Case BriefsHigh Courts

Kerala High Court: P.V.Kunhikrishnan, J., criticized the decision of the District Level Authorization Committee for transplantation of Human Organs, wherein application of a person who came forward to donate his kidney to a needy patient was rejected because of his criminal antecedents. The Bench expressed,

 “If this stand of the respondent is allowed, I apprehend that, the respondent will reject such applications for permission to donate organs even on the ground that, the donor is a murderer, thief, rapist, or involved in minor criminal offences.”

 Observing that there were no provision provisions in Transplantation of Human Organs and Tissues Act, 1994 (‘Act 1994) and The Transplantation of Human Organs and Tissues Rules, 2014 (Rules 2014) to support the stand of the respondent, the Bench expressed its disgust stating,

“I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient.”

Petitioner 2, driver of petitioner 1 had sought approval for kidney donation as both the kidneys of petitioner 1 had spoiled and it needed urgent transplantation. However, the authorisation committee concerned rejected permission with the reasoning that, “the donor is involved in multiple criminal offences”. Noticeably, in earlier Rule 1994 there was a specific provision that says that a donor should not have any criminal antecedents. However, the said Rule was substituted by Rule 2014 and there was no such stipulation in the new Rule. The only embargo in Rule 2014 was that the donor should not be a drug addict.

In Shoukath Ali Pullikuyil v. the District Level Authorization Committee (2017(2) KLT 1062), the Court had observed that even a police verification report is not mandatory for taking a decision by the Authorisation Committee. The Court had held that,

 “Police can only be or rather police should only be involved, if the Authorisation Committee doubts the genuineness of the claims or bona fides of the persons or genuineness and bona fides of the documents produced and not otherwise. Verification through police as a routine manner in all cases should generally be avoided. That would save time and harassment to already harassed people. The prime consideration being that, there is no commercialisation in matters of organ donation. The organization committee can surely discover those by various certificates and documents that it requires to be filed before decisions are taken. This should not be allowed to continue in the future.”

Observing that the only intention of the Legislature was to prevent commercial dealings in human organs and tissues, the Bench opined that there was no logic to the finding of the committee for rejecting the application. If the reasoning of the authority is accepted, the only conclusion that is possible about such reasoning of the Authorisation Committee is that the committee believes that the criminal behaviour of the donor will percolate to the person who accepts the organs! What sort of reasoning is this? No person with common sense can agree with the same. Calling the reasons for refusal flimsy, the Bench stated that the Authorisation Committee could not go beyond their jurisdiction and reject the application as

“There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents.”

Hence, the Bench held that if there was no evidence to show that there was no commercial dealing, pragmatism should overtake technicalities, because a man was on death bed. The State government was directed to issue appropriate orders directing all the authorities concerned to convene meetings to consider the applications submitted as per Act 1994 and Rule 2014, as expeditiously as possible, at any rate, within one week from the date of receipt of such applications and mention the reason in cases of delay in convening the meeting within one week.

In the light of the above, the rejection order was set aside and the matter was remanded to the authority for reconsideration. [Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs, WP(C) No. 16216 of 2021, decided on 27-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioners: Advocate C.M.Mohammed Iquabal

For the Respondent: Sr. G. P. Deepa Narayanan

ObituariesOP. ED.

Today marks the first death anniversary of Supreme Court advocate Lily Thomas who was responsible for Section 8(4) of the Representation of the People Act, 1951 being struck down by the Supreme Court resulting into disqualification of convicted legislators from running for elections or holding an elected seat.

Born on March 5, 1928, at Changanassery in Kottayam District, in the State of Kerala to Adv. K.T Thomas and Smt. Anamma, Lily Thomas had fluent grasp in Latin, Sanskrit, Malayalam and English.[1] A graduate in B.Sc., she chose to do L.LB from Madras University and being fascinated by the special features of the Constitution and its influence in the society, she did her LL.M. in Constitutional Law[2] and become the first woman in India to qualify for an LL.M. degree.[3] She then went to Delhi to do a doctoral research on Constitution from the Indian Law Institute but started practicing in the Supreme Court of India.[4]

Thomas, who never got married[5], in an interview with The Economic Times, recalled a judge asking her if she was a miss or a Mrs,

“I told him I am a miss but I don’t miss much. He laughed so hard that even it would have been audible at India Gate.”[6]

As a Supreme Court Advocate, Thomas’s first major case was where she filed a petition in the Supreme Court challenging the validity of the ‘Advocate on Record’ system on 14 January 1964. In In re Lily Isabel Thomas, AIR 1964 SC 855, she had argued that as an advocate entitled to practise in this Court, she was entitled as of right not merely to plead but also to act, and that the Rules of this Court which prescribe qualifications before she could be permitted to act were therefore invalid. She, hence, sought that Rule 16(1) of Order IV of the Supreme Court Rules[7] as amended in 1962 which contains this prescription of qualifications be declared ultra vires. While her petition failed, many petitions challenging the AOR system have been filed ever since.

In a bid to protect the rights of married women, Thomas filed a petition in the Supreme Court challenging such conversions where a non-Muslim would convert to Islam merely to marry a second time without divorcing his first wife, without any real change in his belief. The bench of S. Saghir Ahmed and RP Sethi, JJ, in Lily Thomas v. Union of India, (2000) 6 SCC 224, held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. It said,

“Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17, besides being an offence.”

The Court further held that mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.

Her most notable breakthrough, however, came at the age of 85 when, in 2013, she won a landmark case in Lily Thomas v. Union of India, (2013) 7 SCC 653, under which members of India’s Parliament and members of state legislative bodies, convicted of a crime or in jail, became ineligible to run for elections or hold an elected seat. On 10 July 2013, a bench of A K Patnaik and S J Mukhopadhaya, JJ held that,

“Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution”

Consequently, it was held,

“if any sitting Member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by sub-section (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and/or sentence.”

Resultantly, Lalu Prasad Yadav became one of the first politicians who couldn’t contest elections.[8]

When Jayalalitha got convicted, Thomas, in an interview with The Economic Times[9], said

“She looked so powerful when in power but now she stands betrayed and alone. Why didn’t her party stop her? Where is the wealth now? Shouldn’t it be confiscated? Our law should be so clear that there should be no ifs and buts,”

Thomas’s dedication towards upholding and protecting the spirit of the Constitution is evident from the fact that she did not stop working even in the evening of her life.[10]


[Image: Original image of Advocate Lily Thomas from Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors]

[1]  Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors

[2] Ibid

[3] Senior Most Woman Lawyer Of SC, Lily Thomas Passes Away At 91, She the people, by Anushika Srivastava, December 10, 2019

[4]  Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors

[5] Ibid

[6] Meet Lily Thomas, the 87-year-old lawyer behind clipping of wings of convicted politicians like Jaya, Lalu, The Economic Times, Last Updated: October 03, 2014

[7] 16. No advocate shall be qualified to be registered as an advocate-on-Record unless he—

(1) has undergone training for one year with an advocate-on-Record approved by the court, and has thereafter passed such tests as may be held by the court for advocates who apply to be registered as advocate-on-Record, particulars whereof shall be notified in the Gazette of India from time to time; provided however that an Attorney shall be exempted from such training and test:

(2) has an office in Delhi within a radius of 10 miles from the Court House and gives an undertaking to employ, within one month of his being registered as advocate-On-Record, a registered clerk; and

(3) pays a registration fee of Rs 25.

[8] Who was Lily Thomas? Supreme Court lawyer whose fight ended reign of convicted politicians in elections, Financial Express. December 10, 2019

[9] Meet Lily Thomas, the 87-year-old lawyer behind clipping of wings of convicted politicians like Jaya, Lalu, The Economic Times, Last Updated: October 03, 2014

[10]  Official Website of Lily Thomas and Saju Jakob Advocates and Solicitors

Hot Off The PressNews

Commission to implement the directions of Supreme Court concerning criminal antecedents of candidates by reiterating its existing instructions with suitable modifications

Election Commission has consistently espoused rigorous and loftiest normative standards in public life.

Supreme Court on 13-02-2020 in Contempt Pet. (C) No. 2192 of 2018 of W.P. (C) No. 536 of 2011 invoking Article 129 and Article 142 of the Constitution of India directed as under:

“1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

 2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.

 3) This information shall also be published in: (a) One local vernacular newspaper and one national newspaper; (b) On the official social media platforms of the political party, including Facebook & Twitter.

 4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.

 5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

 6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.”

Election Commission whole-heartedly welcomes this landmark order, which is bound to go a long way in setting new moral yardsticks for overall betterment of electoral democracy. Earlier, Commission on 10 October 2018 issued detailed instructions and guidelines along with amended form of affidavit for ensuring publicity of criminal antecedents by the candidates and the concerned political parties for the information of voters. This is being implemented in all the elections since November, 2018.  Now, Commission proposes to reiterate these instructions with suitable modifications in order to implement the directions of Hon’ble Supreme Court in letter as well as in spirit.

Also Read:


Election Commission

[Press Release dt. 14-02-2020]

[Source: PIB]

Case BriefsSupreme Court

Supreme Court:  In a major judgment today, a bench of RF Nariman and S. Ravindra Bhat, JJ has directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics.

The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

The Court was hearing the contempt petition which brought the Court’s attention to a disregard of the directions of a Constitution Bench of this Court in Public Interest Foundation v. Union of India, (2019) 3 SCC 224 which too cognisance of the increasing criminalisation of politics in India and the lack of information about such criminalisation amongst the citizenry and issued various directions in that regard.

It was brought to the Court’s notice that there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them. The Court, hence, issued the following directions:

1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.

3) This information shall also be published in:

    • One local vernacular newspaper and one national newspaper;
    • On the official social media platforms of the political party, including Facebook & Twitter.

 4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks 4 before the first date for filing of nominations, whichever is earlier.

5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.

[Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178, decided on 1302.2020]

Case BriefsHigh Courts

Kerala High Court: Shircy V, J. granted pre-arrest bail to the petitioners considering no criminal antecedents having been reported against the petitioners.

In the present case, the prosecution has alleged that the accused persons had wrongfully restrained the complainant, abused him and attacked him with a wooden log and caused injuries to him. It was also alleged that a blow to the head was aimed at him but was averted by the complainant which otherwise would have caused his death. 

The learned counsel representing the petitioners, P. Vijaya Bhanu submitted that the petitioners are innocent and thereby requested pre-arrest bail.

The Public Prosecutor, Sreeja V submitted that the first petitioner has already been granted regular bail and the allegation against these petitioners is that they have joined with the first accused to inflict injuries on the defacto complainant.

The Court upon perusal of the facts and circumstances of the case granted pre-arrest bail to the petitioners considering there was no previous criminal background of the petitioners. [Vishnu v. State of Kerala, 2020 SCC OnLine Ker 343, decided on 28-01-2020]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and P. Somarajan, JJ. was hearing a death reference tagged along with a criminal appeal filed by the accused challenging order of the Sessions Judge vide which he was convicted and sentenced to be hanged by the neck till his death for offences under Sections 376, 302, 449 and 392 of the Indian Penal Code, 1860.

The accused respondent trespassed into the house of a minor girl aged 15 years, raped and murdered her; and thereafter committed theft of a gold necklace and a gold ring from her body. The Court observed that there was no eye-witness to the incident and the case rested purely on circumstantial evidence. However, scientific material showed that the DNA found in spermatozoa taken from victim’s vagina matched with the DNA profile of the accused. This clearly proved that the accused had raped the victim. Further, the missing chain and ring were recovered from a financier where the accused had pledged the same under a different name. Thus, the prosecution had proved all circumstances forming the chain beyond a reasonable doubt and the only hypothesis that could be arrived at by the Court was that the accused was involved in the crime.

It was noted that this was a case where the victim was subjected to forcible sexual intercourse, and lust and greed of the accused had resulted in rape and murder of a minor girl. However, the accused did not have any criminal antecedents; there was no pre-meditation and intention to commit crime would have developed all of a sudden. The offence might have been committed in a sudden rush of blood i.e., to commit robbery and rape. The accused, aged 29 years at the time of the incident, had married twice and had children.

In view of all the facts, it was opined that instead of the death penalty, the punishment of life imprisonment would meet the ends of justice. However, taking into account gravity of the offence, the Court relied on the dictum in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 and held that no remission be granted to the accused for a period of 25 years. [State v. Rajesh Kumar, 2019 SCC OnLine Ker 43, Order dated 08-01-2019]

Case BriefsSupreme Court

Supreme Court: Abhay Manohar Sapre, J. delivered the judgment for himself and Uday U. Lalit, J. wherein the appeal filed by the convict under Sections 294, 353, 504 read with Section 34 IPC, was allowed in part. The appeal was filed against the judgment of the Bombay High Court which  upheld his conviction and sentence awarded by the trial court.

As per the prosecution case, the appellant (Sarpanch of the village) along with the co-accused (Member of Gram Panchayat) reached the Zilla Parishad primary school. They asked PW-1, the teacher, as to why he was not regular and punctual. The explanation given by PW-1 did not satisfy the appellant. PW-1 was asked to bring the book of circle-in-charge which  was refused by PW-1. Thereafter, PW-1 was held from the collar of his shirt and beatings were given to him. The appellant along with the co-accused was tried and convicted for the charges as mentioned above by the trial court. An appeal was preferred to the High Court which acquitted the co-accused but the appeal so far it concerned the appellant herein was dismissed. Aggrieved thus, the appellant filed the present appeal.

The Supreme Court considered the factual matrix and was of the opinion that the sentence awarded to the appellant deserved to be modified. For reaching such conclusion, the Court gave relevance to four facts which are enumerated hereinafter:

  • Firstly, the appellant had already undergone a sentence of one month in prison out of three months imprisonment awarded to him.
  • Secondly, the appellant was old and the incident seemed to have occurred at spur of the moment.
  • Thirdly, he had no criminal antecedents.
  • Lastly, fairly, he did not deny the commission of the act and did not challenge his conviction.

The appeal was, thus, allowed in part. The punishment of imprisonment awarded by the trial court and upheld by the High Court was altered. The sentence of imprisonment was reduced to the period already undergone by the appellant. However, the fine of Rs 800 was increased to Rs 15,000. [Haribhau v. State of Maharashtra,2018 SCC OnLine SC 1337, dated 04-09-2018]

 

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, Amitava Roy and A M Khanwilkar, JJ allowed the petition seeking cancellation of Bihar Chief Minister Nitish Kumar’s membership of the state Legislative Council for allegedly concealing a pending criminal case against him. Stating that it will consider the matter, the bench said it will fix a date for hearing the matter.

The petition, which was filed yesterday, alleged that there was a criminal case against the JD(U) leader wherein he was accused of killing a local Congress leader Sitaram Singh, and injuring four others ahead of Lok Sabha by-election to the Barh constituency in 1991. The petitioner has also sought a direction to the CBI to register an FIR against Kumar in the case. He sought cancellation of Kumar’s membership as per the Election Commission’s 2002 order stating it is mandatory for candidates to disclose criminal cases against them in their affidavits annexed to nomination papers. He claimed that the Bihar Chief Minister did not disclose the criminal case that was pending against him in affidavits since 2004, except for 2012.

Source: PTI

Case BriefsSupreme Court

Supreme Court: The bench of P.C. Ghose and Amitava Roy, JJ directed the State of Bihar to take all consequential steps, inter alia, for taking Md. Shahabuddin, the respondent-accused, to custody forthwith. The Court said that balancing the considerations of individual liberty and societal interest as well as the prescriptions and the perception of law regarding bail, it appears that the Patna High Court erred in granting bail to the respondent-accused without taking into consideration the overall facts otherwise having a bearing on the exercise of its discretion on the issue.

Prashant Bhushan, counsel appearing for the complainant had contended that the High Court had committed a gross error in granting bail to the respondent-accused and did not consider the contents of the F.I.R. as well as the fact that he is a habitual offender, and that he has in the meantime been awarded two sentences of life imprisonment and also named in several criminal cases. He further urged that the respondent-accused is a category-A history sheeter in view of his persistent criminal antecedents and as in the case in hand, he has been charged with the offence of facilitating murder of a witness in a case in which he was being tried, he ought not to have been granted bail in any view of the matter.

However, Shekhar Napahde, the counsel appearing for the respondent-accused submitted that the High Court granted bail on the ground that the trial could not be completed within a period of nine months, as directed by the High Court vide order dated 03.02.2016 while rejecting his earlier prayer for bail in the same case.

Considering the arguments, the Court held that although it has to be accepted that the respondent-accused has already been granted bail by the concerned courts in other cases, a duty is cast upon the Court in addressing such a prayer in a case on its own merit, and while applying its discretion, it must be applied in a judicious manner and not as a matter of course. The Court further said that tough the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents in the scale of collective cry and desire and that societal concern has to be kept in view in juxtaposition to individual liberty. [Chandrakeshwar Prasad v. State of Bihar, 2016 SCC OnLine SC 1054, decided on 30.09.2016]