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

Challenge to Unconstitutional Provisions of Anti-Rape Law

I reproduce below the full text of a writ petition I filed in public interest in the Delhi High Court along with two others on 17 March 2017.

Kapil Sibal, among the most eminent lawyers of India, is arguing this case. 

We invoked Article 226 of the Constitution of India  for challenging the validity of some of the provisions of the Criminal Law Amendment Act, 2013 which have made the anti-rape law draconian and easy-to-abuse.

The High Court has issued notice to the Central Government and set July 5, 2017 as the next date of hearing.

​ Kapil​

 has taken on this case pro bono because he saw merit in the arguments I put forth in the petition,  which I drafted personally in consultation with and with inputs from lawyer friends.

​ ​

Kapil is an old friend

​.​

 We often disagree on important issues but it has not caused any bitterness on either side.

1.   The petitioners are citizens of India. Petitioner No.1 is an acclaimed social scientist and public intellectual. She is also widely acknowledged as having pioneered women’s rights and human rights activism both in India and abroad. The Petitioner No. 1 currently holds an extremely prestigious fellowship as the Maulana Azad National Professor at the Indian Council of Social Science Research. In addition, she was formerly a Professor, at the Delhi-based Centre for the Study of Developing Societies, as well as the Director of the Centre’s Indic Studies Project. The Petitioner No.1 is also the founder-editor of the internationally acclaimed publication, ‘Manushi – A Journal about Women and Society’ which was started in 1978 and run by the non-profit organization, Manushi Trust. She is known particularly well for her long association with gender justice and women’s rights. Petitioner No. 2 is a woman charged under section 376 read with section 109 of the Indian Penal Code (hereinafter ‘the IPC’) and other offences.  Petitioner No. 3 is a man convicted under section 376 (1) in a case where the Prosecutrix admits voluntary sexual intercourse., But since it is alleged that she is below 18, despite the fact that her age has not been verified by medical examination, he is in jail awaiting sentence.

2.  By this petition, the changes wrought in sections 375 and 376 IPC by the Criminal Law Amendment Act, 2013 are challenged as discriminatory, arbitrary and severely prone to abuse. On the one hand, the definition of “rape” has been widened to include non-penetrative acts incapable of medical corroboration, the cut-off age for “statutory rape” or “child rape” has been raised to 18 and  even for adult rape, ‘consent’ has been defined more strictly. On the other hand ‘judicial discretion to award less than 7 years has been taken away, even though a large number of independently unverifiable cases and even perfectly consensual acts will now be counted as rape. Following these amendments, there has been a startling spurt in false cases in Delhi, with over 53 per cent of the total cases registered in Delhi proving to be fraudulent. Of the total rape complaints in a year, over 25 percent of involve a breach of promise to marry and over 30 percent involve consensual elopements, with revenge emerging as a prime motive for complaint as per studies conducted by the Delhi Commission of Women and the Hindu newspaper.

3.     The Petitioner No.1 in her 35 year long engagement with providing legal aid and counselling for women and disadvantaged or unjustly treated groups and individuals in society, has seen the actual working of laws from very close quarters and is therefore deeply concerned about the growing incidents of misuse and abuse of several laws ostensibly enacted for the protection of women. Through her journal Manushi as well as her active engagement with providing legal aid and advice to women victims of domestic violence and sexual atrocities, the Petitioner No.1 played a leading role in mobilizing public opinion against such crimes. The Petitioner No.1, through painstaking investigations and by building a rapport with the victims of atrocities, was among the first to record and publish first-person testimonies of rape survivors, women battling sexual harassment as well as women survivors of gang rapes during communal riots and massacres. While working in relief camps she was able to document the first-person testimonies of women during the 1984 mass violence against the Sikhs in Delhi. She carried out a similar exercise following 1987 communal riots in Meerut & Maliana followed by Bombay riots of 1992-93. All these reports foregrounded for the first time, women’s experience during riots which till then had rarely got the kind of attention that loss of male lives and property did.