Hot Off The PressNews

Court of Appeals (UK): Shamima Begum who left east London in order to join ISIS, has won the legal battle to be allowed to return home to fight the government’s decision to revoke her UK citizenship. Begum left Bethnal Green in London with two teenage friends in 2015 to join Isis, when the terror group was at its height. Four years later, after its territorial defeat, she was found in a Syrian refugee camp, nine months pregnant. Her citizenship was revoked by the Home Office on grounds of security. The Court of Appeals partially overturned an earlier ruling by the Special Immigration Appeals Commission which held that she had not been illegally rendered Stateless while she was in Syria because she was entitled to Bangladeshi citizenship.

The then Home Secretary, Sajid Javid had vehemently argued in the favour of Shamima’s citizenship revocation on the ground that she had the right to become a Bangladeshi citizen, the birth country of her parents. The British security sources have argued time and again that Shamima Begum represents a security risk, and that she was a member of Isis’s morality police: al-Hisba, during which time she had a reputation for strictness and used to carry a Kalashnikov rifle on her person.

Shamima Begum’s lawyers contended that she did not have a fair opportunity to give her side of the story and stripping of her citizenship without a chance to clear her name, is not justice.

Perusing her contentions, Lord Justice Flaux held that, “Notwithstanding the national security concerns about Ms Begum, I have reached the firm conclusion that given that the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal, fairness and justice must, on the facts of this case, outweigh the national security concerns.” 


 Source: The Guardian 

                                                                                                                                                                                  

Cabinet DecisionsLegislation Updates

The Union Cabinet has given ex-post facto approval on an Agreement on Security Cooperation between the Government of the Republic of India and the Government of the Kingdom of Saudi Arabia that was signed on 29-10-2019 during the visit of Hon’ble Prime Minister to Saudi Arabia.

The Agreement aims to improve the effectiveness of both countries in the prevention and suppression of crimes including crime relating to terrorism and its financing and organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with national and international obligations.


Cabinet

[Press Release dt. 24-12-2019]

[Source: PIB]

Hot Off The PressNews

Improving Security Situation in Jammu and Kashmir

Union Minister of State for Home Affairs, Shri G. Kishan Reddy, in a written reply to a question regarding the security situation in Jammu and Kashmir, in Rajya Sabha today, said that the Government has adopted a policy of zero tolerance towards terrorism and security forces are taking effective and continuous action in countering terrorism as a result of which a large number of terrorists have been neutralized in the State of Jammu and Kashmir during the past few years.

The details  of  incidents  of  terrorist  violence,  civilian killed and security personnel killed in Jammu and Kashmir during last year and current year (upto 17th November, 2019) are as under: –

Year Terrorist incidents Civilian Killed Security personnel killed
2018 614 39 91
2019 (upto 17thNovember) 594 37 79

Elaborating on the multi-pronged approach adopted by the Government to contain cross-border infiltration, the Minister said that this includes multi-tiered deployment along the International Border / Line of Control, border fencing, improved intelligence and operational coordination, equipping Security Forces with advanced weapons and taking pro-active action against infiltrators.

Attempts of infiltration in Jammu and Kashmir during last year and current year (upto October, 2019) are as under: –

Year Infiltration attempts Net infiltration
2018 328 143
2019 (upto October) 171 114

The Minister also said that the Government has sanctioned construction of 14,460 bunkers, to mitigate the hardships being faced by people living on IB/LoC, due to cross border firing.

The details of incidents of ceasefire violations/cross border firings, civilians killed and security personnel killed in Jammu and Kashmir during last year and current year (upto October, 2019) are as under: –

Year Incidents of ceasefire violations/cross border firings Civilian Killed Security personnel killed
2018 2140 30 29
2019 (upto October) 2753 15 17

The Minister added that as per the report of the Government of Jammu and Kashmir, since 05-08-2019, no person has died due to police firing in law and order related incidents. He noted that during the same period, 3 security force personnel and 17 civilians have been killed in terror-related incidents while 129 persons got injured.


Ministry of Home Affairs

[Press Release dt. 27-11-2019]

[Source: PIB]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Ajay Rastogi, JJ has set aside the order of the Delhi High Court granting bail to Zahoor Watali, a J&K businessman, in a Terror Funding case.

Factual Background

Zahoor Ahmad Shah Watali is alleged to have been involved in unlawful acts and terror funding in conspiracy with other accused persons. He has allegedly acted as a conduit for transfer of funds received from terrorist Hafiz Muhammad Saeed, ISI, Pakistan High Commission, New Delhi and also from a source in Dubai, to Hurriyat leaders/secessionists/terrorists; and had helped them in waging war against the Government of India by repeated attacks on security forces and Government establishments and by damaging public property including by burning schools etc.

Designated Court’s order rejecting bail

The Court noticed that the accusation against Watali was of being a part of a larger conspiracy to   systematically upturn the establishment to cause secession of J & K from the Union of India.  Keeping in mind the special provisions in Section 43D of the Unlawful Activities (Prevention) Act, 1967 it held,

“In view of the above facts and circumstances, the statements of witnesses/material/documents and other material placed on record by NIA, offences as alleged against the accused are prima facie made out. Therefore, in view of the bar under proviso to Section 43D(5) of UA(P) Act,  the accused’s prayer for bail cannot be granted.”

Delhi High Court’s order granting bail

The High Court granted bail to Watali with riders and said,

“The impugned order dated 8th June, 2018 of the trial Court is accordingly set aside. The Appellant is directed to be released on bail subject to his furnishing a personal bond in the sum of Rs.2 lakhs with two sureties of like amount to the satisfaction of the trial Court”

Factors to be considered in bail application as decided in State of U.P. through CBI Vs. Amarmani Tripathi, (2005) 8 SCC 21

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  • nature and gravity of the charge;
  • severity of the punishment in the event of conviction;
  • danger of the accused absconding or fleeing, if released on bail;
  • character, behaviour, means, position and standing of the accused;
  • likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with;
  • danger of justice being thwarted by grant of bail.

Ruling

According to the bench, the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The bench said that the Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true.

It hence, held,

“A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act.”

[National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 SCC OnLine SC 461, decided on 02.04.2019]

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J has asked the Chief Secretaries and DGPs of all the States and Union Territories to take strong and necessary measures to prevent attacks of Kashmiris and other minorities as an aftermath of the Pulwama Terror Attack. It directed:

“The chief secretaries, the DGPs and the Delhi Police Commissioner are directed to take prompt and necessary action to prevent incidents of threat, assault, social boycott etc against Kashmiris and other minorities.”

The bench sought responses from 10 State Governments, namely, are Jammu and Kashmir, Uttarakhand, Haryana, Uttar Pradesh, Bihar, Meghalaya, Chhattisgarh, West Bengal, Punjab and Maharashtra.

Directing that the police officers who were appointed as nodal officers to deal with incidents of mob killings will now be responsible to deal with cases of alleged assault on Kashmiris, the Court directed the Ministry of Home Affairs to give wide publicity of the nodal officers’ contact details so that those who need help can approach them easily.

The matter will next be heard on February 27.

(Source: ANI)

Cabinet DecisionsLegislation Updates

The Union Cabinet chaired by Prime Minister Narendra Modi has approved the MoU between India and Morocco for setting up of a Joint Working Group (JWG) on Counter-Terrorism.

          Setting up of the JWG on Counter Terrorism by India and Morocco would help cases relating to terrorist attacks. The MoU would, thus be the basis for obtaining/exchanging information on terrorist activities.

[Source: PIB]

Cabinet

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of A.M. Shaffique and P. Somarajan, JJ., decided a criminal appeal filed against the Order of the Special Court (NIA cases) denying bail to the appellant (Accused No. 1), wherein the Court set aside the impugned Order and granted bail to the appellant.

The accused was alleged to indulge in terrorist activities. The wife of the appellant, who was living with him in Saudi Arabia, alleged that she was forced to convert her religion from Hinduism to Islam, and now the appellant was making attempts to take her to Syria to join ISIS terrorist organization. She approached the Court to investigate in the matter. The investigation was launched and the National Investigation Agency (NIA) had recovered laptops from the appellant which contained certain literature regarding Jihad movement, speeches of one Zakhir Naik, and videos of the Syria war, etc. The appellant submitted that there was no evidence to establish his link with any terrorist organization; he was unnecessarily detained in prison. He prayed for grant of bail.

The High Court perused the record and held that as the matter stood then, appellant’s link with any terrorist organization was not established. The Court held that simply because the appellant had seen the matter as mentioned hereinabove, it is not by itself a reason to implicate him as a terrorist, unless there is other evidence to establish the same. The Court further observed, “Many of such videos, speeches, etc. are in public domain. Merely for the reason that one sees such matters, it may not be possible for any person to establish that the accused is involved in terrorism.” In absence of any other material, the Court held that it was a fit case to exercise jurisdiction to grant bail. Accordingly, the appeal was allowed and the appellant was enlarged on bail subject to the conditions imposed. [Muhammed Riyas D.V.P. v. Union of India, 2018 SCC OnLine Ker 1722, decided on 12-04-2018]

Hot Off The PressNews

On Day 25 of the Aadhaar Hearing, Attorney General KK Venugopal continued arguing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the safety aspect of biometrics.

Below are the highlights from Day 25 of the Aadhaar Hearing:

  • AG:  Finger imaging technology is 99.9% accurate. Biometrics is a very safe and accurate technology and can solve problems such as money laundering, bank frauds, income tax evasion etc.
  • Sikri, J: Bank frauds weren’t caused because of multiple identities.
  • Chandrachud, J: Aadhaar will not prevent an individual from operating layers of commercial transactions. It won’t prevent bank frauds either. Can only help in providing benefits under section 7 of Aadhaar Act, 2016 at most. Mere legitimate state interest does not ensure proportionality. Your submission lacks this nuance.
  • AG: Aadhaar will help in income disparity and eliminating poverty.
  • Sikri, J: The gap is widening. More than 70% wealth is in the hands of 1%.
  • Chandrachud, J: Proportionality is key. How far can the state cast the net of Aadhaar. Only section 7 seems to be understandable.
  • Sikri, J: You cannot assume that the entire population consists of defaulters and violaters. What is the logic in linking all sim cards to aadhaar.
  • AG: Terrorism will be curbed by doing this.
  • Chandrachud, J: Do terrorists apply for sim cards? It’s a problem that you’re asking the entire population to link their mobile phones with Aadhaar.
  • AG:
    • We are asking for minimal information via Aadhaar. Most information is already available in public domain. The question is to what extent has Aadhaar invaded privacy? It’s as minimum as possible.
    • Aadhaar is required only for section 7 benefits, banks, income tax and mobile nos. Apart from that it’s purely voluntary.
    • Court needs to balance two competing rights. Maintains that right to food, right to employment, right to medical care, etc trump right to privacy. Can right to privacy be invoked to deprive other sections of the society?
    • The invasion to privacy is so minimal that it can’t even be considered an invasion. In X v. Hospital Z right to privacy was balanced against right to information. The appellant ( a man) had HIV and had the right to non disclosure. However, the court had held that his fiance had the right to know of his disease.
  • Sikri, J: This is the case of balancing the rights of two person. In the case of Aadhaar, you’re giving a person food in exchange of their privacy.
  • AG: The bare minimal requirements for identification for an individual is alone taken and to the extent that the technology permitted. Should people have basic right to life under article 21? Can it ever be challenged on the ground that we have a right to privacy?
  • Bhushan, J: Minimal invasion is subjective. What maybe minimal for one might not be minimal for you.
  • AG: Please look at the information that is taken and look at it from objective standards. We have to look at the larger interest of the country.
  • Chandrachud, J: We have to look at three things: informed consent, purpose limitation, and enough security.
  • AG: The CIDR is completely safe.
  • Chandrachud, J: We have to look at what proportionality means. Proportionality hasn’t been defined in the Privacy judgement.
  • AG: Without the minimal information that is collected, the entire architecture of Aadhaar couldn’t have been framed. Sections 29 a and b contain purpose limitation. Aadhaar was voluntary when it was rolled out, therefore there’s no question of violation of any right.
  • Sikri, J: Is it permissible to say that I’ll give you food, shelter, etc but you’ll be my slave?
  • AG: Slavery is not permissible.
  • Chandrachud, J: Your argument to save the validity of the act does not take into account what happened before the act was passed. There was no protection for the citizens that time. There’s no retrospective effect also. What about collection of data by state Governments?
  • AG: State Governments act as the agent of the Central Government.
  • Khanwilkar, J: Is biometrics locking option available for people who don’t want to use Aadhaar?
  • Shyam Divan intervenes: There’s no way to opt out of the Aadhaar system.

____________________________________________________________________________________________________________________________

To read the highlights from the other submissions by the Attorney General, click here, here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Hot Off The PressNews

Supreme Court: After the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ refused the plea of Hadiya’s father Asokan to hold an in-camera hearing when Hadiya appears before it, Hadiya appeared before the bench and Senior Advocate Kapil Sibal said that Hadiya has the right to make her own decisions.

The Court heard National Investigation Agency (NIA) which submitted a 100-page report on the cases where Muslim boys have converted Hindu girls by marrying them and that the case of Shafin Jahan marrying Hadiya was also that of Love Jihad. Earlier, the Court had directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl and had hence, directed the presence of Hadiya before it. The bench had also made it clear that it will speak to her not in camera but in open Court.

Kapil Sibal insisted that since Hadiya was present in the Court, it should listen to her and not NIA. When asked by the Court what does she want, Hadiya said:

“I want my freedom.”

Upon being asked whether she wanted to continue her studies on state’s expense, Hadiya said:

“I want to but not on state’s expense when my husband can take care of me.”

Removing her from the custody of her father, the Court directed that Hadiya be taken to college for her studies and that college should allow facility of hostel to her. The matter will now be taken up in the third week of January.

Source: ANI

Case BriefsForeign Courts

Supreme Court of Pakistan: While deciding 16 petitions filed by civilians who had been convicted for terror related activities and had been given death sentence by the Field General Court Martial, a five judge bench comprising of Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Azmat Saeed, Manzoor Ahmad Malik and Faizal Arab, JJ., upheld the death sentences observing that the petitioners could not prove that the trials by the FGCM were malafide with a collateral purpose.

In the instant case, the 16 petitioners were convicted by the Military Court (which was setup in the aftermath of the ghastly attack on a school in Peshawar) for conducting terrorist activities and threatening the security of Pakistan and attacking the military officers. The petitioners however contended that they have been subjected to secret trials without any legal assistance and that they have been deprived of the right to be represented by a lawyer of their own choice in violation of rights so guaranteed by Articles 10 and 10A of the Constitution of the Islamic Republic of Pakistan, 1973. On the contrary the respondents argued that each and every convict was given full opportunity to defend themselves. The option to engage a lawyer of their own choice was afforded and upon failure to take advantage of such option an Officer was deputed to defend them in terms of the Pakistan Army Act Rules, 1954.

Perusing the contentions, the Bench referred to the landmark decision of the Supreme Court of India in ADM Jabalpur v. Shivakant Shukla, (1977) 1 SCC 834, where it was observed that “between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence.” The Court further observed that the records clearly suggest that the FGCM was convened as per the provisions of the Pakistan Army Act and Rules, and the petitioners were unable to prove any kind of irregularity in this respect. It was further observed that the extraordinary circumstances which necessitated the institution of the FGCM, the act committed by the petitioners in the instant case clearly comes under the jurisdiction of the FGCM. [Said Zaman Khan v. Federation of Pakistan,  2016 SCC OnLine Pak SC 2 , decided on August 30, 2016]

High Courts

Bombay High Court: Setting aside the order of a special court, a bench comprising of PV Hardas and SP Joshi, JJ has held that an accused can be booked under the Maharashtra Control of Organised Crime Act (MCOCA), 1999 as well as the Unlawful Activities Prevention Act (UAPA), 1967 in a case of terrorism. In the present case the appellant-government was challenging the order which had discharged the accused in a bomb blast case from the MCOCA,  and  then transferred his case to the regular court to be tried under the UAPA, Explosives Act and the IPC. The Counsel from the appellant claimed that the conclusion of the special judge that a banned terrorist organisation cannot be said to be an organized crime syndicate and that the provisions of MCOCA could not be attracted to the act committed in the present case as they were acts of terrorism, were erroneous.

 The Court set aside the special court’s order and observed that the MCOCA deals with the organised crime syndicate committing several illegal activities with the objective of promoting insurgency and other objectives, while the UAPA deals with punishing the act of insurgency per se. Since these two enactments operate in respect of different and distinct offences, therefore a prosecution in respect of offences under both the enactments would certainly be maintainable. The Court further clarified that there may be some overlapping, but that by itself would be wholly insufficient to hold that prosecution under one Act would exclude the operation of the other Act. State of Maharashtra vs. Firoz, 2015 SCC OnLine Bom 3132decided on 28.04.2015