Case BriefsForeign Courts

Islamabad High Court: The Bench of Athar Minallah, C.J., Aamer Farooq and Miangul Hassan Aurangzeb, JJ., while observing that the right to a fair trial is the foundation of the rule of law and criminal justice system and its essence is to assure to every party that he or she, would be treated fairly and justly by an impartial and independent judicial forum; held that another opportunity should be extended to the Government of India to consider taking appropriate measures to ensure effective compliance with the judgment of the International Court of Justice wherein it had ordered Government of Pakistan to review and reconsider Kulbhushan Jadhav’s conviction and sentence and provide him with consular access. The Court also extended its assurance to Jadhav that his rights, especially that of fair trial is a vital factor while reviewing his sentence.       

Following the decision of the ICJ, the Govt. of Pakistan had promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020 to meet its obligations regarding giving effect to the judgment. As per Attorney General Khalid Javed Khan’s Report, Jadhav had reiterated his earlier stance and has preferred to pursue the remedy of clemency instead of invoking his right under the Ordinance of 2020. Attorney General further reported that the Government of India has been duly informed regarding the proceedings of this Court held on 03-08-2020 in pursuance of which concerned officials gave a detailed briefing to Jadhav regarding his right to avail the statutory remedy provided under the Ordinance of 2020. It was noted that the Govt. of India’s response is awaited.

Perusing the existing the scenario, the Bench observed that, “We are of the opinion that these proceedings and judicial review, on the basis of the judgment of the International Court, may not be meaningful and effective if Commander Jadhav and the Government of India decide not to exercise the course of action highlighted in the judgment of the International Court”. Concluding the Order and fixing the next proceeding on 06-10-2020, the Bench issued following directions to ensure effective review and reconsideration so as to give effect to the judgment of the International Court-

  • Attorney General shall ensure that copy of this order is provided to Jadhav
  • of Pakistan shall once again convey the orders passed in this petition to the Govt. of India to enable the latter to consider taking appropriate measures in order to ensure compliance with the judgment of the ICJ.
  • The Registrar of the Court to send to the learned amici curiae copies of the petition and documents placed on the record, so that they can assist this Court on the status of compliance with the judgment of the ICJ in the event that Jadhav or the Govt. of India decide against availing the remedy provided under the Ordinance of 2020

[Secretary, Ministry of Law and Justice v. Federation of Pakistan, Misc. Petition No. 01 of 2020, decided on 03-09-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has refused to review the 2017 order by the bench of A.K. Goel and U.U. Lalit, JJ which found Vijay Mallya guilty of contempt of court in the case filed by a consortium of banks that sought relief from the Court after Vijay Mallya, who owes more than Rs. 9000 crores to the banks, instead of repaying his debts, transferred a huge sum of $40 million to his children.

The Court had in 2017 said that Vijay Mallya is guilty of disobeying the Orders passed by the Supreme Court in not disclosing full particulars of the assets after it was alleged by the banks that said transfer was not only in contempt of the Orders passed by the Karnataka High Court but was also an attempt to subvert the Course of Justice by diverting the funds to shield them from ongoing recovery proceedings.

The High Court of Karnataka had passed an interim order restraining the respondent from transferring, alienating, disposing or creating third party rights in respect of movable as well as immovable properties belonging to them until further. Hence, in the light of the transfer of a huge sum to the children of Vijay Mallya, the Court also held him guilty of violating the express Orders of Restraint passed by the High Court of Karnataka.

Hot Off The PressNews

Supreme Court: A bench headed by Justice Arun Mishra, JJ has reserved its order on the review petition filed by former Maharashtra chief minister, Devendra Fadnavis, seeking modification of it’s earlier order directing him to face the trial for allegedly not disclosing two pending criminal cases against him in his 2014 poll affidavit.

The court bench, headed by the then Chief Justice of India (CJI) Ranjan Gogoi, in its judgement in Satish Ukey v. Devendra Gangadharrao Fadnavis, 2019 SCC OnLine SC 1275, last year on October 1, had set aside the Bombay High Court order for Fadnavis’s alleged concealment of criminal cases against him in his 2014 election papers. It had said,

“we unhesitatingly arrive at the conclusion that the order of the learned trial Court upheld by the High Court by the impugned judgment and order dated 3rd May, 2018 is legally not tenable and the same deserves to be set aside which we hereby do. The complaint of the appellant will be considered afresh by the learned trial Court from the stage where it was interdicted by the order dated 30.5.2016.”

The Court, hence, held that the information to be furnished under Section 33-A of the Representation of the People Act, 1951 includes not only information mentioned in clauses (i) and (ii) of Section 33-A(1), but also information, that the candidate is required to furnish, under the Act or the Rules made thereunder and such information should be furnished in Form 26, which includes information concerning cases in which a competent Court has taken cognizance (Entry 5(ii) of Form 26). This is apart from and in addition to cases in which charges have been framed for an offence punishable with imprisonment for two years or more or cases in which conviction has been recorded and sentence of imprisonment for a period of one year or more has been imposed.

The Bombay High Court had earlier dismissed the plea filed by one Satish Ukey, seeking annulment of Fadanavis’s election to the Maharashtra assembly alleging non-disclosure of all pending criminal cases against him. Ukey had later approached the Top court challenging the Bombay High Court’s order.
In his appeal, Ukey had said that Fadnavis while submitting his nomination from South West assembly constituency in 2009 and 2014 had allegedly suppressed the information about two pending criminal cases against him.

(With inputs from ANI)

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction. The bench had, on February 6, 2020, reserved it’s order on the said legal issue while hearing the Sabarimala reference after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

The Court also framed 7 seven questions that are to be decided by the 9-judge bench in the Sabarimala reference and has proposed a day-to-day hearing in the matter from February 17, 2020. The issues to be heard relate to:

  • What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
  •  What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
  • Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
  • What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
  • What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
  • What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
  • Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing. The Counsels were, however, unabale to reach a consensus on the issues to be argued. 

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, 2020 SCC OnLine SC 158 , decided on 10.02.2020]

Also read:Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has reserved it’s order on the legal issue of whether the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction. The bench will pronounce the order on February 10, 2020 and will accord a day-to-day hearing from February 12, 2020 on issues relating to discrimination against women at various places of worship including the Sabarimala temple.

Solicitor General Tushar Mehta submitted before the Court that the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was right in referring the questions of law to the larger bench. He said,

“As custodian of fundamental rights, it was the duty of the court to lay down an authoritative pronouncement on these questions of law.”

Senior advocate Fali S Nariman opposed the submission and said that only the President can ask questions of national importance, not the court.

Earlier, the bench had agreed to hear the argument on the issue whether the court can refer questions of law to a larger bench on a review petition after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

In our report dated 14.11.2019, we had pointed out that the order passed by the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was debatable as involved a reference to a larger bench in a review petition. We wrote,

“If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.”

The bench is hearing matters relating to discrimination against women in various religions including Kerala’s Sabarimala temple, mosques, the practice of female genital mutilation in the Dawoodi Bohra community and Parsi women married to non-Parsi men being barred from its holy fire temple.

Overlapping or related issues pending before the Supreme Court

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

(With inputs from News18)


Also read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: A bench headed by Justice NV Ramana has agreed to hear Central government’s appeal against Delhi High Court order, which rejected its plea to separately execute the four convicts in the Nirbhaya gangrape and murder case. The Court slated the matter for hearing on Friday after the Additional Solicitor General KM Nataraj, appearing for the Central government, mentioned the matter before the Court for an urgent hearing.

The Centre had challenged in the Supreme Court Delhi High Court’s order rejecting its plea for separately executing the four convicts in the case. The government, in the Supreme Court, contended that under the Delhi Prison Rules of 2018 the pendency of legal remedies or mercy petitions of other co-convicts would have no bearing on the fate of a convict whose plea for mercy has already been rejected. It said that the 2018 Rules does not prohibit the execution of death sentence of co-convicts, one by one, on the rejection of their respective mercy petitions.

Earlier, Solicitor General Tushar Mehta, had told the Delhi High Court that the convicts were playing with the judiciary. He said,

“there is a deliberate, calculated and well thought of design by the Nirbhaya gangrape and murder case convicts to “frustrate mandate of law” by getting their execution delayed.”

The Centre, in its plea before the Supreme Ccourt, contended that deferring the execution of death sentence of all the four convicts, specifically when Mukesh’s mercy plea has already been dismissed by the President, has led to a gross miscarriage of justice to the victim’s family as well as the society as a whole.

Delhi High Court had, on Wednesday, granted a week’s time to the four death row convicts to avail all legal remedies available to them and said that the convicts cannot be hanged separately since they were convicted for the same crime. The High Court had passed the order while hearing petitions filed by the centre and Tihar jail authorities challenging the Patiala House Court’s order which had stayed “till further order” the execution of the four convicts in the matter. The Delhi High Court had held that the 2018 Rules observe that pendency of any application filed by one convict would necessarily require the postponement of the death sentence of all his co-convicts, even those whose mercy plea had
been rejected.

Meanwhile, President Ram Nath Kovind on Wednesday also rejected the mercy petition of the third convict, Akshay Thakur, in the gangrape and murder case, which took place on the intervening night of December 15-16, 2012.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

The Court had on May 5, 2017, upheld the death sentence of all the four convicts in the brutal December 16 gangrape and murder case. The Court, while dismissing the appeal of the four convicts, had said that the crime fell in the rarest of rare category and “shaken the conscience of the society.”

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

Meanwhile, a Delhi Court has postponed the execution of Mukesh Kumar Singh, Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh till further orders.

Hot Off The PressNews

Supreme Court: A nine-judge Constitution bench of the Supreme Court will hear on February 6 argument on the issue whether the court can refer questions of law to a larger bench on a review petition after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

CJI asked,

“Are you saying that when hearing the review of one judgment [Sabarimala in this case], we cannot refer such larger questions to a larger Bench?”

To which Mr. Nariman responded,

“Yes, that is absolutely right. It will be outside your jurisdiction to do that,”

Finding a formidable point in Mr. Nariman’s arguments, CJI said that the nine-judge Bench would not “abort the hearing” now but the objections raised by Mr. Nariman would be framed as an “issue” to be decided by the Bench.

In our report dated 14.11.2019, we had pointed out that the order passed by the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was debatable as involved a reference to a larger bench in a review petition. We wrote,

“If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.”

The bench is hearing matters relating to discrimination against women in various religions including Kerala’s Sabarimala temple, mosques, the practice of female genital mutilation in the Dawoodi Bohra community and Parsi women married to non-Parsi men being barred from its holy fire temple.

Overlapping or related issues pending before the Supreme Court

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.


Also read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ has refused to review it’s order dated 21.01.2020 wherein it had dismissed the SLP filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case, “reagitating” the plea of juvenility. The order of the Court read,

“We have perused the Review Petition and the connected papers carefully and are convinced that the order, of which review has been sought, does not suffer from any error apparent warranting its reconsideration.”

The Court , in the order dated 21.01.2020, had said,

“once a convict has chosen to take the plea of juvenility before the learned Magistrate, High Court and also before the Supreme Court and the said plea has been rejected up to the Supreme Court, the petitioner cannot be allowed to reagitate the plea of juvenility by filing fresh application under Section 7A of the JJ Act.”

Pawan Kumar had  contended that he was a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 at the time of commission of the offence and that the same is apparent from the School Leaving Certificate. He claimed that as per his records, his date of birth is 08.10.1996 and therefore, on the date of alleged incident i.e. 16.12.2012, the petitioner was aged only 16 years 02 months and 08 days.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

The Court had on May 5, 2017, upheld the death sentence of all the four convicts in the brutal December 16 gangrape and murder case. The Court, while dismissing the appeal of the four convicts, had said that the crime fell in the rarest of rare category and “shaken the conscience of the society.”

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

Meanwhile, a Delhi Court has postponed the execution of Mukesh Kumar Singh, Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh till further orders. The execution was scheduled for tomorrow i.e. 01-02-2020.

[Pawan Kumar Gupta v. State of NCT of Delhi, REVIEW PETITION(Crl.) No. 59/2020, decided on 31.01.2020]

Hot Off The PressNews

As reported PTI, Senior Advocate Rajeev Dhavan, who appeared for Muslim parties in the Ram Janmabhoomi-Babri Masjid title dispute case has been sacked from the same on the reasons of him being unwell.

Sr. Advocate Dhavan posted on his Facebook that,

“Just been sacked from the Babri case by AOR (Advocate on Record) Ejaz Maqbool who was representing the Jamiat. Have sent formal letter accepting the ‘sacking’ without demur. No longer involved in the review or the case”

 Jamiat Ulema-e-Hind, headed by Maulana Arshad Madani, on Monday filed a review petition challenging the Supreme Court’s Ayodhya verdict.

A plea seeking review of the verdict was filed in the apex court on Monday by Maulana Syed Ashhad Rashidi, legal heir of original litigant M Siddiq, and the Uttar Pradesh president of the Jamiat Ulama-e-Hind. It stated that “complete justice” could only be done by directing reconstruction of the Babri Masjid.


[Source: PTI]

 

Case BriefsSupreme Court

Supreme Court: In a ghastly case involving rape and murder of 2 children, the 3-judge bench of RF Nariman, Surya Kant and Sanjiv Khanna, JJ has refused to review their verdict in Manoharan v. State, (2019) 7 SCC 716, upholding  the conviction of the accused. In the said judgment, the bench had unanimously upheld the conviction, but gave 2:1 verdict on quantum of punishment.

While Nariman and Surya Kant, JJ awarded death penalty, Khanna, J did not think that this case was fit for a death penalty and hence, commuted it to imprisonment for life i.e. till convict’s natural life with a stipulation that he would not be entitled to remission under Sections 432 and 433 of the Code of Criminal Procedure, 1973.

FACTUAL BACKGROUND

  • In October 2010, accused Mohanakrishnan & Manoharan kidnapped a 10-year-old girl & her 7-year-old brother while they were preparing to leave for school.
  • The children were taken to a remote area and rape was committed on the girl.
  • Attempt was made to kill both the children by feeding them poisonous cow dung powder mixed in milk. However, the children took only a small amount of the milk and didn’t die.
  • The children were then thrown away alive in the Parambikulam-Axhiyar Project canal.
  • Both the accused were arrested but Mohanakrishnan was later shot dead in an encounter.

MITIGATING FACTORS CONSIDERED BY THE COURT IN THE REVIEW PETITION

Lack of adequate opportunity to place on record material/evidence of mitigating circumstances

After re-visiting the mitigating circumstances against aggravating circumstances, as well as a report commissioned by this Court during the course of appeal and submitted by the jail superintendent, the Court held that the conduct of the Petitioner is merely satisfactory and he has not undertaken any study or anything else to show any signs of reformation.

Backward socioeconomic circumstances

There is nothing to support the arguments that the accused is a helpless, illiterate young adult who is a victim of his socioeconomic circumstances. Far from being so, it is clear through the version of events that the accused had the presence of mind to craft his own defence and attempt to retract his confession through an elaborately written eleven page letter addressed to the Magistrate and had further received adequate legal representation.

Remorse

Accused’s advocate argued that the retraction letter shows that he stopped the co-accused from committing rape and this is evident of the fact that he has remorse which entitles him to commutation, if not acquittal. The Court, however, held that the retraction was extremely belated and only a defence to shield himself. Further, medical evidence has proved that rape was committed on the deceased girl. It is hence factually incorrect to state that the Petitioner prevented the co-accused from raping the girl and is nothing more than a belated lie at the end of the trial.

Young age and aged parents

Mere young age and presence of aged parents cannot be grounds for commutation. Such young age poses a continuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts.

Criminal Record

The Court refused to give leeway of the lack of criminal record, considering that the current crime was not just one offence, but comprised of multiple offences over the series of many hours.

The bench held that the present case is essentially one where two accused misused societal trust to hold as captive two innocent school-going children, one of whom was brutally raped and sodomised, and thereupon administered poison and finally, drowned by throwing them into a canal. It was not in the spur of the moment or a crime of passion; but craftily planned, meticulously executed and with multiple opportunities to cease and desist.

Nariman and Surya Kant, JJ, hence, held

“We are of the view that the present offence(s) of the Petitioner are so grave as to shock the conscience of this Court and of society and would without doubt amount to rarest of the rare.”

While Khanna, J agreed with his learned brothers on the dismissal of review petition and upholding of the conviction of the accused, on the question of sentence, he held,

“I do not see any good ground and reasons to review my observations and findings in the minority judgment.”

[Manoharan v. State, 2019 SCC OnLine SC 1433, decided on 07.11.2019]

Case BriefsInternational Courts

International Court of Justice (ICJ), Hague, Netherlands: A 16-Member Bench comprising of President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna ,Cancado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Jillani; pronounced the long-awaited verdict of a four day hearing in the Kulbhushan Jadhav Case unanimously with 1 dissenting opinion of the ad hoc Judge Gillani.

The present high-profile case, involving great significance for the Member States, India and Pakistan both, was carried on with keeping in mind the following facts:

Individual named Kulbhushan Sudhir Jadhav has been in the custody of Pakistani authorities. The circumstances of his apprehension remain in dispute between the Parties. According to India, Jadhav was kidnapped from Iran, where he was residing and carrying out business activities after his retirement from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Jadhav, whom it accuses of performing acts of espionage and terrorism on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory. Pakistan explains that, at the moment of his arrest, Jadhav was in possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these allegations.

India filed an application for the institution of the proceedings on 08-05-2017 against Pakistan on grounds of the alleged violation of the Vienna Convention on Consular Relations by Pakistan pertaining to Kulbhushan Jadhav’s detention and his trial. Jadhav was accused of performing acts of espionage and terrorism on behalf of India and further sentenced to death by a Military Court of Pakistan in 2017. Therefore, India contended that Pakistan breached Article 36 of Vienna Convention:

  • By not informing India, without delay, of the detention of Jadhav;
  • By not informing Jadhav of his rights under Article 36;
  • By denying consular officers of India access to Jadhav

On 18-05-2017, Court indicated the following provisional measures –

“Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.”

Further, Public Hearings of the said case were held from 18-02-2019 to 21-02-2019, in which India was represented by Deepak Mittal and Harish Salve, while Anwar Mansoor Khan, Khawar Qureshi presented arguments on behalf of Pakistan.

Claims made by India are as follows:

  • Relief by way of immediate suspension of death sentence
  • Relief by way of restitution in integrum by declaring the sentence of the military court arrived at, in brazen defiance of Vienna Convention rights under Article 36
  • Restrain and annul the decision of the Military Court of Pakistan
  • If Pakistan fails to annul its decision, then ICJ to declare it illegal and violative of International Law.

The objections placed by Pakistan in regard to the admissibility of India’s application are based on the following:

  • Abuse of process
  • Abuse of rights
  • Unlawful conduct

Court’s Analysis of the facts and contentions placed

ICJ notes that, Pakistan placed contentions in regard to the applicability of certain provisions of the Vienna Convention.

  • Pakistan argued that Article 36 of Vienna Convention does not apply in “prima facie cases of espionage”.
  • Customary International Law governs cases of espionage in consular relations and allows States to make an exception to provisions on consular access contained in Article 36.
  • Pakistan maintains that it is the 2008 Agreement on Consular Access between India and Pakistan rather than Article 36 of the Vienna Convention, which regulates consular access in the present case.

To all the above-stated contentions, Court concluded that the Convention is applicable in the present case, regardless of the allegations that Mr Jadhav was engaged in espionage activities.

Court infers that Pakistan did not inform Jadhav of his rights under Article 36, paragraph 1 (b), of the Vienna Convention, and thus concludes that Pakistan breached its obligation under that provision. In the Court’s view, there is no basis under the Vienna Convention for a State to condition the fulfillment of its obligations under Article 36 on the other State’s compliance with other international law obligations.

Therefore, the Court unanimously decided:

  • Application of the Republic of India is admissible.

Further, by a majority of fifteen votes to one, it was decided:

  • By not informing Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, Pakistan breached the obligations incumbent upon it under that provision.
  • India was deprived of the right to render the assistance provided for by the Vienna Convention to the individual concerned; Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of Vienna Convention on Consular Relations.
  • Pakistan deprived India the right to communicate with and have access to Jadhav to visit him in detention and arrange legal representation.
  • Pakistan is under obligation to inform Jadhav without delay regarding his rights to provide India consular officers access to him in accordance with Article 36 of VCCR.
  • Effective review and reconsideration of the conviction and sentence of Jadhav.[India v. Pakistan, General List No. 168, decided on 17-07-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of Hrishikesh Roy, CJ and A.K. Jayasankaran Nambiar, J. allowed withdrawal of a writ appeal opining that since the same pertained to rights of forest dwellers, the proper course would be a review against the writ petition which was disposed of hastily.

The present case pertained to rights of traditional forest dwellers. Mr K.S. Madhusoodanan, learned counsel appearing for the appellant submitted that while many reliefs were sought in the petition filed for rights of forest dwellers, and the counsel therein was making submission before the learned Judge only for interim relief, the entire case was disposed of without enabling the appellant (petitioner in the said writ petition) to make submission on other prayers. Thus, the Court had no opportunity to deal with other ten substantial prayers in the writ petition.

In such circumstances, Mr Madhusoodanan submitted that he may be permitted to withdraw the present appeal so that a review petition could be filed before the writ court for fresh consideration of the matter particularly when, neither the State nor the Central Government had occasion to file any counter affidavit in the writ petition. His submission was that when important rights for traditional forest dwellers is being espoused in the writ proceedings, it would be appropriate if prayers are considered after the counter affidavit(s) are placed on record, indicating the stand of the State and the Central Government.

In view of the aforesaid submissions, the Court dismissed the instant appeal as not pressed, and granted the appellant the liberty to file a review petition. [Adivasi Kanikkar Samyuktha Sangham v. Union of India, 2019 SCC OnLine Ker 817, Order dated 08-03-2019]

Hot Off The PressNews

Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has reserved verdict on a batch of petitions seeking review of its September 28, 2018 judgement that allowed women of all age groups to enter the Sabarimala temple in Kerala.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. The lone dissenting opinion in the matter was that of Justice Indu Malhotra, who said:

“the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.

(With inputs from PTI)

Case BriefsHigh Courts

Tripura High Court: The Bench Arindam Lodh, J. set aside petitioner’s suspension order in view of Rule 10(6) and (7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

Petitioner, a State Veterinary Officer (TVS, Grade V) was placed under suspension by order dated 12-04-2018. The seminal issue to be determined in the present petition was whether the suspension order could be continued even if not reviewed before the expiry of 90 days from the effective date of suspension in view of the rules mentioned above?

A. Bhowmik, Advocate appearing for the petitioner prayed for setting aside of the suspension order passed by the Joint Secretary, Animal Resource and Development Department, Government of Tripura.

The High Court noted that Rule 10(6) and (7) obligates the appointing authority to constitute a committee review whether the extension of suspension order is necessary. in the present case, no review committee was formed even after expiry of 6 months after the expiry of 90 days. Relying on Union of India v. Dipak Mali, (2010) 2 SCC 222 the Court held that in such cases the suspension order lapses after the period of 90 days. Further, it was clarified that the matter has to be reviewed before the expiry of 90 days from the date of suspension. In such view of the matter, petitioner’s suspension order was set aside.[Ankur Debnath v. State of Tripura, 2019 SCC OnLine Tri 19, decided on 08-01-2019]

Hot Off The PressNews

Supreme Court:  The Court said that it may not start the hearing on pleas seeking review of the Sabarimala verdict from January 22 , as Justice Indu Malhotra, one of the judges is on medical leave. Justice Indu Malhotra was the only woman judge of the five-judge constitution bench which had delivered the verdict in the Sabarimala case on September 28 last year. She was also the only judge who renderred a dissenting opinion in a 4:1 majority verdict.

The observation came after lawyer Mathews J Nedumpara mentioned the case and sought live streaming of hearing on the petitions seeking review of the apex court’s verdict allowing all women inside Sabarimala temple, on January 22.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. Justice Indu Malhotra, in her dissenting opinion said:

“the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.

(With inputs from PTI)

Case BriefsSupreme Court

“Society’s perspective is generally formed by the emotionally charged narratives, which need not necessarily be legally correct, properly informed or procedurally proper.”

Supreme Court: The Bench comprising of Kurian Joseph, Deepak Gupta and Hemant Gupta, JJ. partly allowed the appeals while modifying the death sentence to life imprisonment.

The present appeals in the case were filed against the order of the Chhattisgarh High Court which had confirmed the death sentence awarded by the Sessions Judge.

Factual matrix of the case draws a picture of the actual scenarios and events that happened and leads to the capital punishment to the appellant. In accordance with the facts of the case, appellant had entered the house of Anandram Sahu, Firanteen Bai, and Ratna Sahu and caused fatal injuries with a knife. Later, appellant entered the house of Durga Banchhor with a blood-stained knife while assaulting Meera Banchhor and inflicted grievous injuries.

For the above stated set of actions by the appellant, Sessions Court had convicted him for murder under Section 302 IPC, Section 307 IPC i.e. attempt to murder, Section 506(2) IPC for threatening to kill and house trespass under Section 450 IPC. For all the stated offences he was awarded death sentence in view of the case falling in the arena of “rarest of the rare” category. Further, High Court also confirmed the conviction, while stating that “aggravating circumstances in the present case outweighed the mitigating circumstances.”

The learned senior counsel for the appellant prayed that the death sentence imposed be commuted to imprisonment for life by putting forward his submissions.

The Supreme Court while laying down its decision stated that,

“High Court erroneously confirmed death penalty without correctly applying the law laid down in Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.”

Further, it stated that the highest punishment of death sentence in the present case does not fulfill the test of “rarest of rare case” where the alternative option is unquestionably foreclosed. Therefore, the Court held that the imposition of the death sentence was not the only option and hence the same needs to be modified to life imprisonment.“Till the time death penalty exists in the statute books, the burden to be satisfied by the judge in awarding this punishment must be high.” Appeals were partly allowed, commuting death sentence to life imprisonment.

Justice Kurian Joseph while delivering the judgment on behalf of the Court stated, “Having regard to the 262nd Report of the Law Commission that the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being ‘arbitrarily and freakishly imposed’ and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice. ”

He further observed, “It is also a matter of anguishing concern as to how public discourse on crimes have an impact on the trial, conviction and sentence in a case. The Court’s duty to be constitutionally correct even when its view is counter-majoritarian is also a factor which should weigh with the Court when it deals with the collective conscience of the people or public opinion.”

Interestingly, Deepak Gupta and Hemant Gupta, JJ. gave a supplementing opinion in which they agreed with Justice Kurian Joseph on all points except the observation in regard to the death penalty quoted above.[Channu Lal Verma v. State of Chhattisgarh,2018 SCC OnLine SC 2570, decided on 28-11-2018]

 

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Single Member Bench of Prem Narain (Presiding Member), partly allowed a review petition filed against the order of the Commission, whereby names of various complainants were included in the order although some of them had withdrawn their complaints while others were not even impleaded in the first place.

The main issue that arose before the Commission was whether any sort of interference was called for in the review petition filed by the petitioner.

The Commission observed that Section 22(2) of the Consumer Protection Act, 1986 (COPRA) is limited to the error apparent on the face of the record. The Commission then referred to the Supreme Court judgments of Union of India v. Sandur Manganese and Iron Ores Ltd., (2013) 8 SCC 337 and S.Bagirathi Ammal v. Palani Roman Catholic Mission, (2009) 10 SCC 464, wherein it was held that the power of review cannot be exercised solely on basis that the parties do not agree with the view of the judgment, as long as the point is already dealt with and answered, parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under review jurisdiction. Under the review jurisdiction, rehearing of issues is not allowed but the same issues can be decided just by a perusal of the records and if a prima facie error is detected then it can be corrected using the review jurisdiction. In the instant case, the error was apparent only with respect to certain complainants.

The Commission held that the names of those complainants, who had withdrawn their complaints and also those who were not impleaded in the complaint, can be deleted from the order; however, the similarly situated complainants can still derive the benefit of the impugned order since it was a class complaint. On the issue of compensation, the Commission held that some of the complainants had taken possession prior to the date till when the compensation was awarded to them, hence in such cases the compensation shall be given to them only up to the date when they were handed over the possession. Resultantly, the impugned order was modified and the review petition was partly allowed.[R.V. Prasannakumaar v. Mantri Castles (P) Ltd., Review Application No. 198 of 2018, order dated 27-11-2018]

Case Briefs

Madhya Pradesh High Court: A review petition was filed before a Single Judge Bench of Sujoy Paul, J., to review an order passed by this court.

Respondent had availed all the remedies available to him under M.P. Panchayat Service (D&A) Rules, 1999 where these rules were created under Section 70 of Panchayat Raj and Gram Swaraj Adhiniyam, 1993.

Petitioner submitted that respondent could not have availed the remedy under Section 91 of the Adhiniyam. Rules of 1999 prescribed remedy of revision, which was admitted to have been exhausted by respondent. Once a specific rule dealing with service matters and disciplinary action were framed i.e. Rules of 1999, and respondent had exhausted all the remedies available therein, respondent could not have preferred an appeal under Section 91. Since Section 70 was an enabling provision, the rules framed there under cannot override Section 91 of the main Adhiniyam. Section 91 states that an appeal was maintainable against the orders of Panchayat and other authorities under the Act. Thus revision before government was maintainable.

The High Court was of the view that even if it is accepted that revisional power exercised by the State Government was in fact under the M.P. Panchayat (Appeal & Revision) Rules, 1995 and not under Section 91 of the main Act, the outcome would not change because the power is with the State Government under Section 91 of the Act to interfere with the order passed by an authority under the Act. If a wrong provision is mentioned while exercising the power, it would not stop the Competent Authority to exercise the appellate power. The Court found no reason to review the order passed earlier. Therefore, the petition was dismissed. [Gram Panchayat Khaira Janpadh Panchayat Rewa v. State of M.P., RP. No. 1664 of 2018, dated 14-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of M.K. Hanjura, J., allowed an application filed against the order dismissing the petitioner’s petition under Section 561-A of the CrPC, 1989 [Jammu & Kashmir]. The petitioner sought quashing of the dismissal order primarily on the ground that it was passed behind his back.

The main issue, in this case, was whether a criminal Court can recall or review its decision after the date of its delivery.

The Court applied the ratio laid down by the Hon’ble Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, wherein the Supreme Court had held that there is no power of review with the criminal court once the judgment has been rendered. However, 4 exceptions to this general rule were also laid down by the Supreme Court: first, if the judgment is pronounced without jurisdiction; second, if it is in violation of the principles of natural justice; third, if it has been pronounced without giving an opportunity of being heard to the party affected by it; and fourth, where the order is obtained by abuse of the process of the Court. In all these cases the High Court under its inherent jurisdiction can recall its judgment.

The Court held that the petitioner’s case was covered under the above exceptions i.e. the order was passed behind his back and he was not afforded an opportunity of being heard. Hence the impugned order was quashed and recalled by the Court. [Jalal-ud-Din Sofi v. State of J&K,2018 SCC OnLine J&K 519, order dated 24-08-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The CIC recently reiterated that it does not have the power to review its own orders as the same has not been envisaged in the RTI Act, 2005 or Rules framed under it.

Respondent replied CIC against the show-cause notice issued to him, wherein it was stated that the original RTI application dated 30.12.2015 of the appellant was duly responded by the PIO vide letter dated 30.03.2016. Thereafter, the appellant had filed another application dated 20.04.2016 with additional 09 points, which respondent considered an “After Thought Information”. The letter was not considered a RTI application as the prescribed fee for seeking information under the RTI Act, 2005 had not been paid/enclosed with the letter.

Thereafter, the letter dated 20.05.2016 was marked as First Appeal, which was addressed to the Managing Director & Appellate Authority. Subsequently, respondent claimed to have given a point wise response to the applicant on points which were raised in his letter dated 20.04.2016. Furthermore, it was submitted that the applicant had filed a complaint as CIC/KY/C/2016/900144, Diary No. 133893 dated 10.05.2016 and the same was dismissed by the Commission while citing that no fruitful purpose would be served by proceeding in such cases.

As regards the dissatisfaction of the complainant-appellant with the aforementioned decision, the Commission observed that re-visiting the said orders would amount to reviewing the earlier decision of the Commission which was not envisaged within the provisions of RTI Act, 2005. In this context, the decision of the Delhi High Court in the matter of DDA v. CIC, 2010 SCC OnLine Del 2058 was found pertinent where it was held that once the statute does not provide for the power of review, the CIC cannot, without any authority of law, assume the power of review or even of a special leave to appeal. Hence, in that case, Regulation 23 was held to be ultra vires the provisions of the Act. The Court also referred to the Supreme Court’s judgment in Patel Narshi Thakershi v. Shri Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844. Later, Regulation 23 of the Central Information Commission (Management) Regulations, 2007, was amended vide notification No. CIC/Legal/2007/006 dated 20.10.2008 to correct this defect. Accordingly, CIC denied intervention in this matter. [Revanna P v. Jerome Kujur, Jt.GM (HR) and CPIO, HMT (International) Ltd., Complaint No. CIC/DOHIN/C/2017/154878-BJ- Final, order dated 19.06.2018]