Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Y.K. Sinha (Information Commissioner) while forwarding the present case to UP State Information asked for the disposal of the same as the information sought is regarding the number of encounters and number of people who had died in such encounters from April 2017 to May 2018 in Uttar Pradesh.

The present application was filed seeking the number of encounters and number of people who had died in encounters in Uttar Pradesh during April 2017 to May 2018.

Details of persons that were killed in encounters from 2012 to May 2018:

a. Name of the person killed b. Caste c. District d. Thana e. Date of Encounter f. Name of the officer carrying out the Encounters and his caste g. Details of the provisions of IPC under which charges were leveled against the deceased.

All of the above information had been sought from the PIO, but no information was received even after the first appeal and thereafter, the present second appeal was filed.

The appellant had prayed that the correct jurisdictional authority be determined which would provide him the information sought as the application had been transferred several times but till date, no response was received.

Thus, the Commission on noting the above, stated that custodian of the information was the UP State Government. Since the subject matter falls outside the purview of the Central list and pertains to the State of Uttar Pradesh, the Registrar of this Commission is directed that the aforesaid case be forwarded to the UP State Information Commission, Lucknow. [Gajender Singh Yadav v. PIO/Mo/Home Affairs, 2020 SCC OnLine CIC 83, decided on 14-02-2020]

Legislation UpdatesNotifications

In furtherance to the Government of India’s policy of zero tolerance for crime and in an endeavor to fast track the dispensation of justice, the Ministry of Home Affairs (MHA) has taken steps to enhance and streamline the process of international mutual legal assistance in criminal matters.

The MHA has issued Revised Guidelines for Mutual Legal Assistance in Criminal Matters in December 2019. The revised guidelines can be accessed here.

The revised guidelines provide step-by-step guidance to the investigation agencies for drafting and processing Letters Rogatory / Mutual Legal Assistance Requests and Service of Summons, Notices & other Judicial Documents. By incorporating various legal and technological developments in recent years, it aims to make the documentation in this regard more precise and focused as well as compliant with International requirements.

The guidelines have also taken into account the concerns raised by various courts for prompt and timely responses in the service of documents on persons residing abroad. As an initiative, the revised guidelines have provision for service of documents on authorities of foreign country preferably within 10 days of receipt of request in respect of offences committed against women and children.

Training in mutual legal assistance in criminal matters has also been taken up for investigators, prosecutors and judicial officers.

The transnational nature of crime and the digital explosion has blurred geographical boundaries for criminal activities.  The availability of evidence and criminals outside the sovereign jurisdiction of countries has necessitated the transformation of scope and nature of the conventional investigation.

India has entered into Mutual Legal Assistance Treaties/ Agreements with 42 countries and is a signatory to various international conventions i.e. UNCAC, UNTOC, etc. The Ministry of Home Affairs (MHA) is the designated ‘Central Authority’ for India. Generally, assistance is sought and received in the form of Mutual Legal Assistance Requests/Letters Rogatory and Service of Summons/Notices/Judicial documents on persons residing abroad.

In order to streamline the process of rendering/ seeking such assistance, MHA had issued guidelines regarding investigation abroad & issue of Letters Rogatory (LRs) in 2007 & regarding Service of Summons/Notices/ Judicial process on the persons residing abroad in 2009.

Over the decade, there have been substantial changes in International Cooperation based on new legislation, regulations & conventions and amendments in procedural laws all over the world including India. These changes necessitated the need for a comprehensive review of existing guidelines to keep them abreast of the modern era’s requirements.

Ministry of Home Affairs

[Press Release dt. 08-01-2020]

[Source: PIB]

Hot Off The PressNews

As reported by Economic Times, the Ministry of Home Affairs in consultation with the Bureau of Police Research and Development is considering amendments to the criminal laws of the country. The laws under consideration for amendment are Penal Code, 1860, Code of Criminal Procedure, 1973 and Evidence Act, 1872.

Some of the proposals being looked at are:

  1. Diluting the right of appeal to avoid inordinate delays in certain cases, like the 2012 Nirbhaya gangrape case, where the convicts are using legal remedies to seek relief from capital punishment. A ministry official clarified that any amendments to CrPC or revision process would be legally examined as the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 confers to the Supreme Court the power to hear an appeal from any judgment, final order or sentence in a criminal proceeding of a high court for certain cases.
  2. Adopting certain features of the inquisitorial system which is followed in Germany and France to make the current adversarial system more effective. For example, in the inquisitorial system, the investigation is supervised by the judicial magistrate which leads to a higher rate of conviction
  3. Classifying crimes as blue-collar, white-collar, red-collar, green-collar and black-collar crimes under Penal Code, 1860 to equip the police to deal with complex dynamics of internal security.
  4. Setting up modus operandi bureaus at national and state levels to study the technique of crimes and mentality of criminals.
  5. Setting up of National Police University and Forensic Science University with affiliated colleges in every state. This was suggested by Home Minister, Amit Shah to create skilled manpower to tackle complex cases with advanced forensic capabilities instead of the use of third-degree and torture to solve cases.

A home ministry official said that the new laws should be in accordance with the democratic aspirations of people and provide speedy justice to women, children and weaker sections of society. Suggestions have been sought from all states and union territories, the official added.

[Source: Economic Times]

Hot Off The PressNews

Union Minister of State for Home Affairs, Shri Nityanand Rai, in a written reply to a question regarding details on mob lynching cases, in Lok Sabha today, said that the National Crime Records Bureau (NCRB) does not maintain data with respect to mob lynching. However, the Ministry of Home Affairs (MHA) has issued advisories to States and UTs, from time to time, to maintain law and order and ensure that any person who takes the law into his/her own hand is punished promptly as per law.

The Minister informed that advisories dated 23.07.2018 and 25.09.2018 were issued to the State Governments/UT Administrations for taking measures to curb incidents of mob lynching in the country. In addition to this, the Government, through audio-visual media, has also generated public awareness to curb the menace of mob lynching. The Government has also sensitized the service providers to take steps to check the propagation of false news and rumours having the potential to incite mob violence and lynching.

Shri Rai stated that an advisory dated 04.07.2018 was issued to the States and UTs by MHA, to keep watch on circulation of fake news and rumours having the potential of inciting violence, take all required measures to counter them effectively and to deal firmly with persons taking law into their own hands. Further, the Ministry has also issued an advisory on 09.08.2016 to all States/UTs for taking prompt and strict action against miscreants who take law into their own hands in the name of protection of cow.

‘Police’ and ‘Public Order’ are State subjects under the Seventh Schedule to the Constitution of India and State Governments are responsible for prevention, detection, registration and investigation of crime and for prosecuting the criminals through their law enforcement agencies, Shri Rai added.

Ministry of Home Affairs

[Press Release dt. 19-11-2019]

[Source: PIB]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Chief Information Commissioner Sudhir Bhargava allowed a second appeal for information regarding mercy petition on the grounds that file notings and correspondence sent and received by Ministry of Home Affairs does not form a part of ministerial advice.

In the instant case, an application was filed by the appellant under Right to Information Act, 2005 (RTI Act) before Central Public Information Officer (CPIO) to seek information on several points pertaining to mercy petition of her son, who was a death row convict lodged at Yerwada Central Jail. The appellant filed a second appeal as CPIO denied information under Article 74(2) of the Constitution of India and there was no response to her first appeal.

Learned counsel, Ragni Ahuja, on behalf of the appellant contended that information pertaining to ministerial advice is protected under Article 74(2) of Constitution of India. But since the information sought by the appellant did not pertain to Article 74, she had been wrongly denied the said information. The counsel relied on the judgment of the Supreme Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1, where the Court allowed the disclosure of not only correspondence but also notings by high constitutional functionaries, so the appellants requested the commission to direct the respondent to provide complete information. 

Learned counsel, Hari Mohan Jha, on behalf of the respondent contended that recommendations along with all documents lead to the formation of ministerial advice to the President of India is privileged under Article 74(2) of the Constitution and the same cannot be disclosed under RTI Act. The counsel relied on the case Union of India v. Central Information Commission, 2009 SCC OnLine Del 879, in which the commission gave directions for disclosure of information relating to correspondence between the former President of India and the then Prime Minister relating to Gujarat riots was set aside.

The Commission opined that file notings and correspondence received or sent by Ministry of Home Affairs pertaining to appellant’s mercy petition does not form a part of the ministerial advice to the President, and the file notings of the mercy petition filed could be provided to the appellant. The Commission observed that the file noting and the correspondence contained the names of the officials recording the same, the disclosure of which would endanger the life or physical safety of those officials and hence its disclosure was exempted under Section 8(1)(g) of the RTI Act. Relying on S.R. Bommai v. Union of India, (1994) 3 SCC 1, it directed the respondent to provide the information sought after severing all the names and other references which could reveal the identities of the public officials concerned.[Ujwala Kokde v. CPIO, Second Appeal No. CIC/MHOME/A/2017/609431, decided on 12-06-2019]

Supreme Court

Supreme Court: In a major development with regard to the ongoing struggle between the Government of National Capital Territory of Delhi, the Lieutenant Governor and the Union of India with regard to the Notification issued by the Ministry of Home Affairs dated 21.05.2015, which directed the Lieutenant Governor of the NCT of Delhi, to exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President as per the provisions of Articles 239 and 239AA (3)(a) of the Constitution, in respect of matters connected with ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’, the Division Bench of A.K. Sikri and U.U. Lalit, JJ., observed that the opinion of the Delhi High Court in Anil Kumar v. GNCT, Delhi, Bail Appln. 878/2015, terming the MHA Notification as ‘suspect’ was tentative in nature and was not a decision upon the validity of the Notification as the Union of India was not a party to the suit. The Court further added that the Delhi High Court can deal with the issue separately without being influenced by the opinion given in Anil Kumar case.

In addition to the Supreme Court’s above-mentioned Order, the Delhi High Court while hearing upon the writ petition W.P.(C) 5888/2015 filed by the GNCT of Delhi challenging the impugned Notification issued by Ministry of Home Affairs, sought to end the stalemate situation prevailing with regard to the authority of the Lieutenant Governor in matters of transfer and posting of public servants. Rajiv Shakdher, J. passed an interim Order stating that the Lieutenant Governor would be authorized to deliberate and take decisions regarding the transfer and posting of public servants and can seek further clarifications upon the matter from the Council of Ministers. The matter shall be further heard by the High Court on 11.08.2015. Union of India v. Government of NCT of Delhi, 2015 SCC OnLine SC 526, decided on 29.05.2015


Hot Off The Press

The Central Government in exercise of the powers conferred by Section 5 (1); of the Unlawful Activities (Prevention) Act, 1967 constituted the “Unlawful Activities Tribunal” consisting of Hon’ble Mr. Justice G.P. Mittal, a sitting Judge of the High Court of Delhi for the purpose of adjudicating whether or not there is sufficient cause for declaring the Liberation Tigers of Tamil Eelam as an ‘Unlawful Association’.

To read the full Notification, click here