not being a political party – The Central Government may specify any organization as organization of political nature on one or more of the following grounds:

(ii) Any Trade Union whose objectives include activities for promoting political goals;

(iii) Any voluntary action group with objectives of a political nature or which participates in political activities;

(iv) Front or mass organisations like Students Unions, Workers' Unions, Youth Forums and Women's wing of a political party;

(v) Organization of farmers, workers, students, youth based on caste, community, religion, language or otherwise, which is not directly aligned to any political party, but whose objectives, as stated in the Memorandum of Association, or activities gathered through other material evidence, include steps towards advancement of Political interests of such groups;

(vi) Any organization, by whatever name called, which habitually engages itself in or employs common methods of political action like ‘bandh’ or ‘hartal’, ‘rasta roko’, ‘rail roko’ or ‘jail bharo’ in support of public causes.”

The Court nuanced that while ‘bandh’, ‘hartal’, ‘rasta roko’ etc. are legitimate political activities, an NGO resorting to the same activities need not necessarily be categorized as a political organization. Did the Court err in nuancing its interpretation of the law on the grounds that it was ‘vaguely’ or ‘ambiguously’ worded?

It is not apparent from the 23–page judgement whether the Court has gone into the antecedents of the NGO or even whether the government has brought them to its notice.

Curiously, very is little is known of the organization which calls itself Indian Social Action Forum shortened as INSAF with its tell–tale Arabic connotation. Its website does not give anything away. We do not know who its founders, directors or present administrators are. All we know is that it calls itself “a national forum of over 700 movements and NGOs in India”. Its website is full of “papers”, re–posted or hyperlinked from other sources, calling for halting every project which in anyway advances human progress from developing infra–structures to constructing nuclear power plants.

Among those hyperlinked is a paper by Ben Hayes entitled “Counter–Terrorism,‘Policy Laundering’ And The FATF—Legalising Surveillance, Regulating Civil Society”. The number of NGOs/NPOs involved in the preparation and funding of the paper (which can be seen peppered across its pages) tells its own story. They include ‘Transnational Institute’, ‘Statewatch’ and ‘Catholic Organization for Relief and Development’, shortened as Cordaid. While nations across the world struggle to control terrorist organizations, the paper calls for making the Financial Action Task Force (FATF), ‘the global money laundering and terrorist financing watchdog’, virtually ineffective. It calls into question UNSC Resolution 1373 of September 28, 2011, which requires member nations “to criminalize the support of terrorism by freezing the assets of suspected terrorists”.

Can judges be absolutely dispassionate in adjudicating legal disputes? Or are they only too human not to be able to resist the tide of prevalent political zeitgeist? Oliver Wendell Holmes Jr. (1841–1935), a U. S. Supreme Court justice known as “the Great Dissenter” was a study in contrast. He delivered judgments that made him look like a product of his times, like his judgement in the Virginia eugenics aka Buck vs Bell (1927) case.

The theory of eugenics is as old as Aristotle. It appears the fourth century BCE philosopher had suggested that ‘men should tie their left testicles prior to intercourse if they wanted a male child’! The objective of eugenics was to increase the proportion of healthy and intelligent individuals in the general population. Conversely the poor and unhealthy were prevented from conceiving by forced sterilization.

It is generally assumed that forced sterilizations as a measure of eugenics were practiced only in Nazi Germany. Indeed, in India 6,000,000 forced sterilizations were carried out during the infamous Emergency (1975-77) but the objective behind them was not eugenics. It was population control.

According to a report published on the website PsychCentral.com, by the 1930s, thirty states in the USA had sterilization laws. The state of Indiana enacted the first eugenics law in 1907. In 1924 Virginia enacted a similar law plugging perceived loopholes. In 1927 Carrie Buck was the first victim of the Virginia sterilization law. Between 1927 and the 1970s, 65,000 Americans with ‘mental illness or developmental disabilities’ were sterilized. The reasons for the forced sterilizations were cited as mental illness, hyper aggression, and even stupidity! “Some states even expanded the definition to include blindness, deafness, drug addiction and alcoholism.”

In the Virginia eugenics aka Buck vs Bell (1927) case, Emma Buch, a 17-year-old juvenile, deemed “feebleminded” and “sexually promiscuous”, was tried under the eugenics law. When the case reached the US Supreme Court, Justice Oliver Wendell Holmes ruled:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind … Three generations of imbeciles are enough.

Oliver Wendell Holmes was an otherwise highly respected and sagacious justice. How did he deliver a judgement that appears now to be unconscionable? Was he too just a product of his time, and was unable resist the tide of prevalent political zeitgeist? In marked contrast in the Lochner vs New York (1905) case he ruled, in a minority judgement, removing the 60–hour per week work limit for bakery workers. But his ruling in the landmark Schenck vs United States (1919) case is conspicuous for its interpretation of the US First Amendment, which protects US citizens’ freedom of speech from legislative interference. The ruling held that in times of war, national security takes precedence over individuals’ right to freedom of speech. 

Back home in India, are agitprop psyops getting to the judiciary, and are they succumbing to political zeitgeist?

Labels: Bhima Koregaon, Buck vs Bell, FATF, FCRA, Indian Social Action Forum (INSAF), Lochner vs New York, Oliver Wendell Holmes Jr., Schenck vs United States, Supreme Court, U S First Amendment

This is an edited and expanded version of the article originally published in VOXINDICA