Can A Kashmir CJM Defy SC? The Curious Case Of Criminal Defamation Against Madhu Kishwar

On 26 August, the Chief Judicial Magistrate (CJM) of Srinagar, Aijaz Ahmad Khan, issued a non-bailable arrest warrant against Manushi editor Madhu Kishwar, currently national professor at the Indian Council of Social Science Research. This was meant to be punishment for Kishwar’s non-appearance in the Srinagar CJM’s court on that day in a defamation suit filed against her by Shujaat Bukhari, owner-editor of Rising Kashmir, in December 2016.

The arrest warrant is contrary to a Supreme Court order of 24 August, whereby the highest court had exempted Kishwar and her lawyer from physical appearance in the Srinagar court. This action by the court follows three other questionable orders issued from the start of the case in December 2016.

Since the CJM’s orders against Kishwar went against well-defined guidelines laid down by the Supreme Court regarding the personal appearance of the accused in defamation cases, Kishwar had approached the Supreme Court for relief, and got this order dated 24 August 2017:

“Having regard to the facts and circumstances of the case, we direct that the petitioner may be permitted to participate in the proceedings by video conferencing from a Delhi court. If video conferencing facility is not available in the district court in question then the proceedings may take place at any appropriate nearest place or court as per the direction of the Chief Justice of the High Court.”

This order was handed over to the CJM, Srinagar, at the hearing held on 26 August by a Srinagar-based lawyer who represented Kishwar on that day. And yet the CJM, Khan, passed the following order in Urdu in brazen violation of the Supreme Court order:

“Complainant with his advocate was present. Accused was absent. Mulzimkoba-ijra warrant giraftari. Bila-wajah zamanat talab.”

But first, some background. The cause of this defamation case is dubious. Bukhari, the owner-editor of a separatist-leaning Kashmiri paper, had filed a criminal defamation suit against Kishwar for four tweets in which the latter had commented on the pro-Pakistan slant of Kashmiri newspapers, including Rising Kashmir. Here are the tweets that gave rise to the criminal defamation case.

These tweets became the basis of a criminal defamation suit against Kishwar. It is noteworthy that Bukhari has not yet denied the allegation that he supports pro-secessionist groups. Rather, he has taken objection to the implication that he has taken government money for his newspaper. Even if formally establishing payment of underhand money is difficult, there is enough circumstantial evidence to establish that Bukhari seeks and gets government money. Here are a few samples showing large advertisements issued by the Jammu and Kashmir government to Bukhari’s paper.

Some more government ads in Bukhari’s newspaper:

Bukhari has not only sought and regularly received ads from the state government but also from the Directorate of Advertising and Visual Publicity.

Bukhari did not respond to tweets from Kishwar openly challenging him to clarify his position.

Srinagar CJM’s legally questionable orders

These facts make it clear that Bukhari’s case against Kishwar rest on weak ground. And yet, on the very first day when Bukhari’s case came up for admission, the Srinagar CJM issued a bailable warrant against Kishwar as the very first step. Kishwar says she came to know of it only through newspapers in Kashmir since the warrant did not reach her in time for the first hearing on 24 December 2016. Kishwar did not get support from the mainstream media, dominated as it is by left-leaning “liberals”. Freedom of speech means something to them only if one of their kind is involved.

As per the law – whether under the Ranbir Penal Code of Jammu and Kashmir or the Code of Criminal Procedure (CrPC) – a magistrate can only issue summons as a first step. A warrant can be issued in cases of heinous crimes meriting life imprisonment or death penalty. Issuing warrants against Kishwar before she was summoned and given a hearing is legally tenuous.

In a defamation case which allows for a maximum of two years of imprisonment and/or a fine, warrants cannot be issued unless and until the accused fails to or refuses to appear before the court despite summons.

As per the warrant issued by the CJM, Kishwar was ordered to appear personally before him in Srinagar and furnish a bond or else face arrest. The date of appearance in Srinagar was reported to be 24 December, but since she had not received the warrant or summons, Kishwar did not see any need to appear in Srinagar. Nor did Kishwar have a copy of the order, which she would need to challenge the validity of the order.

Since Kishwar had tweeted that she had not received the warrant which was supposed to have been served on her, the judge noted this fact of non-execution of warrants and directed the Registry to issue a fresh bailable warrant against Kishwar to be executed by the Tees Hazari Court in Delhi. The next hearing was listed for 28 January. This was the second questionable order even before the trial began. However, worse was still to come.

In the first week of January, Kishwar had undergone a major surgery for the removal of a brain tumour. Therefore, she was not medically fit to travel to Srinagar. But she complied with the order issued by the CJM and instructed her lawyer, Ravi Sharma, to appear on her behalf. Her advocate brought to the notice of the Court that as per Section 4(r) read with 4(s) of the CrPC, Svt 1989, a defamation case is a summons case. As per the guidelines issued by the Supreme Court, a summons case does not require the presence of the accused during trial. He/she can be duly represented by his/her lawyer throughout the trial. Since the lawyer for Bukhari took time to file objections to the submissions, the court adjourned the matter for 16 February.

Established law regarding personal appearances

On 16 February, Kishwar’s advocate, Sharma, again flew to Srinagar to appear on her behalf and relied on the rationale of the law laid down by the apex court in Bhaskar Industries Ltd vs Bhiwani Denims Ltd (2001), where the Supreme Court inter alia held that in summons cases, personal appearance of the accused is not mandatory and should be dispensed with where the accused is a woman, or where the accused resides beyond the jurisdiction of the court where the complaint has been filed, or in cases where the accused is a senior citizen and/or is ailing.

Kishwar was eligible for exemption from personal appearance since her condition fulfilled all the three essentials laid down by the Supreme Court judgement. In compliance with prescribed guidelines of the Supreme Court, Kishwar submitted an undertaking to the Srinagar CJM that she would not dispute her identity and would ensure the presence of her counsel at each hearing. It was also submitted by her lawyer that no adjournment shall be sought on Kishwar’s behalf and that her lawyer shall be present in court on each and every date.

After hearing the arguments, the CJM reserved the order on said application seeking permanent exemption from appearance. However, on 20 March, the CJM passed a 13-page order without referring to the Supreme Court order and insisted that Kishwar must appear before him on 3 April in order to get exemptions from further hearings.

That law and order is not normal in Srinagar needs no repetition. The situation makes it inadvisable for her to risk life and limb by turning up in the Srinagar court. In her submissions to the CJM, Srinagar, Kishwar had pointed out that given the violence-ridden, politically volatile atmosphere in Kashmir, where even policemen and army and security personnel were being murdered on a regular basis by stone-pelting lynch mobs and in terrorist attacks, for her to appear in a Srinagar court was fraught with danger. Despite having Z Plus security, Jammu and Kashmir Chief Minister Mehbooba Mufti had sought the cancellation of a by-election in her family stronghold because she could not risk campaigning there. In such a scenario, it is hardly surprising that Kishwar, an ordinary citizen without any security, felt unsafe about travelling to Srinagar when her opponent, Bukhari, was supporting the forces backing separation.

It is noteworthy that apart from close links with pro-Pakistani separatists, Bukhari enjoys great influence even within the state government as his brother is a senior minister in Mufti’s cabinet, and several of his relatives are placed in high government positions.

Moreover, many members of the Srinagar Bar Association are openly pro-Pakistan and pro-secession. Therefore, just showing up in that court is fraught with high risk given the atmosphere of unrest and mob violence in the Valley.

To sum up: Kishwar has not refused to cooperate with the court. Her lawyer was appearing on each date, and assured the court that he would not seek adjournments. In any case, Kishwar had not committed any ‘heinous crime’ meriting arrest warrants at the very date of admission of the case. It is also worth noting that while criminal defamation law remains valid in India, most democratic countries have scrapped it since politically powerful persons tend to misuse it against their critics.

Net-net, despite her weak health condition (after having undergone a major surgery in January) and clear instructions from the Supreme Court in such matters, the CJM, Srinagar, could not be persuaded to grant her exemption from personal appearance.

Aggrieved by the appearance of possible bias in favour of Bukhari, Kishwar was compelled to make her case before the High Court of Jammu. The High Court, in its order of 31 May, clearly said, “the CJM should have allowed the application filed by her (Kishwar)...” Moreover, the High Court also made a remark regarding non-compliance with the binding precedent on the subject in the following words: “The ratio is Bhasker Industries Limited squarely applies to the case on hand…” Accepting Kishwar’s reliance on the binding precedent, the Court added: “Learned CJM, however, entered into unrequired arena of interpreting the judgement of the Supreme Court…”

Although the High Court of Jammu did not allow for the transfer of the case from Srinagar, it did provide partial relief to Kishwar by granting permanent exemption from personal appearance and modified the CJM’s order to that effect.

However, by this time the law-and-order situation in Srinagar had further deteriorated with stone-pelting mobs and terrorist attacks taking lives daily. Therefore, the Jammu-based senior advocate, Sunil Sethi, who represented Kishwar before the Jammu court, also sent the following letter expressing his inability to appear before the CJM, Srinagar, due to the prevailing law-and-order situation:

“… I show inability to conduct the trial before the Ld. CJM, Srinagar, in view of the deteriorated law and order problem in Srinagar for the last two months and particular reference to the location and topography of the Court of Ld. CJM, Srinagar. It is fraught with risk to go to the Court particularly in view of the nature of allegations in the matter. Because of safety concerns of my team, it will not be possible for me or my team to conduct the trial in the present scenario before the Ld. CJM, Srinagar.”

Coming from a senior member of the Bar, his comments speak volumes for the real nature of the physical threat to Kishwar.

The Supreme Court finally comes to the rescue

Since the High Court failed to appreciate the risk it would pose to Kishwar’s lawyer to appear in Srinagar, she had to move the Supreme Court. Taking notice of Kishwar’s apprehension, the Supreme Court gave an order on 24 July directing that neither Kishwar nor her lawyer need to appear in Srinagar court. They may be allowed to participate in the proceedings through video conferencing from a Delhi court.

Yet, in apparent disregard for the Supreme Court order, the CJM, Srinagar, issued a non-bailable warrant against Kishwar on 26 August for failing to appear before the court. The 26 August order by the CJM, Srinagar, can thus be interpreted as ‘Contempt of the Supreme Court’, no less. It sends an arrogant message to the highest judiciary and the people of India that as far as Kashmir is concerned, the laws of India or the writ of the Supreme Court do not matter.

Kishwar stands by her statements

Kishwar says her tweets about Bukhari were based on sound information. She says that the late Dileep Padgaonkar, who headed the United Progressive Alliance government-appointed Kashmir Committee, had personally told her that Bukhari asked for and got money from Indian agencies. Much before that, in 2004, the then chief minister, Mufti Mohammad Sayeed, had also told Kishwar that Peoples Democratic Party (PDP) was helping Bukhari set up his own paper. Bukhari had also petitioned the DAVP to raise the ad rates for his paper.

In addition, two different army generals who had been posted as GOCs (General Officer Commanding), Kashmir, at different points in time had also told Kishwar that Bukhari was among the journalists successfully “cultivated” by the army. Kishwar claims that one of the GOCs specifically told her that Bukhari had sought, and obtained, money from the army to run his paper. The second GOC even mentioned Bukhari’s name in his book on Kashmir, as someone the army nurtured.

Bukhari has gone to Dubai and other places along with army generals for Track Two Dialogues with Pakistan at the expense of the Indian government. But that does not stop him from advancing the cause of separatism through his paper and in his speeches. It is also open knowledge that he visits Pakistan very frequently.

Kishwar says she has also been told by reliable, highly placed PDP sources in Kashmir that Bukhari takes money from Indian agencies and curries favour with the army in private as a cover against his separatist links. Some months ago, journalist Tufail Ahmad had tweeted that a paper in Kashmir had received Rs 22 crore from Indian agencies.

When Kishwar phoned Ahmad and asked him to identify the paper, he mentioned Rising Kashmir. Even a cursory reading of his paper shows that the reportage as well as editorials are heavily tilted in favour of pro-Pakistani groups and separatists, including the Burhan Wani type of self-proclaimed jihadis.

Is this why the “secular” media is silent over Kishwar’s case even while pleading “free speech” on behalf of those who talk of “Bharat tere tukde tukde honge…”?