By Mohammad Naushad Khan

On June 15, the decision of the Supreme Court to fine Rs. 5 lakh to Himanshu Kumar while dismissing his petition seeking probe into alleged rights violations by security forces in Dantewada in 2009 has surprised one and all. 

The court not only dismissed the petition but also asked the CBI to enquire into the possible conspiracy theory behind the petition. Many legal luminaries argue that such kind of order is likely to set a wrong precedent for human rights violation cases in the future.          

According to Sanjay Hegde, a senior Supreme Court lawyer, “This judgement consolidates the very dangerous precedent set in Zakia Jafri’s case. Dr. Ambedkar called Article 32 the soul of the Constitution. The court has now decided that in some cases, the person seeking to invoke the soul can be exorcised and imprisoned for doing so.”

Social activist and human rights defender, Himanshu Kumar is the son of a freedom-fighter. He was brought up at Gandhi Ashram in Meerut and was greatly influenced from Vinoba Bhave’s teachings. In Dantewada, he had founded the Vanvasi Chetna Ashram (VCA) in 2005. He assisted Adivasis in exercising their legal rights through VCA. Throughout his 17-year career at VCA, he fought for the return of displaced Adivasis to their homes, the release of wrongly accused individuals, and the rehabilitation of those who had been injured by police and in violence during the horrific Salwa Judum campaigns. His Ashram was later bulldozed in 2010 and he was forced to relocate to Delhi.

On the Supreme Court order, John Dayal, a noted social and human rights activist, said, “The Supreme Court order shook me up as I’ve never been jolted in the past. It was not only that I have known Himanshu Kumar for more than two decades. Everything about the order seemed obscenely aggressive, non-judicial in idiom, and even politically punitive in its syntax. And a Five lakh rupees fine is unheard of even as penalty for major lapses in the corporate sector.” 

He added, “I know Himanshu as a Gandhian, mild and softspoken, absolutely non-assertive. He has never sought the limelight even when he was a victim of violence in the past during his long stay in Bastar, before he had to shift out, and then found a base in the foothills of the Himalayas. It is difficult for me to imagine that he would through the entire judicial process and file a petition in the Supreme Court, if he did not feel strongly that there had been a miscarriage of justice, and no one has been penalised in the death of such a large number of tribals.

“Ironically this case was in the court while the Prime Minister was deciding on nominating an Adivasi for the post of President of India. A week after this harsh judgment, Mrs Draupadi Murmu became the first Adivasi , and a woman at that, to win the presidential election with ease. I am glad that Himanshu, in true Gandhian tradition, has said he will not pay the penalty and would rather go to jail. The Supreme Court will not do its image any service if it takes extreme steps in the future against him,” observed Dayal.

“We have known for a long time that cases in High Courts and the Supreme Court can have very different results, depending on the bench where a case is being heard. It is not surprising that precipitated the arrest of human rights activist Teesta Setalvad, and former Gujarat DGP Sreekumar in the Jafri case. Even in that ruling, it seemed the bench was taking out its anger at the activists.

“All those involved in such abuse of process, need to be in the dock and proceeded with in accordance with the law,” the bench had then said, Dayal cited.

On the implication of his order in the future, Dayal argued, “Where does this anger stem from is a major issue to be studied by law scholars and sociologists would go deep into such matters. But one thing is clear. If the regime at the top is seen as hostile to civil society and to the rights of the common and victimised people, it will be the easy way out for some court or the other to take its cue from the ruling ethos. As civil society, we worry that in the future it may be even more difficult to approach the Supreme Court on such matters that involve the right to life, as also the rights of deprived communities in particular.”

Engineer Mohammad Salim, vice-president of Jamaat-e-Islami Hind (JIH), while sharing his perspective on the issue, said, “The order in the case of noted activist Himanshu Kumar and the fine of a big amount for demanding re-inquiry, which is a genuine demand in a democracy, is a matter of great concern. The imposing of fine is a dangerous trend and indicates that no question can be raised or demand for re-inquiry could be made against earlier decision. The demand for seeking inquiry can be dismissed but punishing the one who has asked for inquiry or re-investigation is a very dangerous trend in a democracy.”

“Similar thing also happened in Zakia Zafri’s case when they asked for re-examination of the case and the action that followed against Teesta and others is against our democratic values and against the kind of freedom given to the people. Our courts and judges should think over it. By such kind of orders people’s faith in judiciary will get eroded and the credibility of judiciary will be at stake. People see to the courts as the last resort for seeking justice and if those seeking justice will be punished then people will lose their faith in judiciary and judicial process,” said the vice president of JIH.                         

On July 22, activists, writers, lawyers, and members of the civil society gathered under the slogan “Save Adivasis, Save Constitution,” during a press conference at the Press Club of India in the Capital to register their protest against Supreme Court’s recent decision to fine activist Himanshu Kumar and the war on the tribals.

Gandhian Himanshu Kumar, while addressing the press conference, said, “I will not pay the fine of Rs. 5 lakh as imposed on me by the Supreme Court even if it meant going to jail. Those who call for justice and truth are being hounded and arrested. War is on against Adivasis. The state is at war with its own citizens. Are the soldiers camping there to protect Adivasis? They are there to seize assets for the rich. This is a full-fledged war against the Adivasis. Gompad is an example.”

Himanshu added, “The court has stated that six persons who were witness had not identified the assassins. These six individuals were abducted by police in unregistered vehicles. If the six were held captive by the police for six months, and were also threatened before making their statement, one can understand what they will say in their statement. Why is the court not looking into this, and why should the petitioner who filed it be fined?

“If I pay the fine, it will imply that I was wrong and the Adivasis were also wrong. Adivasis will travel to Delhi on behalf of the victims to demand answers from the Supreme Court and ask the Supreme Court: who will give them justice.”

On the role of judiciary, Prashant Bhushan, a senior lawyer, said, “The independence of judiciary is crumbling. It is bending down to the whims of the government. We must protest against this every time such things happen. This is an extremely ridiculous verdict, and a bogus case has been made against the activist who, in reality, raised the matter. The pattern of levying penalties is an arbitrary exercise of power.”

He added, “This represents grave dangers to the independence of judiciary. It is a matter of great concern that our high courts and the Supreme Court are watching as mute spectators as the democratic fabric of the country is being violated day in and day out. If we keep aside few cases like that of Zubair of Alt News where SC was exemplary, in most of the cases the SC has disappointed us.”    

Addressing the press conference, activist and author Nandini Sundar categorically said that earlier several benches of different courts have raised questions about the functioning of the police. But despite so many questions, victims have not been compensated and no FIR has been filed against the officials responsible. But now in 2022, we are told that the police are absolutely correct. This is contempt of people, Himanshu Kumar and the Supreme Court itself.

Bhim Army Leader, Chandrashekhar Azad, while expressing solidarity with Himanshu Kumar, said, “If Himanshu will go to jail, I will also go to jail. We will not bow down either before the government or the courts. We will fight till the end. I will also visit victims in Dantewada and will raise their voice and demand justice for them.”         

Activist Soni Sori said, “People in Bastar are being killed mercilessly and are being encountered. Atrocities against women are still going on; they are still being raped. If we fight for our rights, we are being labelled as Naxals. It is not about money and fine but for weakening the fight for Adivasis. Victims and other social activists will approach the new tribal President to demand justice for them.”

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