Human Rights in India and the DHFL Scam: Knowing through Negations
Human Rights in India and the DHFL Scam: Knowing through Negations
Human Rights in India and the DHFL Scam: Knowing through Negations
Posted on 4th November, 2024 (GMT 17:21 hrs)
ABSTRACT
The article highlights the DHFL scam as a case study in India’s human rights landscape, focusing on the misuse of state mechanisms to silence victims and activists. By examining patterns of harassment, it reveals a troubling trend where dissent against financial misconduct meets state repression. The author argues that this tactic of “knowing through negations” helps illuminate power structures at work in stifling justice. Overall, it’s a critique of how human rights violations often intersect with financial scandals in India.
I. INTRODUCTION: IDENTIFYING THE ISSUE-AT-HAND
(Not) Quite surprisingly enough, we are compelled to write this article.
Most of our blog posts, articles and paper-letters are of this nature: written out of certain crisis-points, certain burning issues, certain existential dilemmas faced by us and our fellow suffering beings. However, in each case, we always take note of the long term goals in our heads.
As we wrote in this post about our agendas in relation to the DHFL movement:
Whatever be the case, it is time again to ponder over the overlap or intersection amidst the question of human rights in India and the financial abuse in the DHFL scam⤡ ⤡. We have logico-legally related these two areas previously in the course of composing different letters, posters and blog-articles, but we left out certain points that remain to be addressed and are facing the “want” of adequate explanation, especially in connection with the ongoing hearings of the DHFL scam at the Supreme Court of India.
First of all, in initiating a conversation on “human rights” as such in the present Indian context, what comes up in our mind in an instant? Violations! Gross violations as pointed by organizations such as Amnesty International, Freedom House, V-Dem Institute, United Nations and Human Rights Watch, through their various reports and press-releases from time to time. Be it Kashmir, Manipur, or the selectively planned attacks (pogroms, shaming, threat culture, mob lynching, cow vigilantism or religious extremism in every form, which is concentrating on mono-religious nation-statism etc.) on the Muslim or Dalit communities, or gender violence on women, or the infringement of economic justice on multiple occasions due to rising disinvestment/privatization of the public sectors in the hand of chosen few business magnates like Adani-Ambani-Piramal, where RTI as a tool of accountability⤡ has ceased to function by yielding only unanswered answers, or the attacks on the independent voices of the non-Godi media or freelance journalists and falsely arresting, detaining the non-conformist/anti-establishment students of the country’s (once) prestigious institutions through arbitrary and draconian laws such as the UAPA—- contemporary India under the rule of the Hindutvavadi Bharatiya Janata Party (BJP), as a whole, paints a startlingly bleak picture when it comes to the promotion, preservation and protection of the basic, fundamental human rights, as covered under the international covenants as well as the national adoptions of the same.
INDIA WOUNDED: A BIRD’S EYE VIEW
Human Rights Compromised in India under the Oligarchic Regime
Stifling the Freedom of Expression: the Fourth and Fifth Pillars of Indian Demo(n)crazy
India (2014-23): Mass Media, Censorship and the DHFL Scam
This kind of failed state of India is not entirely unexpected given that the BJP oligarchy breeds its Saffron Fascist agenda on two things at their worst best: religious extremism/fundamentalism and crony-monopoly capitalist functioning (market fundamentalism)⤡ ⤡. The former is the mask, the latter is the latent dominant motive. The former is used to foreclose the cannibalistic profiteering enterprise of the latter.
II. Article 21 and Article 32: Brief Overview and Implications in the DHFL Scam
Now, in the context of the DHFL scam in particular, we may bring to your kind notice two crucial Articles from the Indian Constitution, which are summarized below along with their sources:
ARTICLE 21 OF THE INDIAN CONSTITUTION
Article 21 of the Indian Constitution provides a fundamental safeguard for the protection of life and personal liberty, stipulating that no individual shall be deprived of these rights except through a procedure established by law. This foundational right not only guards against arbitrary deprivation but also expands upon what it means to live with dignity. As interpreted by the Indian judiciary, Article 21 has evolved from a basic right to life and liberty to encompass a broader range of rights essential for dignified living, including rights to livelihood, privacy, a healthy environment, and personal autonomy.
In early judicial interpretations, such as A.K. Gopalan v. The State of Madras (1950), the Supreme Court took a narrow view, defining personal liberty as merely the freedom from unlawful detention, wherein only state-made law would determine personal liberty’s boundaries. However, this restrictive interpretation was later broadened in R.C. Cooper v. Union of India (1969), where the court recognized that personal liberty under Article 21 also included the freedoms provided by Article 19(1), thus integrating the rights to freedom of speech, assembly, and movement.
Subsequent judgments have further enriched the understanding of Article 21. In Kharak Singh v. State of Uttar Pradesh (1962), the court expanded “personal liberty” to include various fundamental freedoms, while in Maneka Gandhi v. Union of India (1978), it defined the right to life as including the right to live with dignity. This landmark case introduced the requirement that the “procedure established by law” under Article 21 must be fair, just, and reasonable, prohibiting procedures that are arbitrary, oppressive, or unreasonable.
The judiciary’s interpretation of the right to life continued to evolve, recognizing livelihood as a vital aspect in Olga Tellis v. Bombay Municipal Corporation (1985). The court ruled that evicting pavement dwellers without providing alternative arrangements would violate their right to life, as livelihood is integral to dignified living.
In Vishaka v. State of Rajasthan (1997), the Supreme Court addressed workplace sexual harassment, establishing guidelines to safeguard employees’ right to a secure and respectful work environment, connecting this to Article 21. Further, in National Legal Services Authority v. Union of India and Ors (2014), the court affirmed the right to self-identified gender, emphasizing that transgender individuals are entitled to all rights under Article 21 and thereby need equal access to public facilities and protections as a recognized minority under Articles 15 and 16.
Animals’ rights were also brought within the ambit of Article 21 in Animal Welfare Board v. A. Nagaraja (2014), wherein the court, invoking the doctrine of parens patriae, ruled against cruelty towards animals in the Jallikattu festival, emphasizing the constitutional duty to ensure compassion towards all living beings as stated in Article 51A(g).
The landmark privacy case, K.S. Puttaswamy v. Union of India (2017), furthered Article 21’s scope by establishing the right to privacy as a fundamental right integral to personal liberty and dignity. In Common Cause v. Union of India (2018), the court extended this protection by recognizing the right to die with dignity (euthanasia), allowing individuals the autonomy to refuse life-sustaining treatment in terminal situations, and enabling them to create advance directives regarding their medical care.
Article 21 enshrines vital protections against arbitrary detention, ensuring that individuals are safeguarded from unjustified deprivation of liberty without due process. This provision includes the right to a fair trial, which encompasses the rights to legal representation, an impartial hearing, and the opportunity to present evidence. However, in the landmark case of A.K. Roy v. Union of India (1982), the court upheld the National Security Act (NSA), acknowledging that certain principles of natural justice may be set aside in the interest of national security, thereby limiting individual protections under specific circumstances.
Through its rulings, the Indian Supreme Court has consistently expanded the interpretation of Article 21 to include protections against torture, custodial violence, and environmental degradation, thereby ensuring that this right remains both comprehensive and adaptable. However, while Article 21 is a cornerstone of personal liberty, it is important to note that reasonable restrictions may be imposed in the interests of public order, national security, public health, or morality, as long as these restrictions are proportionate, justifiable, and align with the principles of reasonableness (following the Utilitarian “Harm Principle”) set forth by the judiciary.
SOURCE: Article 21 VIEW HERE ⤡
In a recent speech on the emergent dangers to the Article 21, former Delhi High Court judge Justice Rekha Sharma criticized the judicial roster system, emphasizing how it allows the Chief Justice of India (CJI) to assign cases selectively. She highlighted three significant concerns: the ability of the CJI to choose and preside over specific benches, the potential influence in securing post-retirement appointments, and possible favoritism toward close colleagues. These points were raised in a seminar hosted by the Campaign for Judicial Accountability and Reforms (CJAR), aiming to address broader accountability issues within the judiciary.
ARTICLE 32 OF THE INDIAN CONSTITUTION
Article 32 of the Indian Constitution is pivotal in guaranteeing the right to constitutional remedies, empowering individuals to directly seek redress from the Supreme Court if they believe their fundamental rights have been violated. It not only grants individuals the right to move the Supreme Court but also equips the Court with substantial powers to enforce these rights.
This provision ensures swift redress, allowing individuals to bypass lower courts when their fundamental rights are infringed. It is distinct from Article 226, which grants the High Courts the power to issue writs but does not guarantee direct access to the Supreme Court.
Article 32 grants the Supreme Court authority to issue five types of writs to safeguard fundamental rights:
- Habeas Corpus: This writ serves to protect personal liberty, compelling authorities to produce a detained individual in court to examine the legality of the detention. The habeas corpus writ is instrumental in preventing unlawful detention, ensuring timely intervention. In Addl. District Magistrate, Jabalpur v. Shukla (the Habeas Corpus Case), the Supreme Court controversially ruled that habeas corpus petitions could not challenge preventive detention orders during the Emergency. The 44th Amendment (1978) later rectified this by ensuring that Article 21, which protects personal liberty, could not be suspended even in emergencies. In State of Maharashtra v. Bhaurao Punjabrao Gawande, the Supreme Court emphasized that habeas corpus is a constitutional safeguard against illegal detention and is a fundamental aspect of civil liberty.
- Mandamus: This writ directs a public official or authority to perform a duty mandated by law. It serves as a means to compel government officials to fulfill their legal obligations. In S.P. Gupta v. Union of India, the court specified that mandamus cannot be issued against the President regarding judicial appointments. Cases like Bombay Municipality v. Advance Builders and State of West Bengal v. Nuruddin further refined its scope, establishing that mandamus applies to public duties and lawful responsibilities, excluding purely private matters or discretionary powers. In Ramakrishna Mission v. Kago Kunya (2019), the court ruled that mandamus is not applicable to private contractual disputes with no public authority involvement.
- Prohibition: This writ prevents lower courts or tribunals from exceeding their jurisdiction (excessive jurisdiction). It is typically issued before a final judgment is reached, restraining a court from making decisions beyond its lawful powers. In S. Govind Menon v. Union of India, the Kerala High Court issued a writ of prohibition to ensure a lower court respected its jurisdictional limits. The writ of prohibition provides a safeguard against unauthorized judicial overreach, as seen in cases like Prudential Capital Markets Ltd. v. State of A.P., where it was ruled that prohibition cannot be issued after a judgment has been executed.
- Certiorari: This writ allows the Supreme Court to quash the orders of lower courts or tribunals that act without or in excess of their jurisdiction. Unlike prohibition, which stops proceedings, certiorari nullifies a decision post-judgment. In Surya Dev Rai v. Ram Chander Rai, the Supreme Court clarified that certiorari applies solely to lower courts, not to equal or superior courts. In T.C. Basappa v. T. Nagappa, the court further elaborated that certiorari is appropriate where a court acts without or beyond its jurisdiction.
- Quo Warranto: This writ challenges the legality of a person’s claim to a public office, allowing for judicial review of public appointments. It ensures that individuals occupying public office are qualified and legally entitled to their positions. In G.D. Karkare v. T.L. Shevde, the court emphasized that quo warranto proceedings question the legitimacy of a person’s authority to hold public office rather than enforcing any individual rights. The case of Bharati Reddy v. State of Karnataka (2018) established that the writ of quo warranto requires concrete evidence of ineligibility, as it cannot be issued on mere speculation or assumption.
Article 32 is subject to suspension during a national Emergency under Article 359 of the Constitution. However, fundamental rights under Articles 20 and 21, which safeguard against conviction-related abuses and guarantee the right to life and personal liberty, respectively, remain non-suspendible even during emergencies, as established by the 44th Amendment.
The Supreme Court has utilized Article 32’s provisions expansively to address diverse human rights violations, establishing its relevance in defending not only individual freedoms but also in ensuring justice, fairness, and reasonableness in the exercise of governmental power. The Court has repeatedly emphasized that the right to constitutional remedies under Article 32 is itself a fundamental right, integral to preserving the democratic and constitutional order.
SOURCE: ARTICLE 32 VIEW HERE ⤡
Having summarized both these pivotal portions of the Indian Constitution, it is time to recount what Dr. Bhimrao Ambedkar had said regarding the significance of Article 32 within the Constitutional Framework:
“If I was asked to name any particular article in this Constitution as the most important–an article without which this Constitution would be a nullity–I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.”
Article 32 is thus deemed as the “heart and soul” of the Indian Constitution because it guarantees individuals the right to seek redressal directly from the Supreme Court when fundamental rights are violated. Dr. B.R. Ambedkar emphasized that without the assurance of this right, fundamental rights would be ineffective and mere “paperwork”, as citizens would lack a direct pragmatic mechanism to enforce them. By providing the authority to issue various writs, Article 32 ensures judicial oversight over the preservation of these rights, highlighting its indispensable role in India’s constitutional framework.
What is Article 32 which Ambedkar said was ‘heart’ and ‘soul’ of Constitution VIEW HERE ⤡ (As reported on 17th November, 2020 ©The Print)
Ambedkar Jayanti 2024: Why is Article 32 considered the ‘heart and soul’ of the Indian Constitution VIEW HERE ⤡ (As reported on 14th April, 2024 ©The Economic Times)
Following this remark, one may as well attempt, legitimately enough, to apply these two articles (in collusion with clauses from other Articles, especially 14 to 19, containing the core fundamental rights as well as the Directive Principles) in favour of the DHFL victims’ rightful demand over their hard-earned money or life-savings, especially because of the following reasons:
a) The DHFL scam has prevented the DHFL victims from exercising their right to livelihood and the right to live with dignity, thus violating Article 21. In this connection, the DHFL victims have also faced discrimination by merely getting a portion of their entire invested amount and have been hitherto denied an equality before the law (given that the NCLAT on 25.05.2021 and the SCI on 11.04.2022 favoured “more equal” Mr. Ajay Piramal and the RBI-appointed CoC instead of the DHFL victims), which goes against the essence of Article 14 and 15. Many trouble-makers within the DHFL movement had remarked quite a few times that only those who are part of the litigation at the judiciary would get back their money, not the others. This type of imperative also violates Article 15 as well as Article 21, given that this also hampers freedom/liberty of choice. Furthermore, 63 Moons Technologies also cited the Section 66 of the IBC to point that if the case is won by dint of their well-reasoned arguments, the “benefit will go to all the creditors” of the DHFL.
IBC Section 66 Overlooked by the DHFL-CoC: A Big Conspiracy?
b) The DHFL scam, especially through its biased Resolution Process and financially abusive resolution plan (of Mr. Ajay Piramal), has expressly shown the curtailment of business-related human rights of the DHFL victims. In such a scenario, the DHFL victims can apply the mechanism of Article 32 to prevent any such injustice or onslaught by directly approaching the Supreme Court, which they did on many occasions since 2021.
The Apex Court of India: RTI Activism on the DHFL Scam
RTIs to the Supreme Court of India and the DHFL Victims: An Impromptu Podcast
An RTI to the Supreme Court of India on Behalf of DHFL Victims for Resolving the Pending Cases
Mass Appeals To The Hon’ble CJI Through Snail Mail and Email
Urging for the Hastened Resolution of the Cases Related to the DHFL: a Letter to the Hon’ble CJI
Now, the fundamental rights as enshrined in the Indian Constitution does not have any “economic rights” as such (given that the only “Right to Property” was removed, rightfully, in the context of socialist ethos, by Mrs. Gandhi through the 44th Amendment, 1978). Yet, given that these rudimentary rights of human life reflect the basic framework adopted by all international treaties, covenants and charters on human rights, it does indeed implicate basic economic rights provided that in the case of any kind of such abuse or deprivation suffered by an individual, i.e., the possessor of these fundamental rights, the same can be reported by him/her/them and the authorities are bound to take the necessary courses of action accordingly in that regard to issue forth restorative justice.
In this connection, one recounts the Directive Principles of State Policy in the Indian Constitution, especially:
ARTICLE 38: To promote the welfare of the people by securing a social order permeated by justice—social, economic, and political—and to minimize inequalities in income, status, facilities, and opportunities. (ALSO REFLECTED BY THE PREAMBLE, WHICH SAYS: “…to secure to all its citizens: JUSTICE, Social, Economic and Political…”
| ARTICLE 39 To secure – The right to adequate means of livelihood for all citizens, – The equitable distribution of material resources of the community for the common good, – Prevention of concentration of wealth and means of production, (…) |
Article 39A further states: “To promote equal justice and to provide free legal aid to the poor.”
Article 43 says: “To secure (…) a decent standard of living, and social and cultural opportunities…”
Painting Courtesy: Rajib Chowdhury
All these have been denied in the case of the DHFL victims by favouring a BJP-associated crony tycoon’s profits, viz., Mr. Piramal. We, the OBMA activists, being advocates of the poor and the toiling victims, must state that not all can afford the Supreme Court’s huge expenses in the course of lengthy legal pleadings and proceedings over the span of years after years of “justice delayed, justice denied” as well as “tarikh pe tarikh” (dates after dates).
Hence, we had suggested the path of web-based non-violent civil disobedience movement that can carry out an all-out attack⤡ ⤡ on the identified enemies from all fronts. However, we did not discourage simultaneous action at the judicial front for those who can afford it, given that we ourselves have approached the SCI and have even got answers.
This is the reason why we turned to the International Justice, viz.,
“International Law is the Vanishing Point of Jurisprudence…”
by alluding to the 2011 United Nations Guiding Principles on Business and Human Rights (Implementing the United Nations “Protect, Respect and Remedy” Framework), especially with regard to the section “Access to Remedy” (Chapter III), referring to financial abuse by state and/or non-state actors and the loss of business-related human rights provisions involved therein.
Before that, in consonance to the Protection of Human Rights Act, 1993, we had approached the National Human Rights Commission (NHRC) in India, which, however, despite having a consolidated category of appeal under “business and human rights”, failed to entertain the plea of the DHFL victims under the false pretense that the said matter is related to “property disputes”. This is obviously because of the said institution’s saffronization consummation phenomenon!
FINANCIAL ABUSE OF THE DHFL VICTIMS: A COMPLAINT TO THE NHRC
FINANCIAL ABUSE OF THE DHFL VICTIMS BY THE RBI: SECOND COMPLAINT TO THE NHRC
FINANCIAL ABUSE OF THE DHFL VICTIMS BY THE CoC FOR DHFL: THIRD COMPLAINT TO THE NHRC
O “welfare” state, if you cannot give us the Right to Life, please give us the Right to Death without such different type of “capital” punishment, which has slowly poisoned the minds of DHFL victims. Therefore, we are urging to the Honourable Government to legalize active euthanasia⤡.
If we have no dignity to live at all, let us die with dignity. We cannot tolerate this type of living by the way of dying (that has become characteristic of the contemporary sovereign!) as it has crossed the threshold of tolerance:
“The atomic situation is now at the end point of this process: the power to expose a whole population to death is the underside of the power to guarantee an individual’s continued existence. The principle underlying the tactics of battle-that one has to be capable of killing in order to go on living-has become the principle that defines the strategy of states. But the existence in question is no longer the juridical existence of sovereignty; at stake is the biological existence of a population. If genocide is indeed the dream of modern powers, this is not because of a recent return of the ancient right to kill; it is because power is situated and exercised at the level of life, the species, the race, and the large-scale phenomena of population.” (Foucault, History of Sexuality: Vol. I, 1978, p. 137; emphasis added)
The pop slogan “Hindu Khatre Mein Hai“⤡ is merely a lip service of the present government (as well as the theo-autocratic ruling party) as the majority of the DHFL victims are Hindus and they are at stake.
Let us clarify: we do not stand for relatively privileging any one community above (or at the cost of) another, be it religious, racial/ethnic, or gender etc., in the context of an essentially pluralistic country like India!
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