J&K High Court Gives Interim Stay on Non-Bailable Warrants against Madhu Kishwar

For all my friends and well wishers who have been worried about my safety following the non bailable arrest warrant issued against me by Chief Judicial Magistrate, Srinagar—Ms Masarat Shaheen—here is a small bit of good news.

In response to my petition in the High Court of J&K filed in Jammu requesting a stay order against the proceedings in the Court of CJM Srinagar and transfer of my case to a court in Jammu, Hon’ble Justice Tashi Rabstan has ordered as follows:

"Subject to objections from the other side, the proceedings pending before the court of Learned Chief Judicial Magistrate, Srinagar in File No 14/Alif A, titled “Syed Shujaat Bukhari Vs. Madhu Kishwar”, shall remain stayed for the next date of hearing only fixed before the Trial Court."

Notice to respondent Shujaat Bukhari is returnable within two weeks and the case to be listed in the High Court “immediately after two weeks”.  This means I am saved from arrest for the next two weeks or so. So all I have at the moment is interim relief. I will keep you posted on whether or not I get permanent stay order from the J&K High court  & how the case proceeds henceforth. 

It is likely to be a long-drawn battle.
(For details of what provoked CJM Srinagar to issue non-bailable warrants against me Read--http://madhukishwar.blogspot.in/2017/04/fact-sheet.html)

One cannot predict whether Bukhari will accept the case being transferred to Jammu or whether he will insist that the criminal defamation case he has filed against me should be tried in Srinagar CJM court.

As far as I am concerned, I am willing to face arrest but not willing to be tried in Srinagar CJM’s court simply because I know that I will not get a fair trial in her court. She had issued a non-bailable arrest warrant against me in clear violation of Supreme Court guidelines in such matters.

In order to demonstrate my respect for the majesty of the court, I had made sure that my lawyer appeared before her on each hearing. The reasons I offered for seeking exemption from personal appearance in her court were all legally sound. I had only pleaded that my rights as an “accused” as defined by the Supreme Court be respected. I did not not demand any special favor or concession nor did I show any disrespect towards the court.

Apart from other sound reasons I offered in my submissions, it is no exaggeration to say that appearing in a Srinagar court under the existing volatile and violence ridden environment prevailing in the Valley poses serious risks to my life and security. A state where a mere bye-election leads to death of 8 persons due to mob violence and countless security persons being seriously injured while ensuring peaceful conduct of the bye elections is not a safe place for anyone. I am particularly vulnerable because Shujaat Bukhari has enormous political clout within the establishment (his brother is a senior cabinet minister in Mehbooba Mufti’s government) but also deep links with militant groups. He could easily get me eliminated in what may be passed off as a case of “stone pelting” by “innocent youth” of Kashmir which has already led to deaths of scores of policemen and paramilitary forces!

In a situation where security forces are so vulnerable, where the chief minister requests the Election Commission to postpone elections because she is unable to campaign in her home turf from where her brother is fighting Lok Sabha bye election, what kind of safety can I as an unprotected outsider expect?

Debt of Gratitude to my lawyers : Finally, I owe a very big thanks to my two lawyers—young Ravi Sharma of Delhi & one of Jammu’s top most lawyers, Sunil Sethi—both of whom I met for the first time through common friends when I was looking for lawyers to help me with this case.

Ravi flew from Delhi to Srinagar to be present for each hearing. His intense involvement in the case born out of deep patriotism, his professional diligence and genuine concern for my safety made it much easier to face the risks involved in fighting this case. It is no exaggeration to say that he lost more sleep worrying about my likely arrest than I did, especially since I made it very clear that I was neither going to deny the tweets deemed “defamatory” by Shujaat Bukhari nor apologize for them!

Sunil Sethi is an eminent legal luminary of Jammu who also practices in the Supreme Court. A common friend put me in contact with him and it was decided that I would fly to Jammu for signing vakalatnama and my petition to the High Court on April 6, which happened to be my birthday. Though I am not the partying kind, even so I left Delhi feeling sorry for having to spend my birthday in the dreary atmosphere of a court with its soul destroying procedures. 

But Sunil Sethi made it one of the most memorable days of my life.

He had prepared the draft of my petition to J&K High Court in record time in close coordination with Ravi Sharma. He took up the case as though I were close family member, not just another client. He had me received at the airport like a VIP, treated me to a sumptuous breakfast at his house before personally taking me to court for legal formalities which were all over within half an hour because he had pre-planned it all so well. Even for my return journey, Sunil ji took care of the minutest detail so that I didn’t even have to stand in line for my boarding pass. Far from a stressful experience it turned out to be the best birthday gift any body could give me. 

Thus what had been a nerve-racking ordeal with well wishers telling me to go into hiding lest the J&K police nab me before I get a stay order (something I refused to do) was made easy to bear because of these two lawyers.

The outcome of the case is unpredictable but I promise Shujaat Bukhari a good fight to the very end!

My very sincere thanks to all those who have lent support to me during this trying time, especially those who wrote blogs, articles and ran a vigorous support campaign through social media. I hope you will continue this support while we take this battle to its logical conclusion--pressing upon the J&K state government as well as the Central government to stop lending financial and political support to owners/editors of newspapers, journalists, politicians, academics and NGOs promoting pro Pak agenda of secession in Kashmir.

See Link : Non Bailable Arrest Warrants by Kashmir Court against Madhu Kishwar - Offence? "Defamatory" Tweets against Separatist Newspaper. 

Non Bailable Arrest Warrants by Kashmir Court against Madhu Kishwar- Offence? "Defamatory" Tweets against Separatist Newspaper

Patently Illegal Non Bailable Arrest Warrants Issued by Chief Judicial Magistrate against Madhu Kishwar in response to criminal defamation suit filed by Shujaat Bukhari, Editor Rising Kashmir

Background: In response to reports of politically engineered violent anti India protests in Kashmir I expressed my distress at the high decibel, pro-secessionist, anti-India propaganda launched by leading journalists and newspapers in Kashmir who seemed to be providing very provocative and lop sided coverage which romanticized those attacking the army and indulging in terrorist strikes and stone pelting

I made special mention of Shujaat Bukhari owner-cum editor Rising Kashmir not because his paper is theonlyexample of pro Pak journalism but because he is a favorite of leftists and he pretends to be defender of human rights- though only of terrorists!Prior to setting up his own paper, Rising Kashmir, Bukhari used to be Bureau-Chief of The Hindu for Kashmir.

The sum and substance of my tweets was that even though Bukhari takes money from government agencies—both state & central government, yet he parrots the Pakistani script.The Rising Kashmir coverage of the Pakistan engineered unrest in the Valley is very pro-secessionist. Incidentally Shujaat’s brother Basharat Bukhari is a senior cabinet minister in PDP government and the family is part of the power establishment of Kashmir. But like many other politicians and journalists Shujaat’s paper gives a pro-Pak tilt to the coverage of events in Kashmir.

In response to my tweets, Shujaat Bukhari filed a criminal defamation suit against me in December 2016. 

Facts of Defamation Case:

• On December 3, 2016, Bukhari’s criminal defamation case against me was listed for first hearing in the court of Chief Judicial Magistrate, Srinagar. On the very first day itself, the CJM, Ms Masarat Shaheen, examined the complaint as well as two witnesses cited by Shujaat Bukhari both of who give their evidence in Urdu. Normally, such procedures take months & years in our legal system.
• That very day on 3^rd December, CJM issued bailable warrants against me. This alacrity on behalf of CJM itself indicates active bias in favor of Shujaat. 

• My offence, if any, did not merit a warrant. As per Indian Penal Code as well as Ranbir penal Code operative in Kashmir, as a first step in such cases, the court should at best issue summons. Only when the accused refuses to appear or has committed some heinous crime, warrants are to be issued.  Three four tweets saying Shujaat supports secessionist groups is hardly a heinous crime, especially considering that Shujaat has not thought it fit to deny the charge in his petition before CJM. 

• However, he denies that he takes money from Indian agencies. Even if under the table payments cannot be “proved”, he cannot deny that he has been seeking and getting ads from state government as well as DAVP. So his paper runs with government money. 

• As per Kashmir paper reports, I was expected to appear before CJM Srinagar on December 24, 2016. But the bailable warrant was served to me much after 24^th. Therefore, I did not feel obliged to appear merely on the basis of report in Rising Kashmir. 

• The issuance of bailable warrants instead of summons was an irregularity particularly when the accused in the case is a woman living outside the State. What is glaring is the fact that the CJM while deviating from the “procedure established by law” as contained in section 90 assigned no reason for issuing warrants at the very first instance. 

• The warrants were finally served/executed on me on 24.01.2017 and sought my appearance before the court on 28.01.2017—a very short notice considering I am based in Delhi & case was in Srinagar. 

• Even so, my lawyer, Ravi Sharma flew from Delhi to appear on 28 January 2017 with an application seeking exemption from personal appearance in CJM court in Srinagar citing the Supreme Court guidelines for such cases in Bhaskar Industries Ltd. Vs. Bhivani Denim and Apparels Ltd.In my application, I assured the Court that my lawyer would not miss any hearing or seek adjournments in terms of the above-cited SC order. 

• In the above order the SC clearly lays down that personal appearance can be exempted when the ‘accused” is a woman and/or living far away in another city or stateand/or is a senior citizen and/or is in poor health. I qualified on all counts and had been advised by my doctors to take rest for some weeks after a major surgery on 4th January 2017 at Medanta Hospital.  I had submitted a medical certificate to this effect from the Medanta doctor who conducted my surgery. 

• Another important consideration for seeking exemption from personal hearing is the continuing surcharged atmosphere in the Valley, especially in Srinagar where my safety and security would be in serious jeopardy. This is especially so because Shujaat Bukhari is well connected with secessionist groups. 

• The CJM heard the case that day but gave an orderon 20 March, 2017 disposing off my application seeking permanent exemption filed and directed me to appear before the court on 3^rd April, 2017 or else face arrest warrants. I decided not to obey the order since it was premised on deliberate erroneous interpretation of the above-mentioned SC judgment. 
• The nature of news reports and editorial comments in Rising Kashmir over a period of time clearly show that he is a sympathizer and supporter of separatists and militants (a euphemism for terrorists). Under these circumstances, especially given his political clout and close links with militant groups, it is reasonable for me to apprehend that forcing me to go to Srinagar is to put my life and limb at risk. For the record, the Bar Association of Kashmir has been open in its support of militants & Pakistan backed secessionist movement. 
• Since my lawyer and I were convinced that the order of the CJM dated 20 March, 2017 was borne out of misreading/misinterpretation of the Apex Court’s judgment in Bhaskar Industries Ltd case, I decided not to appear personally on 3^rd April. However, my lawyer Ravi Sharma appeared on the scheduled date before the CJM and submitted an Application seeking modification of her order of 20 March and also sought exemption from personal appearance for 3^rdApril, 2017. 
• In the alternative, I requested the CJM to grant “reasonable time” for me to seek clarification from the Supreme Court whether or not her order insisting on my personal appearance & issuing warrants was legally sound.
• Unfortunately, CJM sahiba issued NON BAILABLE WARRANTS against me without paying attention to the averments and submissions made in my application and without giving my counsel proper hearing. 

• Thus CJM Masarat Shaheen has passed three consecutive orders that indicate prejudice and bias against me.

Options before me: Petition the High Court of J&K for stay order on the arrest warrant, apply for transfer of case from Srinagar because my appearance in Srinagar court poses serious risk to my life and does not promise me a fair trial. I also intend to challenge CJM’s orders in defiance of Supreme Court guidelines at an appropriate level.

I am ready for the prolonged legal and political battle this involves, no matter what it takes. 

It is noteworthy that Shujaat Bukhari does not deny my charge that his paper is pro-separatist and follows the Pak agenda. The only charge he has denied is that he takes money from Indian agencies. Is he willing to reveal where he got the funds to set up his paper? Who pays for his many trips to Pakistan, Dubai and other countries? Knowledgeable people close to him allege that Shujaat cultivates and curries favour with Indian intelligence agencies and Military Intelligence as a cover for his ISI links!

Shujaat should be willing to reveal where the money came from for his setting up three papers--two in Urdu apart from Rising Kashmir in English as well as a printing press. Is he willing to reveal how he  bought several prime properties in Srinagar? All this when the print edition of Rising Kashmir and the two Urdu papers he set up subsequently all have a minuscule circulation in the Valley! They are meant only to make money through government ads and other forms of patronage. He inflates the circulation figures to corner more ads and subsidised news print. Its only on the Net that Rising Kashmir gets some traction.

I have a right to ask him to reveal information about his financial affairs because in the interest of transparency, MANUSHI posts on its website accurate information regarding every rupee that it gets by way of donations or sale of its publications as well as audited accounts of how the money is spent. Is Shujaat Bukhari ready to be as transparent about the finances of his newspapers?

Even if we don't  take into account undercover payments made to separatist leaders and journalists in Kashmir by ISI, can Shujaat deny that he seeks and gets advertisements from the state government as well as DAVP--which releases central government ads?  

The big question I want answered: Why is the J&K government and central government patronising separatist newspapers?

The deafening silence of the champions of "freedom of expression": Please note the deafening silence regarding this case in the "liberal" mainstream media. Compare it to the national and international media fury unleashed when a defamation case was filed against Ashis Nandy by an Ahmedabad based NGO for Nandy's baseless  and outrageous defamatory statements published in The Times of India against Modi and Gujarati Hindus. He was projected by the entire media as a victim of "fascist" wrath. Top Congress party lawyers rose to his defence and argued his case up to the Supreme Court--all free of charge. But it didn't make big news when Nandy ended up offering an unconditional apology for his defamatory article when the Supreme Court was on the verge of indicting him!

Or compare the media outrage over Teesta Setalvad being booked on proven charges of brazen corruption and siphoning off money collected in the name of riot victims being spent on personal luxuries and aiyyashi!

But in this case, there is total silence in the mainstream media and by the leaders of the Award Wapsi Brigade! I bet in their worldview, it's not I who am the victim of lawless orders emanating from a Srinagar court in favour of an influential separatist newspaper. Instead, Shujaat Bukhari is likely to be seen as a victim of my 'intolerance" against his freedom to help Pakistan break up India one more time.


Read : J&K High Court Gives Interim Stay on Non-Bailable Warrants against Madhu Kishwar