Case BriefsSupreme Court

Supreme Court: In a suo motu case initiated to address the question as to whether the provision of pre-sentence hearing in capital punishment cases is mandatory or discretionary, the 3-judges Bench of Uday Umesh Lalit, CJ., and S. Ravindra Bhat*, Sudhanshu Dhulia, JJ., suggested that the matter be referred to a constitution Bench. Highlighting the apparent flaw of depriving the capital punishment convict of pre-sentence hearing, the Court held,

“In all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecution’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him.”

Question of Law

Due to a difference of opinion and approach amongst various judgments, on the question of whether, after recording conviction for a capital offence, the court is obligated under law to conduct a separate hearing on the issue of the sentence, the Bench had assembled to adjudicate the issue.

Validity of Capital Punishment and Valuable Safeguards

In Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the majority upheld the constitutionality of the death sentence, on the condition that it could be imposed in the “rarest of rare” cases. The Court, being conscious of the safeguard of a separate hearing on the question of sentence, articulated it as a valuable right, which ensures to a convict, to urge why in the circumstances of his or her case, the extreme penalty of death ought not to be imposed. The Court noted,

“The present legislative policy discernible from Section 235 (2) read with Section 354 (3) is that in fixing the degree of punishment or making the choice of sentence for various offences the Court should not confine its consideration “principally” or merely to the circumstances connected with a particular crime, but also give due consideration to the circumstances of the criminal.”

Bifurcated Hearing: Inconsistent Precedents

Section 235 of the CrPC, 1973 which deals with judgment of acquittal or conviction, reads as follows: “235.’(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

Hence, Section 235 (2) provides for a bifurcated trial and specifically gives the accused person a right of a pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354 (3) a bearing on the choice of sentence.

Precedents holding Bifurcated Hearing is of mandatory nature

In Santa Singh v. State of Punjab, (1976) 4 SCC 190, the Court had held that a separate stage should be provided after conviction when the court can hear the accused in regard to the factors bearing on sentence and then pass proper sentence on the accused—the nature of the offence, the circumstances of the offence (extenuating or aggravating), the prior criminal record of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. In the aforesaid case, the Court had also noted,

“Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing 8 would have to be harmonized with the requirement of expeditious disposal of proceedings.”

In Mithu v. State of Punjab, (1983) 2 SCC 277, the Court held that it is because the court has an option to impose either of the two alternative sentences, subject to the rule that the normal punishment for murder is life imprisonment, that it is important to hear the accused on the question of sentence. In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, the Court observed,

“To assist the court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality.”

Similarly, other more recent three-judge decisions have also ruled that same day sentencing in capital offences violate the principles of natural justice, and is opposed to Section 235 (2).

Precedents Stating Bifurcated Hearing is merely discretionary

However, some the three-judge Benches have arrived at a different conclusion that same-day sentencing does not necessarily fall foul of Section 235(2) of the CrPC. This contrary line of cases are based on the premise that the court may adjourn for a separate hearing, but the absence of it would not in itself vitiate the sentence. In Dagdu v. State of Maharashtra, (1977) 3 SCC 68, a three-judge bench rejected the interpretation of Santa Singh case (supra) as laying down that failure on the part of the court to hear a convicted accused, on the question of sentence, would necessitate remand to the trial court. Instead, it held that such an omission could be remedied by the higher court by affording a hearing to the accused on the question of sentence, provided the hearing was “real and effective” wherein the accused was permitted to “adduce before the court all the data which he desires to be adduced on the question of sentence”.

Several decisions have since relied on Dagdu (supra), and concluded that the action of the court sentencing an accused on the same day as conviction in itself would not vitiate the sentence. The decision in Dagdu (supra) was in turn, followed by another three-judge bench in Tarlok Singh v. State of Punjab, (1977) 3 SCC 218. Similarly, in Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714, a similar conclusion was arrived at, but on differing reasoning. The Court held,

“While the accused facing the possibility of death sentence was not entitled to an adjournment, nothing barred the court from granting the same.”

Judicial Interpretation of “Sufficient Time”

The Court through its various judgments had held that “sufficient time must be given to the accused on the question of sentence”. The common thread that runs through all these decisions is the express acknowledgment that meaningful, real and effective hearing must be afforded to the accused, with the opportunity to adduce material relevant for the question of sentencing. However, the Court noted,

“What is conspicuously absent, is consideration and contemplation about the time this may require.”

In Manoj Pratap Singh v. State of Rajasthan, 2022 SCC OnLine SC 768, where ‘sufficient time’ for compliance with Section 235(2) CrPC was considered; it was concluded that the trial court had “scrupulously carried out its duty in terms of Section 235(2)” since the sentence was awarded 3 days after the conviction, after considering both the aggravating and mitigating circumstances. After hearing the parties on the question of conviction in Manoj v. State of M.P., 2021 SCC OnLine SC 3219, the Court had adjourned the matter for submissions on sentencing, with directions eliciting reports from the probation officer, jail authorities, a trained psychiatrist and psychologist, etc., to assist the accused in presenting mitigating circumstances. Noticing the lack of a uniform framework in this regard, the Court had initiated the present Suo Motu W.P. (Crl.) No. 1/2022 to address the necessity of working out the modalities of psychological evaluation, the stage of adducing evidence in order to highlight mitigating circumstances, and the need to build institutional capacity in this regard.

Conclusion

The Court, after observing that the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, are relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused, opined that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict, on the issue of sentence.

Consequently, the Court held that a reference to a larger bench of five Judges is necessary for this purpose and directed the matter to be placed before the Chief Justice of India for appropriate orders in this regard.

[Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered while Imposing Death Sentences: In re, 2022 SCC OnLine SC 1246, decided on 19-09-2022]

*Judgment by: Justice S. Ravindra Bhat


*Kamini Sharma, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

Madras High Court: In the case relating to the rights of the LGBTQIA+ community, N. Anand Venkatesh, J. has observed that six months’ time sought by the Government to finalize the Transgender Policy and the rules is completely unacceptable and this shows that priority is not being given to this issue and expects the Government to appreciate the concern shown by this Court. The Court took note of the submissions given by the Additional Advocate General and directed all concerned, including the press, to take note of the notification published in the gazette on 20.08.2022 and to address persons belonging to LGBTQIA+community by using only the notified terms.

The Court observed:

This process has been going on for more than a year and it is not known as to why six months’ time is sought for to bring out the Transgender Policy and the rules under the 2019 Act. The Government must bear in mind that persons belonging to LGBTQIA+ community have been sidelined from the mainstream of the Society for too long and it is high time that top priority is given to implement the policy and rules”.

It further viewed that, if the Government is really willing and serious about the upliftment of LGBTQIA+ community, some urgency must be shown to finalize the policy and the rules.

The Court, hence, directed the Additional Chief Secretary to file a status report and to explain the present status of the policy, the rules and the process yet to be completed regarding the same, after which the Court will fix some time lines for the completion and implementation of the policy and the rules. It also directed the National Medical Commission to upload the recommended modifications given by the expert committee on their website.

The Court further directed the counsel for the respondents to file the status report after taking specific instructions from the National Medical Commission, as to whether any subsequent draft regulations have been uploaded on the website by incorporating conversion therapy as a professional misconduct, and whether any communication to the Medical Colleges and Education Boards has been made for implementing the revised guidelines for competency-based PG Training Programme for MD in Psychiatry and for preparation of module on psychiatric issues among LGBTQIA+ community group.

The Court expressed disappointment towards the reasons provided by the Ministry of Social Justice and Empowerment for failing to enlist the NGOs who are active in the field of welfare of LGBTQIA+ community, despite the previous order, and observed that “a careful scrutiny of the allocation of business rules of the Department of Social Justice and Empowerment clearly shows that it is the Ministry, who is responsible for enlistment of NGOs and they seem to be under the mistaken understanding that welfare of Transgender persons will not cover the persons belonging to LGBTQIA+ community. The persons belonging to this community are sidelined by this society and they require societal empowerment.”

The Ministry has been further directed to take up the issue seriously, since the NGOs, who are working for the upliftment of the LGBTQIA+ community must be properly empanelled.

The Court to protect the rights of LGBTQIA+ community in Tamil Nadu directed the government to develop guidelines.

The matter will next be taken up on 02.09.2022.

[S. Sushma v. Commissioner of Police, 2022 SCC OnLine Mad 4255, decided on 22.08.2022]

ILS
Law School NewsOthers

The Indian Law Society, Pune is conducting a Diploma in Human Rights & Laws 2022-23 and is inviting applications from students and graduates.

  • The admissions for the Diploma will commence from 27th July 2022. Last date for admission is 15th August 2022.
  • Interested students can register themselves and pay the fees. Admission will be confirmed on payment of the fees.
  • Fees: Rs. 13,630/- (Current ILS students); Rs. 16,225/- (Non-ILS including Ex-students of ILS) [including GST]
  • Class Timings and Days: Every Tuesday, Wednesday and Thursday from 4.00 pm to 6.00 pm (Online).
  • Course Co-ordinator: Dr Sita Bhatia (Mob: 9881159569).
  • Lectures will begin from 16th August at 4.00 pm and will be conducted online.
  • Eligibility:  II, III, IV and V year B.A.LL.B. or All years of Three Year Law Course (LL.B.) or Graduation in any faculty.
  • Seats: Minimum 20; Maximum 50.
  • Batch II will be conducted in December 2022.
  • Assessment Pattern:
    • Written examination: 50 marks
    • Viva-voce: 20 marks
    • Dissertation: 30 marks
    • Total: 100 marks
  • Contact : smita.wadikar@ilslaw.in
  • Click Here for the Course Contents.
  • Link for Registration: Register & Pay Now
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About RGNUL

The Rajiv Gandhi National University of Law (RGNUL), Punjab, was established by the State Legislature of Punjab by passing the Rajiv Gandhi National University of Law, Punjab Act, 2006 (Punjab Act No. 12 of 2006). The University was accredited with ‘A’ Grade by National Assessment and Accreditation Council (NAAC) in 2015.

About the Centre

The Centre for Advanced Studies in Human Rights (‘CASIHR’) is a research centre under the aegis of Rajiv Gandhi National University of Law, Punjab (‘RGNUL’). The Centre’s primary objective is to undertake, support and promote advanced study and interdisciplinary research on the emerging trends in human rights and its allied fields.

About the Blog

The Human Rights Blog is a student-run space that welcomes original contributions in the field of Human Rights and Law. It aims to promote and further dialogue amongst various actors and stakeholders in the field of human rights and is a forum that provides timely, relevant, well-researched and well-edited articles.

While the blog seeks submissions on contemporary human rights issues, the editorial board may accept pieces which revisit important issues which may have gone dormant, if they provide a unique and novel perspective or have renewed scope for discussion. The contributions must include original legal analysis of human rights issues, case laws, legislation and policy making, and activism.

Theme: Human Rights and Law

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Editorial Policy can be accessed here.

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For submissions and further queries, email us at casihr@rgnul.ac.in.

Patna High Court
Case BriefsHigh Courts

Patna High Court: Right to choose a life partner on attaining a majority is inherent under the Right to Life and Personal Liberty enshrined under Article 21 of the Constitution. A recent judgment was given by the Division Bench of Ahsanuddin Amanullah, and Purnendu Singh, JJ., observed that intimate relationships between two consenting majors do not require societal recognition to get recognized under the law. Therefore, the Bench held that a girl who has attained the age of majority has the right to choose a life partner and form a family.

Background of the case

The couple, in the case at hand, got married at a temple and got their marriage registered before the marriage officer in Patna. The parents of the woman, however, did not approve of the marriage and hence took her away to Gopalganj.

The petitioner filed a habeas corpus petition seeking the production of his legally wedded wife, who was detained by her family parents. The petitioner submitted that both him and his wife, were majors and had taken a conscious decision to marry each other and live as husband and wife and further stated that his wife might get killed in the name of honour of the family.

Observations and Decision

The Bench observed that the right of men and women of marriageable age to marry and to found a family shall be recognized and no marriage shall be entered into without the free and full consent of the intending spouses (as per Article 23 of the International Covenant on Civil and Political Rights, 1966, adopted by the United Nations General Assembly). Therefore, the Bench further stated that if a girl has attained majority, she is free to marry or reside with anyone of her choice.

At this juncture, the Bench relied on the judgments of the Supreme Court in Shakti Vahini v. Union of India, (2018) 7 SCC 192 and Shafin Jahan v. Asokan KM, (2018) 16 SCC 368, wherein it was held that the free ability of a person to decide on matters like marriage cannot be limited, and further, that societal approval of intimate personal relationships is not a basis for granting them recognition in the eyes of law. Therefore, the consent of the family/clan/community is unnecessary for two individuals to marry in an act of choice, and such a right is enshrined under Articles 19 and 21 of the Constitution.

Therefore, the Bench held the woman, without opposition from her parents, was permitted to accompany the petitioner and go with him to the matrimonial home.

[Amit Raj v. State of Bihar, 2022 SCC OnLine Pat 1671, decided on 21-06-2022]


Advocates who appeared in this case :

Mr. S. D. Sanjay, Senior Advocates, Mrs. Priya Gupta, and Mr. Akshat Agrawal, Advocates, for the Petitioner/s;

Mr. Ansul, and Mr. Md. Sufiyan, Advocates, for the R8 and R9;

Mr. Prabhu Narayan Sharma, Advocate, AC to AG, for the State/R1 to R7.

Canada SC
Case BriefsForeign Courts

[6:3 verdict] Canada Supreme Court: In the recent matter, the Canada Supreme Court, deliberated upon the matter of expanded rape laws that were implemented in 2018 into the Criminal Code to remove barriers that have deterred victims of sexual offences from coming forward. The 9- Judge Bench of the Court comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ, with a ratio of 6: 3, held that the amendments introduced to the criminal code are constitutional and if required by the Judge, to deliberate upon the facts, private documents of a complainant or an accused can be used in a trial for balancing the rights and interests of the accused, the complainant, and the public.

The majority observed that “the right to a fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” nor does it guarantee “perfect justice.” Further it was added that, “the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system”

Facts and contentions of the case

J.J and Shane Reddick were accused of sexual assault in different cases in Colombia and Ontario respectively. The two accused challenged the constitutionality of Sections 278.92 to 278.94 of the Criminal Code (Code), arguing that the Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Canadian Charter of Rights and Freedom (Charter), namely:

  1. the right to silence and the privilege against self-incrimination under ss. 7 and 11(c);
  2. the right to a fair trial under ss. 7 and 11(d); and
  3. the right to make full answer and defence under ss. 7 and 11(d).

In J’s case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appealed that ruling, and J cross-appealed, contesting the constitutionality of the regime in its entirety. In Shane Reddick’s case, complainant S challenged the application judge’s interlocutory constitutional ruling, which effectively prevented her from participating in the record screening process and declared the regime unconstitutional in its entirety. The complainant was granted the right to be added as a party in the record screening process by the Supreme Court.

The Law in question

Criminal Code provisions under Sections 278.92 to 278.94 of the Criminal Code set out a record screening regime to determine the admissibility of records relating to the complainant that is in possession or control of the accused.

The Canadian Charter of Rights and Freedom, under Sections 7 and 11 guarantees the right to silence and the privilege against self-incrimination, the right to a fair trial, and the right to make full answer and defence to the accused.

The Majority Ruling

The opinion of the Court was delivered by Wagner C.J. and Moldaver J in which Karakatsanis, Martin, Kasirer, and Jamal JJ., joined. The majority made the following observations regarding the constitutionality of the “record screening process”-

Admissibility of the record

The majority deliberated that the admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter. The accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has a significant probative value. Therefore, a balance between the rights and interests of the accused, the complainant, and the public is maintained.

The majority based its following observations that the Stage One application process in s. 278.92 is not overbroad. As the definition of “record” in s. 278.1 which supports the constitutionality of s. 278.92 of the Code, includes records that come within the enumerated categories of evidence or contain information of an intimate and highly personal nature of the complainant. Hence such records that meet the admissibility threshold for screening are adduced at a trial.

Therefore, the majority opined, Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under Sections 7 and 11(d) of the Charter.

Participation of Complainant in trial

The majority deliberated that the complainant’s participation provisions in Section 278.94 in the record screening process do not violate the accused’s fair trial rights protected by Sections 7 and 11(d) of the Charter. The Court stated that firstly, the right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system. Secondly, there is no absolute principle that disclosure of defence materials inevitably impairs cross-examination and trial fairness, and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross-examination. Therefore, the participation of complainants is justified because they have a direct interest in records, for which they have a reasonable expectation of privacy, which are adduced in open court, and hence, their contributions are valuable in the trial.

The Dissent

Justice Brown found the record screening process unconstitutional for private records but constitutional for evidence of past sexual activity. He stated that the record screening regime is overbroad as the term ‘record’ under the process is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature.

“The one–sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant’s privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of “record”, combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused’s rights to a lesser extent.”

Justice Rowe agreed with Justice Brown, and explained how to make a decision when sections 7 and 11 of the Charter are brought up at the same time. He stated that accused persons must establish not only the content of the principle of fundamental justice that they allege is violated, but also that it is not outweighed by other considerations. Such an approach undermines the purpose of the broad protection of the right to a fair trial under Section 11 and the purpose of Section 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society.

Justice Côté agreed with Justices Brown and Rowe that the record screening process is unconstitutional and the analytical approach in respect of Section 7 of the Charter respectively. However, he disagreed with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. He stated that adopting a narrow category–based approach to the interpretation of “record” avoids many of the absurd results that inevitably follow from a broad interpretation. A broad interpretation will result in an absurd two–tiered system of admissibility that favours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction between information exchanged orally and information exchanged through electronic means. With respect to “adduce”, given that the record screening regime is focused on physical records rather than on a category of evidence, its plain meaning should be adopted, as it relates directly to the physical record.

Decision

With their afore-stated observations the majority concluded that Sections 278.92 to 278.94 of the Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record
applications. Hence, the Court opined that the Crown’s appeal should be allowed, J’s cross-appeal to be dismissed, S’s appeal allowed for participating in the trial and the application judges’ rulings quashed.

[R v. J.J., 2022 SCC OnLine Can SC 3, decided on 30-06-2022]

Kenya High Court
Case BriefsForeign Courts

African Court on Human and People’s Rights (‘AFCHPR’): While deciding the instant matter concerning the eviction of a Kenyan indigenous minority ethnic group — the ‘Ogiek‘ community from the Mau Forest area, the AFCHPR directed the Republic of Kenya to take all necessary measures, [legislative, administrative or otherwise] to identify, and delimit, demarcate and title the Ogiek ancestral land and to grant collective title to such land in order to ensure, with legal certainty, the Ogiek’s use and enjoyment of the same. The respondent State was also directed to pay monetary compensation for the moral and material prejudices suffered by the Ogiek due to this dispute. It is to be noted that the present decision deals only with the reparations to the affected community.

Background of the case: The instant application was filed in respect of the Ogiek of the Mau Forest. Ogiek are an indigenous minority ethnic group in Kenya comprising of about 20,000 members, about 15,000 of whom inhabit the greater Mau Forest complex – a land mass of about 400,000 hectares straddling about seven administrative districts.

In October 2009, the Kenyan Government, through the Kenya Forestry Service, issued a 30 days’ eviction notice to the Ogiek and other settlers of the Mau Forest, demanding that they move out of the forest on the grounds that the forest constituted a reserved water catchment zone, and was in any event part and parcel of government land under Section 4 of the Government’s Land Act. As per the Government, this decision was taken by the State in order to conserve the forest which is a water catchment area.

Contentions and Prayer: It was contended by the applicant that the decision by the Kenyan Government will have far reaching implications on the political, social and economic survival of the Ogiek Community. It was also contended that Kenya violated Arts. 1, 2, 4, and 17 (2) and (3) of the African Charter on Human and People’s Rights1.

The Applicant prayed before the Court to-

  • Halt the eviction of the Ogiek from the East Mau Forest and refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.
  • Recognize the Ogiek’s historic land, and issue it with legal title that is preceded by consultative demarcation of the land by the Government and Ogiek Community, and for the Respondent to revise its laws to accommodate communal ownership of property.
  • Pay compensation to the community for all the loss they have suffered through the loss of their property, development, natural resources and also freedom to practice their religion and culture.

Per contra, Republic of Kenya contended that –

  • There is no basis for a claim for compensation for any violations before the year 1992 when it became party to the Charter. It further contends that “any claim for financial compensation can only be computed from 26-10-2009 and only in relation to the notice given to the Ogiek to vacate the South-western Mau Forest.
  • The State also submitted that the instant matter is a proper case for an amicable settlement in line with Art. 9 of the Protocol to African Charter on Human and People’s Rights2.

Observations: The Court comprising of Imani D. Aboud, (President); Blaise Tchikaya, (Vice-President), Rafaâ Ben Achour, Suzanne Mengue, M-Thérèse Mukamulisa, Tujilane R. Chizumila, Chafika Bensaoula, Stella I. Anukam, Dumisa B. Ntsebeza, Modibo Sacko, JJ., and Robert Eno (Registrar); recalled that in their decision dated 26-05-2017, the Court found that the Respondent State had violated the rights of the Ogiek under Arts. 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter. It was also decided that the Court would rule on reparations in a separate judgment and invited the Parties to file submissions on reparations.

Regarding the reparations, the Court made the following observations-

  • The Right to Reparations for the breach of human rights obligations is a fundamental principle of international law. It was also observed that it is a general principle of international law that the Applicant bears the burden of proof regarding the claim for reparations. “It is not enough for the Applicant to show that the Respondent State has violated a provision of the Charter, it is also necessary to prove the damage that the State is being required to indemnify(…) There must, therefore, be a causal link between the wrongful act that has been established and the alleged prejudice”. The Court also observed that reparations must cover both material and moral damages. The Court must also take into account not only a fair balance between the form of reparation and the nature of the violation, but also the expressed wishes of the victim.
  • Regarding material prejudice, it was observed that even though the Court acknowledges that compensation is an important means for effecting reparations, it is not enough for an Applicant to show that the Respondent-State has violated a provision of the Charter; it is also necessary to prove the damage that the State is being required to indemnify. “Applicant, therefore, bears the duty of proving the causal nexus between the violations and the damage suffered. Additionally, all material loss must be specifically proved”. The Court observed that it is incontrovertible that the Respondent State’s actions resulted in violation of Ogiek community’s rights, therefore the State bears the responsibility for rectifying the consequences of its wrongful acts.
  • It was also noted that in view of the length of time over which the violations occurred, the number of people affected by the violations, the Ogiek way of life and the general difficulties in attaching a monetary value to the loss of resources in the Mau Forest etc., it is difficult to make a precise and mathematically exact quantification of pecuniary loss. Therefore, the Court must exercise its discretion in equity to determine what amounts to fair compensation to be paid to the Ogiek.
  • Regarding moral prejudice, the Court noted the contentions made by the Applicant where it was highlighted that how the Ogiek have not been able to practice their religion including prayers and ceremonies intimately connected to the Mau Forest. It was also noted that Ogiek people have also been denied access to an integrated system of beliefs, values, norms, traditions and artefacts closely linked to the Mau Forest and have had their right to development violated due to the Respondent State’s failure to consult with or seek their consent about their shared cultural, economic, and social life within the Mau Forest.
  • The Court pointed out that that the Respondent State violated the Ogiek’s rights under Arts. 2, 8, 17(2) and (3) and Art. 22 of the Charter by failing to recognise the Ogiek as a distinct tribe like other groups; by making it impossible for the Ogiek to continue practicing their religious practices; by evicting the Ogiek from the Mau Forest area thereby restricting them from exercising their cultural activities and practice; and Art. 22 was violated due to the manner in which the Ogiek were evicted from the Mau Forest.
  • It was observed that while it is not possible to allocate a precise monetary value equivalent to the moral damage suffered by the Ogiek, nevertheless, the Court can award compensation that provides adequate reparation to the Ogiek. It was also noted that since the Respondent State violated the rights that are central to the very existence of Ogiek, therefore the State is under a duty to compensate the Ogiek.
  • The Court also observed that in the context of indigenous peoples’ claims to land, demarcation is the formal process of identifying the actual locations and boundaries of indigenous lands. The Court noted that in international law, granting indigenous people privileges such as mere access to land is inadequate to protect their rights to land. “The Court wishes to emphasise though that given the unique situation and way of life of indigenous people, it is important to conceptualise and understand the distinctive dimensions in which their rights to property like land can be manifested”.
  • The Court fervently reiterated that the Ogiek have right to the land that they have occupied and used over the years in the Mau Forest Complex. “However, in order to make the protection of the Ogiek’s right to land meaningful, there must be more than an abstract or juridical recognition of the right to property. It is for this reason that physical delineation, demarcation and titling is important”.

Conclusion/ Decision: With the afore-stated observations, the Court held that

  • The Respondent State to pay the sum of KES 57 850 000 free from any government tax, as compensation for the material prejudice suffered by the Ogiek; and a sum of KES 100 000 000, free from any government tax, as compensation for the moral prejudice suffered by the Ogiek.
  • The Respondent State should undertake an exercise of delimitation, demarcation and titling in order to protect the Ogiek’s right to property, which in this case revolves around their occupation, use and enjoyment of the Mau Forest Complex and its various resources. The demarcation process is to be undertaken in consultation with the Ogiek and/or their representatives.
  • the Respondent State must take all appropriate measures, within one 1 year, to guarantee full recognition of the Ogiek as an indigenous people of Kenya in an effective manner, including but not limited to according full recognition to the Ogiek language and Ogiek cultural and religious practices
  • Respondent State, to commence dialogue and consultations between the Ogiek and their representatives and the other concerned parties for purposes of reaching an agreement on whether or not they can be allowed to continue their operations by way of lease and/or royalty and benefit sharing with the Ogiek in line with all applicable laws.

[African Commission on Human and People’s Rights v. Republic of Kenya, 2022 SCC OnLine ACTHPR 1, decided on 23-06-2022]

*Sucheta Sarkar, Editorial Assistant has prepared this brief.


1. African Charter on Human and People’s Rights

2. Protocol to African Charter on Human and People’s Rights on establishment of an African Court on Human and People’s Rights

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: On Friday, the SCOTUS decisively overruled not only the landmark ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted the American women a constitutional right to abortion, but also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11, which upheld the Roe ruling. It was held that the Constitution of United States does not confer any right vis-à-vis abortions. With this decision, the authority to regulate abortion was returned to the people and their elected representatives.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision as catastrophic. In a passionate and scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Lamenting upon the rationale behind the overruling, the Judges stated that “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision”

The Judges made some crucial observations highlighting their apprehensions and dismay over the majority decision, which are as follows:

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey understood the difficulty and divisive­ness of the abortion issue and the Bench deciding those cases was aware that Americans have profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded the afore-stated balance. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”.

“The Mississippi law at issue here bars abortions after the 15th week of pregnancy. But under the majority’s ruling, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life”.

  • The dissenting Judges noted that the majority decision would sound a death knell for women who are not financially strong. It was also pointed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for the majority decision is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering.

Either the major­ity does not really believe in its own reasoning. Or if it does, then all rights that have no history stretching back to the mid­ 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

  • “As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it”. Questioning the majority’s use of historical approach in the decision, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship… The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning.

“The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.

  • The dissenting Judges observed that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision making. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”.
  • The Judges questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases, when in the same vein he urged the Court to reconsider decisions like Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6.

“He says, “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” And when we reconsider them? Then “we have a duty” to “overrule these demonstrably erroneous decisions.”  So at least one Justice is planning to use the ticket of today’s decision again and again and again”.

  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. They noted that by overruling Roe and Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority has abandoned stare decisis, a principle central to the rule of law because “Stare decisis” means to stand by things decided.”

The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

  • Regarding majority’s view about unworkability of ‘undue burden’ standard set in Casey, the dissenting Judges opined that general standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution’s broad principles, this Court often crafts flexible standards that can be applied case-by-case to a myriad of unforeseeable circumstances.
  • In the dissenting Judges highlighted that this decision will invite a host of questions about interstate conflicts like –whether a State can bar a woman from travelling to another State to get an abortion etc.

“The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “inter- jurisdictional abortion wars.”

The dissenting Judges remarked that, Roe and Casey continue to reflect, the broad trends in American society. It is true that many Americans, including many women, opposed those decisions when issued and do so now as well. Yet the fact remains that Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. Therefore, the disruption of overturning Roe and Casey will be profound as well. Pointing out that the Mississippi’s Gestational Age Act, does not have any exception for rape or incest, even for underage women, thus the loss of Roe and Casey would be disastrous for women who will have undergo pregnancies resulting from rape or incest.

Finally the dissenting Judges observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. The decision breached a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it placed in jeopardy other rights, from contraception to same-sex intimacy and marriage; and finally, undermining the Court’s legitimacy.

With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent”.

[Dobbs v. Jackson Women’s Health Organisation, 2022 SCC OnLine US SC 9, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a far-reaching decision concerning an American woman’s right to abortion, the Court held that the Constitution of United States does not confer any right vis-à-vis abortions. This judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohib­iting abortion. Roe and Casey arrogated that authority”.

In a separate concurring opinion John Roberts, CJ., agreed with the majority on the point that the rule of viability as propounded in Roe and Casey, should be discarded as the SCOTUS seriously erred in adopting via­bility as the earliest point at which a State may legislate to advance its substantial interests in the area of abortion. “I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense”. He however, also stated that, “None of this requires the dramatic step of altogether eliminating the abortion right first recognized in Roe”.

Facts and Legal Trajectory of the Case

The re-consideration of Roe v. Wade came into the picture when Jackson Women’s Health Organisation [respondents] challenged Mississippi’s Gestational Age Act. The legislation provided that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn hu­man being has been determined to be greater than fifteen (15) weeks.”

The respondents contended before the Federal District Court that Mississippi’s law violated SCOTUS’ prec­edents establishing a constitutional right to abortion, particularly Roe and Casey. The District Court granted summary judg­ment in favor of the respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates SCOTUS decisions forbidding States to ban abortion pre-viabil­ity. The Fifth Circuit affirmed the decision.

The petitioners finally came before the Supreme Court defending the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review.

Majority Observations

The majority opinion was delivered by Justice Samuel Alito in which Chief Justice John Roberts, Clarence Thomas, Brett Kavanaugh, (concurring), Neil Gorsuch and Amy Coney Barrett, JJ., also joined. The majority considered Roe and Casey on following points-

  • The majority deliberated whether the Constitution, if properly un­derstood, confers a right to obtain an abortion. It was observed that Fourteenth Amendment’s refer­ence to “liberty” protects a particular right. However, the Constitution makes no express reference to a right to obtain an abortion, but several con­stitutional provisions have been offered as potential homes for an im­plicit constitutional right. The Court pointed out that “The Bench deciding Casey grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amend­ment’s Due Process Clause, but that theory is squarely foreclosed by the Court’s precedents, which es­tablish that a State’s regulation of abortion is not a sex-based classifi­cation and is thus not subject to the heightened scrutiny that applies to such classifications”.
  • The majority based its next observations on the History and Traditions of the Nation”. It was pointed out that the right to abortion is not deeply rooted in the Nation’s history and tradi­tion and the Due Process Clause pro­tects two categories of substantive rights – rights guaranteed by the first eight Amendments to the Constitution and rights deemed fundamental but are not mentioned anywhere in the Consti­tution. “Historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy”. Citing this reason the majority expressed its reluctance recognize rights that are not men­tioned in the Constitution. “Guided by the history and tradition that map the essential compo­nents of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abor­tion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion”.
  • Furthermore the Court stated that Roe’s analysis of historical basis of right to abortion was faulty. It was pointed out that American law followed the common law until a flurry of statutory restrictions in the 1800s ex­panded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abor­tion a crime at any stage of pregnancy. Thus Roe either ignored or misstated this part of history. The Court observed that instead of seriously pursuing the argument that the abortion right itself has deep roots in history, the supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right- right to privacy. “But the people of the various States may evaluate those inter­ests differently. The Nation’s historical understanding of ordered lib­erty does not prevent the people’s elected representatives from decid­ing how abortion should be regulated”.
  • Finally the majority applied the principles of stare decicis to analyse whether a right to obtain an abor­tion is part of a broader entrenched right that is supported by other precedents. The Court observed that while deciding Roe, none of the decisions cited involved the critical moral question posed by abortion. thus, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way. It was pointed out that doctrine of precedents “restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command”.
  • Terming Roe as egregiously wrong and in collision course with the Constitution from the day it was decided, the Court stated that Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. It was further stated that the scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. Another glaring defi­ciency was Roe’s failure to justify the critical distinction it drew be­tween pre- and post-viability abortions.
  • The argument that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause was also rejected by the Court stating that. This decision concerns the constitutional right to abortion only. Nothing in this opinion should cast doubt on precedents that do not concern abortion.

Concurring Opinion of John Roberts, CJ.,

Taking a middle ground approach, Roberts, CJ., stated that overruling the subsidiary rule is sufficient to resolve this case in Mississippi’s favour. He also pointed out that SCOTUSabortion precedents describe the right as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further not all the way to viability.  He also stated that. “I am not sure, that a ban on terminat­ing a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fif­teen weeks. I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no”.

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case”.

Concurring Opinions of Clarence Thomas and Brett Kavanaugh JJ.,

  • Justice Clarence Thomas’ concurring opinion emphasised on more funda­mental reason why there is no abortion guarantee lurking in the Due Process Clause. He stated that “substantive due process” is an oxymoron that “lacks any basis in the Constitution.” He stated that the Court should reconsider all of SCOTUS’ substantive due process precedents, includ­ing Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6“Because any sub­stantive due process decision is “demonstrably erroneous, we have a duty to “correct the error” established in those precedents. After overruling these demonstra­bly erroneous decisions, the question would remain whether other constitutional provisions guarantee the myr­iad rights that our substantive due process cases have gen­erated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment”.
  • Justice Brett Kavanugh stated that the Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. The Constitution protects un­enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in Amer­ican history and tradition.The Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected repre­sentatives to resolve through the democratic process in the States or Congress—like the numerous other difficult ques­tions of American social and economic policy that the Con­stitution does not address”.

The Dissent

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision to be catastrophic. In a scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Some of their salient observations are as follows-

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey well understood the difficulty and divisive­ness of the abortion issue and the Court was aware that Americans hold profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”. The dissenting Judges pointed out that the majority decision would sound a death knell for women who are not financially strong. It was observed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering. “Either the major­ity does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid­19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other”.
  • Questioning the majority’s historical approach, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges also pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning. “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”. The Judges also questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases when in the same vein he urged the Court to reconsider decisions like
  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. “The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

Finally the dissenting Judges simply observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent.

Decision

With their afore-stated observations the majority concluded that Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted in­terest in “protecting the life of the unborn”. These legitimate interests provide a rational basis for the Gestational Age Act.

[Dobbs v. Jackson Women’s Health Organisation, 2022 SCC OnLine US SC 9, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ unanimously ruled that imposing consecutive sentences under Section 745.51 of the Criminal Procedure Code, violates Section 12 of the Canadian Charter of Rights and Freedoms. It was observed that “Not only do such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.”

Facts and contentions of the case:

On January 27, 2019, Alexandre Bissonnette opened fire on the worshippers that were gathered in the Great Mosque of Québec for evening prayer. Six people were killed and five were seriously injured. He pleaded guilty to all charges against him, including six counts of first degree murder.

According to the Canadian Law, a person who has committed murder will be sentenced minimum to life imprisonment and would be eligible for a parole after 25 years of period of ineligibility.

The State pleaded for the imposition of Section 745.51 as the accused had committed multiple murders. This provision allows the periods without eligibility for parole for each murder conviction to be served back-to-back (consecutively). Bissonnette challenged the constitutional validity of the section. The trial court made an attempt to provide remedy for the provision by bear reading it and granting the courts to choose an additional period of ineligibility for 40 years before applying for parole. The court of appeal declared the provision unconstitutional and held that the accused serve a 25-year parole ineligibility period on each count before being able to apply for parole.

Observations made by the Supreme Court

While dismissing the appeal filed against this judgment of the Court of Appeal, the Supreme Court made the following observations:

  • Such punishments bring the administration of justice into disrepute, but they are cruel and unusual by nature and thus contrary to s. 12 of the Charter. They are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.
  • Sentences of imprisonment for life without a realistic possibility of parole may also have devastating effects on offenders, who are left with no incentive to rehabilitate themselves and whose incarceration will end only upon their death.
  • For the objective of rehabilitation to be meaningful, every inmate must have a realistic possibility of applying for parole, at the very least earlier than the expiration of the minimum ineligibility period of 50 years stipulated in the impugned provision for cases involving first degree murders.
  • Imposing consecutive 25 year parole ineligibility periods is unconstitutional must not be seen as devaluing the life of each innocent victim.

Everyone would agree that multiple murders are inherently despicable acts and are the most serious of crimes, with consequences that last forever. This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.

Along with the aforementioned observations, the court pointed out that the Parliament may not prescribe a sentence that negates the objective of rehabilitation in advance, and irreversibly, for all offenders. The penological objective is intimately linked to human dignity, that every individual has the capacity to reform and re-enter the society. In the light of this conclusion, the Court unanimously declared section 745.51 invalid from the time it was enacted in 2011. Resultantly, the law that existed before the date will continue to apply.

[R. v. Bissonnette, 2022 SCC OnLine Can SC 1, decided on May 27, 2022]

Case BriefsSupreme Court

Supreme Court: Adopting a humanitarian approach, the 3-judge Bench of Uday Umesh Lalit, S. Ravindra Bhat, and Sudhanshu Dhulia, JJ., allowed Project 39- A of the National Law University, Delhi, to have access to the appellant, a death row convict to interview him and conduct a psychological analysis in order to bring out mitigating circumstances.  

The appellant had approached the Court against the order of confirmation of the death sentence awarded by the Madhya Pradesh High Court. The Court, while admitting the appeal had stayed the execution of the death sentence of the appellant.  

Referring to the recent decision in Manoj v. State of M.P., 2022 SCC OnLine SC 677, wherein the Court has mandated for the Trial Courts to collect psychiatric and psychological evaluation report of the accused before awarding the death sentence, the Court opined that if psychological evaluation of the appellant is made before the final submissions are advanced, it will go a long way in rendering assistance to the Court.   

Hence, the Court allowed the appellant’s counsel access to the appellant to bring mitigating circumstances on record if any. The Court expressed,  

“Since the appellant has been awarded death sentence, in our view, facets of the matter touching upon the character and behaviour of the appellant would be essential in order to have complete assessment in the matter.”  

In the backdrop of above, the Court issued the following directions:   

  1. State of M.P. to place reports of all the Probation Officer(s) relating to the accused.  
  2. Place a report of the Jail Administration about the nature of the work done by the appellant while in jail.  
  3. The Director, MGM Medical College, Indore, was directed to constitute a suitable team for psychological evaluation of the appellant.  
  4. The Jail Authorities, Central Jail, Indore, where the appellant is presently lodged, were directed to render complete co-operation in facilitating access to and due evaluation of the appellant in all respects.  
  5. Ms. Baljeet Kaur, who is associated with Project 39- A of the National Law University, Delhi, was allowed to have access to the appellant to submit an appropriate Report. 

The Registry was asked to immediately send due intimation to all the authorities concerned. The matter is placed on 15-09-2022 for final disposal.  

[Karan v. State of M.P., 2022 SCC OnLine SC 732, decided on 20-05-2022]


Appearance by: 

For Appellant(s): Ms. Shivani Misra, Adv. Mr. Rajat Mittal, AOR  

For Respondent(s): Mr. P.V. Yogeswaran, AAG Mr. Yashraj Bundela, Adv. Mr. Sunny Choudhary, AOR Mr. Gaurav Choudhary, Adv. 


Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsSupreme Court

Supreme Court: In a landmark case, the 3-judge Bench comprising of L. Nageswara Rao, B. R. Gavai and A.S. Bopanna, JJ., upheld sex workers right to identity and issued detailed directions for their protection and upliftment.

The directions ranged from prohibiting police actions against consenting sex workers, police and medical protections for sex workers being victim of sexual assault, holding media accountable for voyeurism on revealing identity of sex workers to directing UIDAI to issue Adhar Card for them without insisting on address proof.

The Court invoked Article 142 of the Constitution to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. The Court remarked,

“The constitutional regard for human decency and dignity has been explicitly incorporated into Article 21 by this Court. Needless to say, this basic protection of human decency and dignity extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children.”

Constitution of Special Penal

By an order dated 19-07-2011, the Court had constituted a panel with Mr. Pradip Ghosh as the Chairman, Mr. Jayant Bhushan, Senior counsel, Usha Multipurpose Co-operative Society through its President/Secretary, Durbar Mahila Samanwaya Committee through its President/Secretary, and Roshni through Ms. Saima Hasan to assist and advise the Court for giving suitable directions in the matter. The terms of reference made to the panel were:

“(1) Prevention of trafficking,

(2) Rehabilitation of sex workers who wish to leave sex work, and

(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.”

Later on, by an order dated 26-07-2012, the Court had modified the third term of reference to conditions conducive to sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution of India.

Penal Report and Recommendations

After conducting a detailed discussion with all the concerned stakeholders, the Panel submitted a comprehensive report and the recommendations made by the panel were considered by the Union Government and a draft legislation was published incorporating the recommendations so made. Thereafter, periodically adjournments were taken by the Union government on the ground that the Bill is on the anvil.

Noticeably, the panel had recommended in respect of the third term of reference in the following terms:

  • “When it is clear that the sex worker is an adult and is participating with consent, the police must refrain from interfering or taking any criminal action. The panel noted, There have been concerns that police view sex workers differently from others. When a sex worker makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously and act in accordance with law.
  • Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance, in accordance with Section 357C of the CrPC, 1973 read with “Guidelines and Protocols: Medico-legal care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
  • Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or victimised.
  • The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases of adult women, who are detained against their will can be reviewed and processed for release in a time-bound manner.
  • Police should treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.

“It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as if they are a class whose rights are not recognised. The police and other law enforcement agencies should be sensitised to the rights of sex workers who also enjoy all basic human rights and other rights guaranteed in the Constitution to all citizens.”

  • The Press Council of India should be urged to issue appropriate guidelines for the media to take utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations, whether as victims or accused and not to publish or telecast any photos that would result in disclosure of such identities.
  • The newly introduced Section 354C, IPC which makes voyeurism a criminal offence, should be strictly enforced against electronic media, in order to prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue operation.
  • Measures that sex workers employ for their health and safety (e.g., use of condoms, 12 etc.) must neither be construed as offences nor seen as evidence of commission of an offence.
  • The Central Government and the State Governments must involve the sex workers and/or their representatives in all decision-making processes, including planning, designing and implementing any policy or programme for the sex workers or formulating any change/reform in the laws relating to sex work.
  • The Central Government and the State Governments should carry out workshops for educating the sex workers abut their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. Sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.
  • No child of a sex worker should be separated from the mother merely on the ground that she is in the sex trade. Further, if a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done to determine if the claim is correct and if so, the minor should not be forcibly separated.”

Directions by the Court

Considering that no legislation has been made till date even though the recommendations were made by the Panel in the year 2016, the Court exercised its powers under Article 142 of the Constitution to implement the abovementioned recommendations. Accordingly, the State Governments/ UTs were directed to act in strict compliance of the recommendations by the panel. Similarly, the competent authorities under the Immoral Traffic (Prevention) Act, 1956 were directed to comply with the provisions of the Act while the Union Government was directed to file its response to the recommendations made by the panel within a period of six weeks. The Court added,

“It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution of India. The Constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act,1956.”

Aadhaar Card for Sex Workers

With regard to non-issuance of Aadhaar Cards to sex workers as they were unable to produce proof of their residence, earlier, the Court had issued notice to UIDAI and sought its suggestions in respect of waiving the requirement of residence proof for the sex workers. The UIDAI had proposed that sex workers who are on NACO’s list can be issued Aadhar Cards without having to submit a residence proof, provided a ‘proforma certificate’ is submitted by a Gazetted Officer at NACO (National AIDS Control Organisation) or the State Health Department certifying the particulars of the applicant.

Some suggestions had been made by the organisations representing sex workers for the procedure to be followed by UIDAI; i.e. the procedure to obtain Adhar by sex workers should be publicize through outreach under the Targetted Intervention Programmes and issuance of the Adhar Cards should not be restricted to sex workers on the NACO list but also be extended to those who are identified by CBOs after verification. Since UIDAI had accepted the given suggestions, the Court directed that Aadhar Cards shall be issued to sex workers. The Court emphasized,

“There shall be no breach of confidentiality in the process, including assignment of any code in the Aadhar enrolment numbers that identify the card holder as a sex worker.”

The matter is listed on 27-07-2022 for further hearing.

[Budhadev Karmaskar v. State of W.B., 2022 SCC OnLine SC 704, order dated 19-05-2022]


Kamini Sharma, Editorial Assistant has put this report together


Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: The instant matter revolved around a challenge to the constitutionality of Section 33.1 of the Criminal Code which dealt with the unavailability of self-induced intoxication as a defence for criminal acts like assault etc. The bench of the Court comprising of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ., in an unanimous decision, held that, Sec. 33.1 violates S. 7 of the Canadian Charter of Rights and Freedoms by allowing a conviction without proof of mens rea or proof of voluntariness. It was observed that, “Section 33.1(1) of the Criminal Code eliminates the defence of self-induced intoxication akin to automatism applied to violent offences… Section 33.1 does not create a new predicate act offence of self-induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence.”

Facts of the Case: The appellant [hereinafter ‘B’], at a house party, had consumed ‘magic mushrooms’ which is a hallucinogen. The consumption of the drug led to ‘B’ losing his grip over reality. As per ‘B’, he was not simply drunk or high: while capable of physical movement, he was in a psychotic state and had no willed control over his actions.

He broke into the nearby house of a stranger and attacked the occupant, causing permanent injuries. He further broke into another residence and the occupants called the police. Consequently, ‘B’ was charged with break and enter and aggravated assault, and mischief to property.

Contentions: The appellant contended that he is not guilty of the offences by reason of automatism. The appellant’s contentions were corroborated by the expert witnesses who confirmed that ‘B’ had no voluntary control over his conduct at the time.

The respondent (the Crown) invoked S. 33.1 of the Criminal Code preventing ‘B’ from relying on self-induced intoxication akin to automatism as a defence to the charge of aggravated assault. The respondents stated that the Canadian Parliament added S. 33.1 in response this Court’s ruling in Henri Daviault v. Her Majesty the Queen, 1994 SCC OnLine Can SC 83, wherein the majority had confirmed a common law rule that intoxication is not a defence to crimes of general intent.

The respondents, however, prayed to the Court to interpret S. 33.1 as validly imposing liability for violent crimes based on a standard of criminal negligence

Observations: Perusing the facts and contentions of the case, Justice Kasirer (who delivered the unanimous decision) observed that the impugned provision does not establish a proper measure of criminal fault by reason of intoxication; instead, it imposes liability for the violent offence if an accused interferes with the bodily integrity of another “while” in a state of self-induced intoxication rendering them incapable of consciously controlling their behaviour.

Given the gravity of the issue, the Court some salient observations –

  • It was held that the provision is violative Canadian Charter of Rights and Freedoms because an accused person under the impugned provision is not being held to account for their conduct undertaken as free agents, instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit. “To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of S. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.”
  • The Court observed that the impugned provision also transgresses the right to be presumed innocent until proven guilty guaranteed by S. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond reasonable doubt.
  • The Court noted that the rights of victims of intoxicated violence, in particular the rights of women and children, should be considered at the justification stage under S. 1 of the Charter rather than informing the analysis of a possible breach of the accused’s rights under S. 7. “Balancing competing Charter rights under the breach analysis should occur where the rights of the accused and another party conflict and are directly implicated by state action. The equality, dignity and security interests of vulnerable groups informed the overarching public policy goals of Parliament but they are best considered under S. 1”.

Along with the aforementioned observations, the Court pointed out that the Parliament has before itself a strong record that highlights the strong correlation between alcohol and drug use and violent offences, in particular against women. The issues regarding ensuring the equality, dignity, and security rights of all victims of intoxicated violence must be looked upon thoroughly by the Parliament, therefore it is all the more necessary that the Crown must show on a balance of probabilities that the limits of Ss. 7 and 11(d) of the Charter brought by S. 33.1 are reasonable and demonstrably justified under S. 1 of the Charter. “Given the patent risk that S. 33.1 may result in the conviction of an accused person who had no reason to believe that their voluntary intoxication would lead to a violent consequence, S. 33.1 fails at the proportionality step and thus cannot be saved under S. 1”.

[R. v. Brown, 2022 SCC OnLine Can SC 13, decided on 13.05.2022]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: Stating that, the intention of a person can be gathered from the words spoken or written or other expressions, Sanjay Dhar, J., expressed that,

Expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.

The petitioner had challenged an FIR for the offence under Section 13 ULA(P) Act.

In the petition, it was stated that, the petitioner was an advocate practising for last about 10 years. In 2018, six civilians were killed and more than 60 injured men, women and children in a blast.

Further, it was averred that the petitioner being a resident of the village in which the tragedy had happened, made certain comments regarding the incident on Facebook. According to the petitioner, the theme of the said posts was that there had been negligence which led to the killing of the above-said civilians and that the District Police, Kulgam, and the local administration were principally responsible for the same.

Petitioner submitted that, there was nothing illegal in the posts which were uploaded by him on his Facebook, but an impugned FIR was registered branding the petitioner as an anti-national element.

Analysis, Law and Decision


High Court on perusal of Section 13 of ULA(P) Act stated that a person can be punished for unlawful activities, if he takes part in or commits, advocates, abets, advises or incites the commission of unlawful activity. Even if a person assists any unlawful activity of any association declared as unlawful, he can be subjected to punishment under the aforesaid provision.

The Bench noted that some portions of the first post highlighted that the petitioner advocates that the people of Kashmir are slaves, and it is under occupation which is like cancer. The other post indicated that the petitioner was advocating that this part of the country was under the occupation of the Indian Military.

In Court’s opinion, the freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the country or its people.

It is one thing to criticize the Government for its negligence and express outrage on the violation of human rights of the people but it is quite another to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country.

The Bench expressed that, the petitioner was advocating and supporting the claim that Jammu and Kashmir were not a part of India and that it was occupied by the Indian military with the people having been reduced to the status of slaves. Thus, he was questioning the sovereignty and territorial integrity of the Country.

“…petitioner by uploading these posts has cross the Lakshman Rekha which demarcates the freedom of expression guaranteed under Article 19 of the Constitution of India from the reasonable restrictions imposed on such freedom on the ground of sovereignty and integrity of India.”

Hence, the petitioner’s act, prima facie fell within the definition of ‘unlawful activity’ as contained in Section 2(o) of the ULA(P) Act punishable under Section 13 of the Act.

Lastly, the Court held that quashing the proceedings at present would amount to stifling a genuine prosecution, which is not permissible in view of the Supreme Court decision in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 SCC Online SC 315. Therefore, the petition was dismissed. [Muzamil Butt v. State of J&K, 2022 SCC OnLine J&K 272, decided on 22-4-2022]


Advocates before the Court:

For the Petitioner: M.A. Qayoom, Advocate

For the Respondent: Asifa Padroo, AAG

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of a media report that the police personnel of Mehrauli Police Station subjected a woman to extreme torture by stripping her and brutally beating with a belt in Lalitpur District of Uttar Pradesh. Reportedly, she was working as a domestic help at the residence of a police officer on the allegations of a theft in the house.

The Commission has issued notices to the Chief Secretary and the Director-General of Police, Uttar Pradesh calling for a detailed report in the matter within four weeks including action against the responsible police officer and any relief granted the victim by the authorities.

The Commission has observed that the contents of the media reports if true raise a serious issue of violation of human rights to the victim. The Police Officer and his family have not only misused their position but also subjected the victim to physical torture and cruelty.

According to the media report, the wife of the police officer locked the victim at her home in the evening of 2nd May, 2022. Her husband, a police official, came along with a lady Inspector and started interrogating her about a theft in the house. Besides beating her brutally, they also subjected her to water cannon and electric shocks to force her accept the allegations.

Later, sensing that the matter may snowball into a controversy, she was called to the Mehrauli police station where the police personnel tried to project the matter as a dispute with her husband and also initiated action against him for disturbing the peace.


National Human Rights Commission

[Press Release dt. 7-5-2022]

Case Briefs

The National Human Rights Commission, India has taken suo motu cognizance of a media report that four sanitation workers have died after inhaling toxic gases while cleaning a sewage tank in Budha Khera village in Hisar district of Haryana.

The Commission has issued notice to the Chief Secretary of Haryana, calling for a detailed report on the matter within six weeks. The report is expected to include the action taken against the responsible officers and relief granted to the families of the victims.

The Commission has observed that the incident indicates that despite the avoidable and unwarranted deaths in sewers; and sheer indignity of the work, hazardous cleaning of septic tank without safety equipment continues.

The Commission has been emphasizing upon use of machines for cleaning septic tanks, sewage plants etc. and to ensure proper safety equipments for the workers but such painful incidents are taking place frequently.

Due to negligence and apathy by the authorities concerned, precious human lives have again been lost. Their human rights have been grossly violated.

The Commission has noticed that in this case, the victims are in the age of 25 to 28. Deaths of such young men in these kind of tragic incidents could be averted had proper precaution been taken by the responsible authorities. Such incidents are indeed indicative of reckless attitude of the civic authorities violating human rights of the poor and innocent workers.

Issuing the notices, the Commission has observed that a large number of workers have died within a short span of time while undertaking the sewage/ septic tank cleaning work. It has been taking cognizance of such matters for quite some time now and trying its best to sensitize the authorities to take all precautions during the time of cleaning of the sewage tanks so that precious human lives are not lost.

Further, the Commission observed that in spite of specific judgments given by the Supreme Court and guidelines issued from time to time by different government agencies, the sewage cleaning workers are still being exposed to extreme danger and subjected to indignity by the public authorities.


National Human Rights Commission

[Press Release dt. 23-4-2022]

Case Briefs

The National Human Rights Commission, India has taken a suo-motu cognizance of a media report of the incident where a dalit man was allegedly forced to rub his nose in his own spit in front of a village Sarpanch and locals in Kendrapada district of Odisha.

The Commission has issued notice to the Odisha Chief Secretary calling for a report within six weeks including status of investigation of the case, which has been reportedly registered by the police, as well as the status of statutory relief paid to the victims.

Examining the contents of the news report, the Commission has observed that the issues raised are of a very serious nature and the right to dignity of the victims have been grossly violated.

As per the media report, the incident occurred when the Sarpanch of Tikhiri village in Bhubaneswar visited the victim’s house seeking donations for a temple. The man reportedly said that he had already donated an amount, which made the Sarpanch angry. He further allegedly abused him and his wife in front of locals. An FIR has been reportedly registered under various sections of the IPC and under relevant provisions of the Protection of the Scheduled Castes & the Scheduled Tribes Act, 1989.


National Human Rights Commission

[Press Release dt. 22-4-2022]

Case BriefsSupreme Court

Supreme Court: The 3-Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat and P.S. Narasimha, JJ., issued notice to Madhya Pradesh government on being appraised that there is a policy of incentivising public prosecutors for obtaining capital punishments in matters prosecuted by them.

Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.

Siddhartha Dave, Senior Advocate and K. Parameshwar, Advocate was appointed as Amicus Curiae to assist the Court in the Matter. Additionally, the Court had also heard K.K. Venugopal, Attorney General for India, Siddharth Agarwal, Advocate, representing Project-39A, Gaurav Agrawal, Advocate for NALSA and Rukhmini Bobde, Advocate representing State of Madhya Pradesh.

Accepting the Attorney General’s proposal to place on record relevant material pertaining to other jurisdictions to assist the Court in deciding the matter, the Bench has granted liberty to all the counsels engaged in the instant matter to place on record any material that would render assistance to the Court.

Considering that the matter required consideration at an early date, the Bench issued additional directions to the counsels that the needful be done within 10 days.

The State was directed to place on record the concerned Policy along with submissions in support of said Policy. The matter is listed on 10-05-2022 for further hearing.

[Irfan v. State of M. P., Writ Petition (Cri) No. 142 of 2022, order dated 22-04-2022]


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Delhi High Court: Expressing that, RTI Act is a tool that facilitates the employees and officers in airing their grievances systematically, the Division Bench of Manmohan and Sudhir Kumar Jain, JJ., remarked that,

“…both service and RTI laws ‘act like a safety valve in the society’.”

Respondent 2 was working as a Superintendent in Administration with Enforcement Directorate. She had filed an application under the Right to Information Act, 2005 seeking the following information:

(1)copies of all the seniority list in respect of LDCs for the period of 1991 till date;

(2)copies of the proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time.

Analysis, Law and Decision

The appellant is an intelligence and security organization specified in second schedule of the RTI Act and is exempt from the purview of the RTI Act except when the information pertains to allegation of corruption and human rights violation.

Instant matter involved interpretation of Section 24 of the RTI Act.

It was stated that the Division Bench of this Court in Esab India Ltd. v. Special Director of Enforcement, 2011 SCC OnLine Del 1212, upheld the Constitutional validity of Section 24 of the RTI Act.

Further, the Court expressed that the appellant being an intelligence and security organization was exempt from the purview of the RTI Act except when the information pertained to allegations of corruption and human rights violation.

The expression ‘human rights’ cannot be given a narrow or pedantic meaning. Human rights are both progressive and transformative.

Whether the information sought by the respondent falls within the expression human rights?

Bench opined that,

Human rights have been used for a variety of purposes, from resisting torture and arbitrary incarceration to determining the end of hunger and of medical neglect.

In the present matter, non-supply of the information/documents is a human rights violation as in the absence of the same respondent 2 would not be able to agitate her right to promotion.

High Court expressed that, if employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic.

Information pertaining to proposals for promotion of third parties cannot be provided to the respondent in view of Section 11 of the RTI Act.

Hence the High Court held that the information pertaining to proposals for the promotion of third parties cannot be provided to the respondent in view of Section 8(1)(j) and 11 of the RTI Act.

Lastly, the Court directed the appellant to provide copies of all the seniority list in respect of LDCs for the period of 1991 till date as well as copies of the proposal for promotion of respondent (LDC) placed before the DPC together with copies of the Minutes of the Meetings and copy of the promotion/rejection order issued on the recommendations of DPC from time to time.

In view of the above present appeal was disposed of. [Union of India v. CIC, 2022 SCC OnLine Del 824, decided on 22-3-2022]


Advocates before the Court:

For the appellant:

Mr Amit Mahajan, CGSC

Mr Dhruv Pande, Advocate.

For the Respondents:

Mr Shiv Kumar, Advocate for R-2 with respondent 2 in person.

Case BriefsInternational Courts

OHCHR (WGAD): While addressing the issue of alleged arbitrary detention of Ms. Marie-Emmanuelle Verhoeven in Tihar Jail, New Delhi, from the period of February 2015 till July 2016 and her claim for compensation [IPA No 15 of 2018], which is currently pending in the Delhi High Court having been filed by Ms. Verhoeven as a Civil Suit on 24 July 2018 against the Union of India,  the Vice-Chair of the WGAD, Miriam Estrada-Castillo observed that,

Without prejudging the accuracy of these allegations, we express concern that the detention of Ms. Verhoeven, if confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights”

 

Pertinent Facts: Marie-Emmanuelle Verhoeven is a French citizen who spent a part of her life in Chile from 1985 to 1995. During her stay in Chile, Verhoeven was a member of the Latin American Economic and Social Committee and later joined the United Nations Economic Commission for Latin America and the Caribbean [UNECLAC] or CEPAL [Spain] in Chile. She also participated in Special Human Rights Missions.

Ms. Verhoeven had been visiting India for spiritual reasons in the past. On 16th  February 2015, she entered India from Nepal based on a valid visa issued by the Embassy of India in France. She was arrested in Uttar Pradesh on 16th  February 2015 because of an Interpol Red Corner Notice dated 27th January 2014 at the request of the Chilean Government and was brought to Delhi on February 21, 2015. This Red Corner Notice dated 27th January 2014 formed the subject matter of a previous Extradition Request made by Chile to Germany. By its Judgment of 6 June 2014, the Hanseatic Higher Regional Court at Hamburg, Germany  had declared the Extradition Request of Chile as illegal and set Ms. Verhoeven  free.

 

Legal Trajectory: By an order dated February 24, 2015, the Additional Chief Metropolitan Magistrate, [ACMM] Patiala House District Court, New Delhi,  directed the provisional arrest of Ms. Verhoeven under Section 34B of the Extradition Act, 1962. She was remanded to judicial custody from time to time and was detained at Tihar Jail, New Delhi from February 2015 till July 2016. At the time of her provisional  arrest on 24 February 2015, there was no extradition treaty between India and Chile.

The matter reached Delhi High Court in March 2015. A Gazette of India Notification No. 267, Part II, dated 29th April 2015 and the Order dated 28th April 2015, were issued by the Government  of India  recording the Extradition Treaty between the Republic of India and the Republic of Chile. Ms Verhoeven challenged the constitutional validity of this Notification and contended before the Delhi High Court inter alia that this Extradition Treaty [emerging from this Notification] could not be applied retroactively to her while she was still in detention, as this was based on a Treaty between Great Britain and Chile of 1897. She also argued that there was no record of such a treaty in the official archives  either in India or in Chile.

 

On 21st September 2015,  the Division Bench of G. Rohini, CJ., and Jayant Nath, J., in Verhoeven, Marie-Emmanuelle v. Union of India and another, 2015 SCC OnLine Del 12166, held that Ms. Verhoeven’s detention was illegal. However, she was not released from the prison on 21 September 2015. The Delhi High Court upheld the constitutional validity of the Extradition Treaty between India and Chile.

 

Ms. Verhoeven was re-arrested by the ACMM, Patiala House District Court, New Delhi on September 22, 2015 on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi

 

On 29th September 2015, a Habeas Corpus Writ Petition was filed by Ms. Verhoeven in the Supreme Court of India challenging her illegal detention. On 13th October 2015, Ms Verhoeven also challenged [by way of a Special Leave Petition in the Supreme Court of India], the dismissal by the Delhi High Court of her challenge to the Extradition Treaty which had been resuscitated by the Indian Government from 1897 on the basis of the Extradition Treaty between Great Britain  and Chile, [when India was under the British Empire], and was retroactively made applicable to her by the Indian Government  while she was already in detention.

 

In December 2015, during the illegal detention of Ms Verhoeven on the basis of the Note Verbale dated 21 September 2015 of the Chilean Embassy in New Delhi, the Indian Government filed a second extradition proceeding against Ms Verhoeven, based on the India/Chile Treaty.

 

On 28th April 2016, the Division Bench of the Supreme Court of India  comprising  Madan B. Lokur and N.V. Ramana, JJ., in Verhoeven, Marie-Emmanuelle  v. Union of India, (2016) 6 SCC 456 , held that a binding extradition treaty between India and Chile existed and upheld Ms.Verhoeven’s arrest and detention on the basis  of the  Note Verbale of the Chilean Embassy in New Delhi, dated  September 21, 2015.  Her Habeas Corpus Writ Petition was dismissed by the Supreme Court of India by this Judgment.

On 2nd July 2016, Ms Verhoeven was released on bail by the ACMM, Patiala House District Court, New Delhi

On July 26, 2017, the ACMM, Patiala House District Court, New Delhi, discharged Ms. Verhoeven, based on the Indian Government’s request to withdraw the Extradition Case  and she returned to her homeland in France on 27th July 2017.

 

Contentions raised by Ms. Verhoeven:   Ms. Ramni Taneja, Advocate, representing the aggrieved individual, contended before the WGAD, OHCHR, that the detention of Ms. Verhoeven was illegal and arbitrary in nature. She further raised questions on the disputed existence of an extradition treaty between India and Chile and submitted that the extradition treaty was retroactively applied to the case of her client, which is impermissible in law. She further asserted that Ms. Verhoeven’s re-arrest on September 22, 2015 was based on a Note Verbale dated 21st September 2015 issued by the Embassy of Chile in New Delhi and was therefore without legal foundation.

The contentions also drew attention to the poor condition in the prison cells where Ms. Verhoeven was kept and the lack of medical attention, consular rights etc.

Finally, it was argued that the concerned authorities in India should have abided by Interpol’s request on May 30, 2015 that, it erased all files concerning Ms Verhoeven, which meant that she would have been released immediately. It was thus contended by Counsel that Ms. Verhoeven’s detention was without legal basis.

 

Observations of the Working Group: While deliberating upon the matter, the WGAD made it clear that their observations are being made “without prejudging the accuracy of the allegations made by Ms. Verhoeven”. The Working Group-

  • Expressed its concern over the detention of 17 months stating that, “If confirmed, may have been arbitrary, in violation of Article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights. The prohibition of arbitrary deprivation of liberty is part of treaty law, customary international law. It constitutes a jus cogens norm and is fully applicable in all situations”.

 

Expressed its concern “at the allegations of poor conditions of detention which Ms. Verhoeven was subjected to, of denial of requested medical attention, of denial of consular rights, and abusive restrictions of family contact, which further contravene several important rights to medical care, to consular assistance and to contacts with family, as codified in the Standards Minimum Rules for the Treatment of prisoners, revised in 2015 as the “Mandela Rules”.

 

With the aforesaid observations, which were issued to the Permanent Mission of India at Geneva by the WGAD on 21st December 2021, clarifications were sought by the WGAD  from the Government of India  in the form of an Urgent Appeal regarding the allegations raised by Ms. Verhoeven.

 

On 16th February 2022, the Government of India submitted its response to the Urgent Appeal of the WGAD, OHCHR. On the website of the OHCHR the following is stated therein:

The Government’s reply is not made public due to its confidential nature.”

[Read the Order HERE ]

 

[Mandate of WGAD, Ref.: AL IND 22/2021, issued on 21-12-2021]


Sucheta Sarkar, Editorial Assistant has put this report together.