Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

   

Jammu and Kashmir and Ladakh High Court: While deciding the instant petition wherein the issue was that whether the change of user (misuse of a building from residential to commercial or vice versa) in violation of the permitted land use as per the master plan for an area to which the Jammu and Kashmir Control of Building Operations Act, 1988 applies, would fall within the ambit of unauthorized ‘erection or re-erection' as contemplated under Section 7 read with Section 8 of the afore-stated 1988 Act; the Division Bench of Wasim Sadiq Nargal and Tashi Rabstan, JJ., observed that in a democratic polity governed by the rule of law, the State by no stretch of imagination, can deprive a citizen of his/her property without the sanction of law, besides complying with the procedure envisaged in the statutory provision.

Facts and Contentions: The petitioners were aggrieved with the sealing of their property, for which a notice was issued as per the provisions of Jammu and Kashmir Control of Building Operations Act, 1988. However, the petitioners alleged that no such notice was ever served to them before their properties were sealed.

The counsel for the petitioners contended that no notice was served upon them, and their properties were sealed without affording them any chance of being heard, which in turn violated the principles of natural justice. It was also submitted that the respondents did not apply their mind and verified the ground reality concerning the petitioners' property while issuing the impugned notice.

Per contra, the respondents argued that the petitioners were renovating the building for commercial use which necessitated the action of sealing the building for the purpose of carrying out the provisions of the 1988 Act.

Observations

  • Perusing the impugned notice and the relevant provisions of Jammu and Kashmir Control of Building Operations Act, 1988, the Court pointed out that it was not apparent as to what was the nature of work the petitioners commenced which led the respondents to conclude that the building would be put to commercial use. It was further noted that no record or details of the commercial activities have been specified in the impugned notice.

  • It was observed that the Building Operation Controlling Authority is empowered to pass an order of sealing in appropriate cases. However, exercise of such power rests upon the nature of allegations justifying such exercise. Each and every violation of building permission would not justify invoking the power to seal the premises followed by an order of demolition.

  • The Court also pointed out that Sections 7 and 8 of the 1988 Act are interlinked, inasmuch as sealing order can be issued in respect of such erection or re-erection about which action under Section 7 has been or is intended to be taken. A conjoint reading of Sections 7 and 8 of the 1988 Act makes it clear that Section 7(1) provides for issuance of show cause notice and Section 7(3) provides for passing the demolition order, if the show cause notice is not replied or the reply is not satisfactory. It also provides for hearing the person to whom the notice has been issued before issuing demolition order under Section 7(3) of the Act.

  • Regarding the principles of natural justice, the Court stated that where any action or an order which is likely to have consequence or depriving a person from legal possession of the property, is to be taken or is to be passed by a statutory authority, an opportunity of hearing should be given to him or her firstly and only thereafter, such order could be passed. The minimum requirement of principles of natural justice is that no person shall be condemned unheard before passing any order which violates an individual’s rights.

  • Depriving a person of his property without adopting a due course of law amounts to violation of his constitutional right as enshrined in the Constitution. Art. 300-A of the Constitution provides that no person shall be deprived of his/her property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. To forcibly dispossess a person of his private property without following due process of law would be violative of a human right and also the constitutional right.

Decision: With the afore-stated observations, the Court held that neither the respondents specified any reasons regarding commercial activity being carried by the petitioners nor they have specified the reason that how the petitioners have put the building for commercial use. There is no whisper in the impugned notice about any erection, re-erection or work of premises in which such erection, re-erection; and the notice was issued without any application of mind.

The Court thus quashed the impugned sealing notice issued under the provisions of Jammu and Kashmir Control of Building Operations Act, 1988 and directed the respondents to de-seal the properties.

[Meenakshi Chouhan v. Jammu Municipal Corpn., 2022 SCC OnLine J&K 593, decided on 29-07-2022]


Advocates who appeared in this case :

Rohit Kohli, Advocate, for the Petitioners;

S. S. Nanda, Sr. AAG, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case BriefsSupreme Court

Supreme Court: While reversing the impugned decision of the Bombay High Court, M.R. Shah* and B.V. Nagarathna, JJ., held that the prices mentioned in the Ready Reckoner cannot be the basis for determining compensation for the land acquired under the Land Acquisition Act, 1894. 

By the instant appeal, Bharat Sanchar Nigam Limited (BSNL) had assailed the impugned order of the Bombay High Court enhancing amount of compensation for the acquired land by mainly relying upon the prevailing Ready Reckoner rates of the land. 

Background  

The respondents’ land was acquired by the State Government for BSNL. The Land Acquisition Officer declared the award determining the total compensation at Rs.14,33,703/- (at Rs.13.32 per sq. ft.). At the instance of the respondents, a reference was made to the Reference Court, which enhanced the amount of compensation to Rs.21/- per sq. ft.  

In appeal, the Bombay High Court enhanced the amount of compensation to Rs.174/- per sq. ft. (more than 800% of the Reference Court compensation and about 1300% of the compensation awarded by the Land Acquisition Officer).  

The Rule for Determination of Compensation  

In Jawajee Nagnatham v. Revenue Divisional Officer, A.P., (1994) 4 SCC 595, and Krishi Utpadan Mandi Samiti v. Bipin Kumar, (2004) 2 SCC 283, the Court while determining whether the prices mentioned in the Ready Reckoner can be the basis for determining the compensation for the land acquired under the Land Acquisition Act had observed and held that the amount of compensation for the land under the Land Acquisition Act is determined by adopting the method of valuation namely,  

(1) opinion of experts;  

(2) the price paid within a reasonable time in bona fide transactions of purchase of the land acquired or the land adjacent to the land acquired and possessing similar advantages; and  

(3) a number of years purchase of the actual or immediately prospective profits of the land acquired.  

It was observed that in determining the market value, the Court has to take into account either one or the other of the three methods to determine the market value of the land appropriate to the facts of a given case to determine the market value. Subsequently, in Lal Chand v. Union of India, (2009) 15 SCC 769, the Court observed that the market value of the land under Section 23 of the Land Acquisition Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers’ maintained for the purpose of collection of proper stamp duty.  

Following the aforementioned views, the Court opined that the prices mentioned in the Ready Reckoner for the purpose of calculation of the stamp duty, which are fixed for the entire area, cannot be the basis for determination of the compensation under the Land Acquisition Act.   

Relying on Chimanlal Hargovinddas v. LAO, (1988) 3 SCC 751, the Court opined that there may be various factors, which are required to be considered for determining the market value of the land. The market value of the land depends upon the location of the land; area of the land; whether the land is in a developed area or not; whether the acquisition is of a small plot of land or a big chunk of land and the number of other advantageous and disadvantageous factors are required to be considered.  

Hence, the Court held that there cannot be a uniform market value of the land for the purpose of determination of the compensation for the land acquired under the Land Acquisition Act and that the market value of the different land varies from place to place and it depends upon various factors as observed hereinabove.  

Analysis of the Impugned Decision  

Finding the impugned decision per incuriam, the Court noted that the High Court had not followed the decisions laid down in Jawajee Nagnatham (supra) and Krishi Utpadan Mandi Samiti, Sahaswan (supra), on whether while determining the compensation for the land acquired under the Land Acquisition Act, the Ready Reckoner prices, which are for the determination of the stamp duty can be considered or not. Hence, the Court held that the High Court had seriously erred in not following the aforementioned decisions which were binding on it under Article 141 of the Constitution.  

Therefore, the Court held that the High Court was wrong in enhancing the amount of compensation by 800% from Rs. 21/- per sq. ft. to Rs. 174/- per sq. ft. relying upon the rates mentioned in the Ready Reckoner. 

Conclusion  

In view of the above, the appeal was allowed and the impugned decision was set aside. The judgment passed by the Reference Court determining the compensation at Rs.21/- per sq. ft. was restored. 

[BSNL v. Nemichand Damodardas, 2022 SCC OnLine SC 815, decided on 11-07-2022]  


Judgment by: Justice M.R. Shah 


Appearance: 

For BSNL: Senior Advocate R.D. Agrawala  

For State: Advocate Sachin Patil  

For Respondents: Senior Advocate Kiran Suri 


Kamini Sharma, Editorial Assistant has put this report together 

Madhya Pradesh High Court
Case BriefsHigh Courts

   

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a petition which was filed against the order passed by Twelfth Civil Judge, Class II by which the application filed by the petitioner for conducting DNA test of Hemlata Yadav had been rejected.

Husband of the petitioner had filed a civil suit against the respondents/defendants for partition but during the pendency of this suit, he died. Application for bringing the petitioner as legal representative on record was moved but respondent 2 raised objections stating that Hemlata Yadav should’ve been impleaded as the legal representative as she was the daughter of the Petitioner’s husband. The petitioner then moved an application under Order 26 Rule 10 (A) CPC read with Section 45 of Evidence Act, 1872 on the ground that she had never given birth to any child and accordingly, it was prayed that the DNA test of Hemlata Yadav may be conducted so that it could be ascertained that Hemlata Yadav was not the daughter of her husband.

Counsel for the petitioner submitted that where the question of property is involved and the paternity of the person is also in dispute, then a direction for DNA test may be issued.

The Court put forward judgment of the Supreme Court where it was held that the courts in India cannot order blood test as a matter of course. There must be a strong prima-facie case to the effect that the husband had no access in order to dispel the presumption arising under Section 112 of Evidence Act and the court must carefully examine as to what would be the consequence of ordering the blood test i.e. whether it will have the effect of branding a child as a illegitimate child or mother as an unchaste woman. Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

Directions for conducting the DNA test is also violative of privacy of a individual.

The Court further reiterated the Supreme Court judgment of Ashok Kumar v. Raj Gupta, (2022) 1 SCC 20.

The Court dismissed the appeal upholding the order of the Trial Court explaining that it is not the case of the petitioner that Hemlata Yadav was born prior to her marriage with late husband of the petitioner. The presumption as provided under Section 112 of Evidence Act is a rebuttable presumption and the petitioner will get every opportunity to rebut the said presumption in the trial.

[Urmila Singh v. Saudan Singh, Writ Petition No. 4131 of 2017, decided on 26-07-2022]


Advocates who appeared in this case :

Mr P.C. Chandil, Advocate, for the Petitioner;

None for the respondents.


*Suchita Shukla, Editorial Assistant has reported this brief.

Punjab and Haryana High Court
Case BriefsHigh Courts

   

Punjab and Haryana High Court: Alka Sarin, J., while dismissing the appeal preferred by the plaintiff against the judgments passed by the trial court and the appellate court held that when a suit land is not partitioned and the parties to the suit are the co-sharers and co-owners, each and every co- sharer and co-owner is in possession of every inch of land.

Facts:

Plaintiff and his brothers were in exclusive possession as co-sharers of the suit land for more than the last 30 years as co-sharers. The brothers of the plaintiff reside in England and the plaintiff is cultivating their share in the suit land but the suit land along with other land joint with owners.

Arguments:

The plaintiff alleged that the defendants started threatening him to interfere in his lawful, peaceful, and exclusive possession of the said land, illegally and forcibly.

The defendants alleged that by way of mutual adjustment, the defendant and their brothers have been in possession of a certain portion of the land wherein they constructed their residential houses. It was also stated that the defendants have kept a wide space from the eastern portion of land comprised in the portion of the land on the eastern side in which the gates of the residential houses of the defendant open and they have been using the space out of southern portion for approach as a passage to their residential house without any sort of obstruction for last more than 20 years as a matter of right and by way of easement of necessity.

The defendant had also filed a counter-claim for a decree of permanent injunction so as to restrain the plaintiff from raising any sort of construction or putting any sort of obstruction. The plaintiff contested this counter-claim and filed a written statement.

Observation and Analysis:

The Court observed that when “A joint owner cannot prevent by injunction the usage of a portion of the joint property by another co-owner unless this amounts to wastage or destruction or injury to the other co-owners. Every co-owner has a right to use the joint property in a husband-like manner not inconsistent with similar rights of the co-owners.”

The plaintiff, in the opinion of the Court, failed to demonstrate that he had sole possession of the suit’s land. The counsel for the plaintiff argued that the plaintiff was in possession of the land under dispute by citing the jamabandi and the khasra. However, the Courts below found that the evidence of the plaintiff was rebutted by the defendant-respondents and even the Local Commissioner had submitted a report to which no objections were filed, the Court noted.

The plaintiff-appellant failed to establish his exclusive possession over the suit land, and there was no determination that any action taken by the defendants was harmful to the interests of the other co-owners in the joint land, so the Bench was unable to apply the reasoning of the Full Bench in Bhartu v. Ram Sarup, 1981 PLJ 204 to the facts of the present case.

Thus, without finding any illegality in the judgments passed by the trial court and the appellate court, the Court dismissed the Appeal.

[Tarsem Singh v. Major Singh, RSA-5381-2019 (O&M), decided on 25-07-2022]


*Judgments by: Justice Alka Sarin

Advocates who appeared in this case :

Mr. Rajinder Sharma, Advocate, Counsel for the Appellant.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Goutam Bhaduri and Deepak Kumar Tiwari JJ. entitled father-in-law to pay maintenance to widowed daughter-in-law from the estate of the deceased husband which is held under the hands of father-in-law. The maintenance was increased from Rs 2500 to Rs 4000.

The respondent- daughter in law (‘DIL’) was married to the son of the appellant-father-in-law (‘FIL’). After the death of the husband , she was almost deserted in the family and the bank passbook and ATM card, which belong to her husband were kept by the in-laws. It was further pleaded that at village Haretikala, Tahsil Jaijaipur ancestral property of 11.78 acres and at village Jaijaipur 3.97 acres of agricultural land are held by the appellant. In addition, three shops and houses situated in different places of Korba wherein the right of late husband of the respondent is also vested.

According to the respondent, she has no source of income to maintain herself, as such, an amount of Rs.7,000/- per month was claimed towards maintenance which was opposed by FIL contending that in order to treat the ailment of his son , a considerable amount was spent, as such, the appellant does not have any source of income and, therefore, he is unable to pay the maintenance. Thus, the Family Court, after evaluating the evidence by the order impugned, directed the appellant to pay an amount of Rs.2,500/- per month towards maintenance of the respondent. Assailing this, a present appeal was filed.

The Court noted that in order to ensure the maintenance to the daughter-in-law, Section 19 of the Hindu Adoptions and Maintenance Act, 1956 is to be perused.

Placing reliance on Dayali Sukhlal Sahu v. Anju Bai Santosh Sahu, 2010 (3) CGLJ 459 and Parwati v. Danpatra Singh, 2021 (1) CGLJ 328 wherein it was held that the daughter-in-law is required to specifically plead and prove by leading cogent, reliable and clinching evidence that all other sources of income as stated in sub-section (1) of Section 19 Hindu Adoptions and Maintenance Act, 1956 are not available to her, then only the subsequent provisions of subsection (2) of Section 19 Hindu Adoptions and Maintenance Act, 1956 can be pressed into.

The Court observed that as per the provisions enumerated under Section 19 of the Act, 1956, the right to claim maintenance by widowed daughter-in-law is conditional. The father-in-law having in possession of coparcenary property out of which widowed daughter-in-law has not obtained any share, therefore, the right to receive maintenance from the father-in-law would be limited to the share of coparcenary property held by the father-in-law in his hand in which the widowed daughter-in-law has not taken any share.

The preferential right when is considered under Section 19 (1) (a) would show that the widowed daughter-in-law would be entitled to claim maintenance firstly from the estate of her husband and thereafter, claim can be made from her father or mother. Though the word in Section ‘or‘ is used, which gives the right to a widow to claim from either of the people enumerated in Section, yet the Section is sub divided into part (a) & (b). So, the preferential precedents exist giving an option to widow. Thus, it is crystal clear that the estate of husband comes first to claim maintenance by widow. It is the well settled proposition of law that the manager of a joint Mitakshara family is under a legal obligation to maintain all male members of the family, their wives and their children, and on the death of one of the male members he is bound to maintain his widow and his children.

The Court in view of the facts and circumstances pointed out that when the estate of the husband is held in the hands of the father-in-law; the daughter-in-law cannot be forced to leave the estate of her husband and to follow the estate of her father or mother. Thus, the estate of husband can be preferred to claim over the father or mother of the daughter-in-law.

The Court enhanced the maintenance amount from Rs.2,500/- to Rs.4,000/- per month taking into the consolidated share in the property and estimated proposed income.

[Nand Kishore Lal v. Shrimati Chanchala Lal, 2022 SCC OnLine Chh 1280, decided on 04-07-2022]


Advocates who appeared in this case :

Mr. Sanjay Patel, Advocate, for the Appellant;

Mr. Sourabh Sahu, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

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

NCLAT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal, New Delhi (NCLAT): The Coram of Justice Ashok Bhushan (Chairperson) and Shreesha Merla (Technical Member), held that the implementation of the Jet Airways Resolution Plan will be subject to the outcome of appeals filed against the order of National Company Law Tribunal which approved the resolution plan for Jet Airways.

Mr Balbir Singh, ASG appearing for the applicant referred to the order of the Supreme Court dated 15-9-2021 in Civil Appeal No. 3290 of 2017 in the matter of Commissioner of Income Tax v. Jet Airways India Ltd., and Order dated 16-11-2021.

In view of the above-said orders passed by the Supreme Court, Tribunal permitted the applicant to intervene in the present appeal.

Present appeals were filed against the order dated 22-6-2021 passed by the Adjudicating Authority approving the Resolution Plan.

The effective date had been fixed as 28-5-2022 and the process of the implementation of the plan has begun.

Further, the appellant’s counsel expressed their apprehension that in the event their claim was allowed, and the plan was implemented, their claim may not be met by the Successful Resolution Applicant.

Tribunal fixed the appeals on 05th July, 2022 and made it clear that the implementation resolution plan shall abide by the result of the appeals filed.

Lastly, the Senior Advocate, Krishnendu Datta submitted that the Successful Resolution Applicant shall withhold the ‘BKC’ Property, which is a valuable property and till the next date, shall not take any steps for alienation of the said property.

Coram directed that the interim order Company Appeal (AT) Ins. No. 686 of 2021 shall continue. [Association of Aggrieved Workmen of Jet Airways (India) Ltd. v. Jet Airways (India) Ltd., 2022 SCC OnLine NCLAT 222, decided on 30-5-2022]


Advocates before the Tribunal:

For Appellant:

Mr. Siddharth Bhatnagar, Sr. Advocate with Mr. Aditya Sidhra and Mr. Swarnendu Chatterjee, Mr Yashwardhan Singh, Advocates.

For Respondents:

Mr. Arun Kathpalia, Sr. Advocate with Mr. Rohan Rajadhyaksha, Ms. Aditi Bhansali, Mr. Nishant Upadhyay, Mr. Madhur Arora, Mr. Dhiraj Kumar Totala, Ms. Trisha Sarkar and Ms. Tanya Chib, Advocates for R-1 & 3.

Ms Pooja Mahajan, Ms Mahima Singh, Advocates for SRA.

Mr. Raunak Dhillon, Ms. Isha Malik and Ms. Niharika Shukla, Advocates for R-2.

Mr. K. Datta. Sr. Advocate with Mr. Rajat Sinha, Ms. Pooja Mahajan, Ms. Mahima Singh and Ms. Aveena Shrama, Advocates for R-4.


Read more here:

NCLT | Whether Resolution Plan can be shared with Jet Airways employees or not? Verdict explains provisions revolving around confidentiality, purpose of code and more

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: Suraj Govindaraj, J., allowed the petition and quashed the compromise decree in the original suit filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings.

The facts of the case are such that a compromise petition was filed before Principal Senior Civil Judge at Hubballi in the Lok-Adalat proceedings by a person claiming to be the power of attorney holder of the petitioner and as such the petitioner’s interest in the suit schedule property therein was compromised without the knowledge of the petitioner and therefore a fraud was committed on the petitioner by resorting to an abuse of the process of the Court and filing of a compromise petition in the Lok-Adalat. Thus instant petition was filed under Articles 226 and 227 of the Constitution of India praying to quash the compromise decree and restore the original suit before Principal Senior Civil Judge at Huballi on merits.

Counsel for petitioner Mr Mahesh Wodeyar submitted that the petitioner not having executed any power of attorney in favour of respondent 1, the power of attorney claimed by respondent 1 is fabricated one and as such neither the agreement of sale could be executed by respondent 1 in favour of respondent 2 nor could a compromise be entered into by the respondent 1 with respondent 2 for the Lok-Adalat to record. Thus, the petition needs to be allowed and the compromise recorded by the Lok-Adalat be set aside.

Counsel for the respondent Mr Padmanabha Mahale submitted that respondent 1 is the power of attorney holder of the petitioner and respondent 1 has entered into a compromise with the knowledge and consent of the petitioner with respondent 2. The compromise having been filed before the Court and the Court having forwarded the matter to the Lok- Adalat the compromise is one which is filed before the Court and as such the present petition is not maintainable since the trial Court having taken the compromise on record, only a suit challenging the compromise is maintainable.

The Court after perusing all the material facts observed that the plaintiff in a suit cannot array a defendant to be represented by power of attorney showing the address of the said power of attorney without even showing the address of the defendant. It was also observed that the net result of the entire proceedings and procedure followed is that the plaintiff who was not aware of the said proceedings, a compromise decree has been passed against the petitioner who though arrayed as a party to the preceding was never served with the notice nor did the defendant contest the said the proceedings. There is a procedural irregularity inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise.

The Court relied on Akkubai v. Venkatrao, 2014 SCC OnLine Kar 10110  and deprecated the said practice of recording compromise before the Court and thereafter referring to Lok-Adalat, as it is not contemplated in the Legal Services Authorities Act, 1987 and such compromise if recorded before the Lok Adalat is required to be set aside.

The Court also issued general directions in matters relating to compromise before the Lok Adalat which are challenged by way of writ petitions

(i) When a compromise is filed before the Court in terms of the decision in Akkubai v. Shri Venkatrao, 2014 SCC OnLine Kar 10110  it is for the Court to record the compromise and not refer the matter to the Lok- Adalat.

(ii) It is only if there is no settlement arrived at before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to be referred to the Lok-Adalat and in the event of a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lok- Adalat.

(iii) When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be used by the Lok-Adalat.

(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.

(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.

(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter.

(vii) When recording a compromise being entered into by a power of attorney, the original of the power of attorney is required to be examined by the Court and the Lok-Adalat and necessary endorsement made in the order to that effect and the original power of attorney returned to the parties.

(viii) As far as possible the trial Court and or the Lok- Adalat to secure the presence of the party and obtain signature of such party rather than the power of attorney.

(ix) The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.

The Court allowed the petition and quashed the compromise decree dated 26-07-2014 in O.S. No.246/2014. [Renuka v. Ramanand, Writ Petition No. 103766 of 2018, decided on 31-03-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., reversed concurrent findings of Trial Court and Punjab and Haryana High Court by setting aside mandatory injunction granted against the Municipal Committee. The Bench held that merely being the highest bidder in auction will not entitle one of any right over the property unless there is an official communication indicating the sale has attained finality.

The Municipal Committee, Barwala had impugned the mandatory injunction granted to the plaintiff-respondent by the Trial Court and upheld by the High Court to execute a sale deed in respect of land measuring 55 kanals 5 marlas sought by the plaintiff.

The respondent-plaintiff had claimed title and possession over the disputed property on the basis of an open auction conducted by the Sub-Divisional Officer in 1999 and consequently, had obtained mandatory injunction against the Municipal Committee over said property. The plaintiff claimed that being the highest bidder and having deposited the total sale consideration of Rs.15,76,150 with the Municipal Committee, he was a bonafide purchaser and was in possession as owner of the suit land.

However, the Municipal Committee disputed the possession of the plaintiff as illegal contending that the Committee could not execute the sale deed without proper sanction of the competent authority i.e., Government of Haryana. The committee argued that the auction was not approved by the State Government and till such time the auction is confirmed, mere fact that the plaintiff was the highest bidder would not confer any equitable and legal right to him. It is only after the confirmation of sale and the letter accepting the bid is issued, the plaintiff could claim any enforceable right.

The Committee further submitted that the approval of sale by public auction itself did not amount to confirmation of auction; therefore, in the absence of confirmation of sale by the State Government, the plaintiff would not get any right over the property.

Whether merely being the highest bidder would confer any equitable and legal right over the property?

The Bench observed that the Haryana Municipalities Management of Municipal Properties and State Properties Rules, 1976 contemplates two acts to be completed by the Deputy Commissioner for alienating immovable property owned by Municipal Committee, one of which is approval of conduct of sale which was granted on 25-10-1995. However, the other important requirement is that no sale by auction shall be valid until it has been confirmed by the Deputy Commissioner.

The Bench noted that the communication dated 10-1-2007 relied on by plaintiff to contend that the sale was approved by the Deputy Commissioner was not a communication by the Deputy Commissioner to the Municipality or to the plaintiff that the sale stood confirmed; rather it was an inter-departmental communication with no endorsement of the copy of the said communication to the plaintiff. Therefore, the Bench opined that no concluded contract ever came into force and in the absence of any approval granted, no right would accrue.

Relying on the decision in State of Punjab v. Mehar Din, 2022 SCC OnLine SC 250, the Bench observed that State or authority which can be held to be State within the meaning of Article 12 of the Constitution is not bound to accept the highest tender of bid. Similarly, reliance was also palced by the Bench on the decision of Constitution Bench in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, to hold that merely writing something on the file does not amount to an order.

Evidence Act, 1872 and Presumption of Correctness

Noticeably, in pursuance of the powers conferred on the State Government, a message was conveyed on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. However, the Trial Court had discarded such communication for the reason that the communication had not been proved as per the provisions of the Evidence Act, 1872.

Considering that the communication had been produced by the Municipal Committee when the Committee examined Mahavir Singh, Secretary as DW-1 and Sandeep Kumar, Building Inspector as DW-2, the Bench opined that such communication had come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts had been regularly performed. The Bench added,

“The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record.”

Findings and Conclusion

After factually analyzing the instant case, the Bench reached to the following findings:

  1. The letter dated 10-01-2007, seeking approval of the State Government by the Deputy Commissioner was not the approval granted by him which could be enforced by the plaintiff in the Court of law.
  2. The suit was not maintainable as there was no vested right with the plaintiff to claim such a decree merely on the basis of a participation in the public auction.
  3. Even if the plaintiff had any right on the basis of an auction, he could at best sue for specific performance of the so-called agreement.
  4. Even the suit for specific performance was barred by limitation as such suit could be filed within three years from the date of auction in terms of Article 54 of the Schedule to the Limitation Act, 1963, however the plaintiff had reached the Court beyond the period of limitation.

In view of the above, the Bench concluded that the plaintiff had been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder. Consequently, the appeal was allowed, the impugned judgments were set aside and the plaintiff’s possession of the disputed property was found to be illegal.

The Municipality was granted liberty to take possession of land and the amount of Rs.15,76,150 deposited by the plaintiff was directed to be forfeited towards the damages for the illegal occupation of the land for more than 20 years since the date of auction in contravention of law.

[Municipal Committee, Hisar v. Jai Narayan & Co., 2022 SCC OnLine SC 376, decided on 29-03-2022]


*Judgment by: Justice Hemant Gupta


Kamini Sharma, Editorial Assistant has put this report together 

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) expressed that, customer avails of Locker hiring facility is so that they may rest assured that their assets are being properly taken care of, but in the present matter, OP Bank failed to take care of the assets.

Instant appeals were filed against the order passed by the State Consumer Disputes Redressal Commission, Jharkhand whereby the complaints filed were partly allowed and the State Bank of India was directed to pay a lump sum compensation of Rs 30,00,000.

In the present matter, the complainants had Saving Bank Account and several High Value Fixed Deposit Accounts for nearly last four decades with the State Bank of India (OP Bank). They were also allotted Safe Deposit Locker by the OP Bank.

During the intervening night, a theft took place in the OP Bank as a result of which various items including jewellery and postal deposit instruments which were kept in the Safe Deposit Locker by the complainants were taken away by the miscreants/thieves.

The OP Bank did not intimate about the above-stated and on reaching the bank they got to know that their Safe Deposit Locker had been broken open and burgled. Further, the complainants met the Officer of the OP Bank, who confirmed the incident and asked them to furnish a list of their valuables.

Complainants alleged deficiency in service on the part of the OP Bank, the complainants filed a consumer complaint before the State Commission seeking compensation.

On being aggrieved with the impugned order passed by the State Commission, while the OP-Bank had filed appeals for setting aside the order by the State Commission, complainants preferred the cross-appeals for enhancement of the compensation awarded by the State Commission.

Analysis and Decision


Commission expressed that the purpose for which the customer avails Locker hiring facility is so that they may rest assured that their assets are being property taken care of, but in the present matter, OP Bank failed to take care of the assets/valuable articles of the Complainants which were lying in the Lockers provided by the OP Bank.

Further, the Coram added that although the stolen goods were seized by the Police and the complainants could identify only small quantity of their jewellery because most of the jewellery was in distorted shape due to rough handling by the burglars and a substantial quantity of jewellery was melted and transformed into gold biscuits, yet the OP Bank cannot be absolved from the deficiency in service on their part.

Therefore, no interference with the well-reasoned order was required. [SBI v. Gopal Prasad Mahanty, 2022 SCC OnLine NCDRC 48, decided on 7-4-2022]


Advocates before the Commission:

For the State Bank of India: Mr. Jitendra Kumar, Advocate

For the Complainants: Mr. Gopal Prasad Mahanty, in-person

Mr. Shashi Bhushan Kr., in person

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., decided on the following questions for consideration:

  • Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
  • Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
  • Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

Factual Background

A suit for partition and separate possession of the suit property was filed by respondents against the predecessor of the appellants by the name Mr Gumansing, claiming that they had 1 / 2 share of the suit property.

It was stated that the respondents were the wife and children of Harising who contested the suit by his written statement and admitted that the suit property was the ancestral property.

Further, he had put up a plea of the previous partition about 70 years back, however, admitted that the suit property remained joint and he claimed to be the exclusive owner of the suit property and also claimed to be in possession.

Trial Court concluded that the suit property was the ancestral and joint family property but denied giving any share on the ground of non-joinder of all coparceners. Though the District Court quashed and set aside the judgment of the trial Court and decreed the suit partly.

Analysis and Decision

High Court noted that as per the provisions of the Hindu Succession Act, the suit property was simultaneously inherited by Shivam and Totaram who were real brothers and each one of them would be entitled to half share.

In a suit for partition, the heads of all the branches are the necessary parties.

Further, even if all the sons of Shivaram and Totaram were not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided into two halves only.

Bench found that the District Court had not directed a further division amongst the coparceners inter se from each of the branches.

Hence, High Court answered the substantial questions in favour of the respondents and the Second Appeal, therefore must fail.

There was absolutely no evidence to show that the respondents were completely excluded from receiving any yield from the suit property and the entire usufructs were being enjoyed by the appellant to their exclusion.

In view of the above, civil application was disposed of. [Late Gumansing Shivram Patil v. Abhiman Gumansing Patil, 2022 SCC OnLine Bom 866, decided on 22-4-2022]


Advocates before the Court:

Advocate for Appellants: Mr. S.B. Yawalkar h/f. Mr. B.R. Yawalkar

Advocate for Respondents1 to 5: Mr. S.V. Dixit

Chhattisgarh High Court
Case BriefsHigh Courts

 Chhattisgarh High Court: Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

The appellants/defendants are all residents of Bilaspur. The suit land already described by this Court was the self acquired property of mother of defendants and plaintiff. Her name was recorded as title holder of the suit land. It was pleaded that plaintiff has taken care of his mother till his lifetime, all the last rituals have been performed by him and due to care taken by him she bequeathed a Will in favour of the plaintiff on 28-10-2010 and since then plaintiff was in possession of the suit land. After her death the plaintiff moved an application for mutation of the suit land in his name being successor per Will dated 28-10-2010 executed by her. The name of plaintiff has been mutated in the revenue record as the land owner on 10-09-2013. The defendants 1 to 3 had preferred an appeal wherein they had raised an objection that the plaintiff was not only successor of her and they were also the successor, as such their names should also have  been recorded in the revenue record.

The illegal interference of the appellants/defendants in the title and ownership of the suit land which is owned by the plaintiff necessitated the plaintiff to file present suit for declaration and for grant of permanent injunction.

Defendants filed their written statement denying the averments made in the plaint contending that the Will dated 28-10-2010 was forged one, as such, on the basis of forged document, order of mutation was illegal and against the provisions of law, therefore, order dated 10-09-2013 was not binding upon them.

From the factual matrix the Court identified two main issues:

(i) Whether the will has been proved as per the provisions of section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act?

(ii) Whether the defendants are entitled to get equal share of the suit land being coparcener as per Hindu Succession (Amendment) Act, 2005?

From analysis of the evidence and considering the evidence they have nowhere stated that will has been written as per the direction of the testatrix and also considering the fact that the witnesses have nowhere stated in their evidence that the testatrix has put her signature on the will in their presence. therefore, doubtful circumstances establish with regard to existence of will. Also, application which was filed before Revenue Court for mutation wherein the defendants have not made party despite aware of the facts that sisters are still surviving, it certainly creates doubt over genuineness of the will.

For deciding issue 1 the  Court considered the judgment of the Supreme Court in Murthy v. C. Saradambal, (2022) 3 SCC 209 and stated that it is crystal clear, that the validity of Will was not proved in accordance with the provisions of the law and suspicious circumstances are available on record which have not been cleared by the plaintiff by placing material on record, therefore, judgment and decree so far as holding that the plaintiff was the owner of the suit was set aside.

For Issue 2 the Court extracted provisions of section 6 of Hindu Succession Act, 1956 as amended in 2005 and explained that since the plaintiff and defendants are coparcener of the joint Hindu family property, as per Hindu Succession Act as amended in 2005, the daughters were also entitled for getting equal share in the property inherited by their parents. The suit land was inherited by deceased mother, as such defendants and plaintiff were entitled to get equal share in the property as per Section 6 of the Hindu Succession Act as amended in 2005. The Court relied on the judgment of the Supreme Court in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 and decided that plaintiff and defendants were entitled to get ¼ shares in the suit property.

Counsel for the appellants/defendants had also filed application under Order 41 Rule 27 Read with Section 151 of the CPC for taking additional document on record by stating that during pendency of the appeal, the appellants/ defendants have filed an application under Order 1 Rule 10(2) CPC by which the respondent No.1 has sold total 10 decimal of the land in favour of respondent/plaintiff 3 , therefore, he was arrayed as party to the case. While allowing this application the Court held that sale of land shall also be subject to the decision of this appeal and the land already sold to respondent 3, if it is part of suit land then .040 hectare land will be adjusted/ reduced from the share of plaintiff.

Counter claim and appeal filed by the defendants was allowed and it was held that defendant 1-3 were entitled to get equal share in the property as per Hindu Succession Act, as amended in 2005.[Sonia Bai v. Dashrath Sahu, 2022 SCC OnLine Chh 468, decided on 28-02-2022]


For the Applicants : Mr Aman Sharma

For the Respondent 1 : Mr Dhirendra Mishra

For the State : Mr Sameer Sharma, Dy. GA

For the Respondent 4. : Mr Dashrath Prajapati


Suchita Shukla, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters.

Plaintiff had sought for relief of partition and for allotment of 1/5th share in the suit property and also sought for declaration of the sale deed executed by the 1st defendant in favour of the 5th defendant as null and void.

Plaintiff’s case was that the suit property formed part of a larger extent of property which was ancestral in nature. It was claimed that 1st defendant father and defendants 2 to 4 who were the sisters of the plaintiff were each entitled 1/5th share in the suit property.

The grievance of the plaintiff was that the 1st defendant went ahead and sold an extent of 36 cents in favour of the 5th defendant through a sale deed and according to the plaintiff, this sale deed was null and void and not binding on the other sharers. Further, the 1stdefendnat was not coming forward to allot the shares to the other legal heirs and hence, the suit came to be filed seeking for the reliefs.

1st defendant submitted that he was the absolute owner of the property during his life time and plaintiff cannot claim any share in the property.

Analysis, Law and Decision

High Court noted that the source of the property was admitted to be ancestral.

Main Issue

Nature of inheritance made by the three sons of Thalaivirichan Reddy.

The Bench expressed that, even after the Joint Family properties are partitioned and allotted to each sharer, the same can be held to be the individual property of the sharer only till a son and/or daughter are born. Once a son and/or daughter is born, they will get a right and share over the property by birth. As rightly held in the above judgment, the 1956 Act has not put to an end the co-parcenary rights and infact, it continues to be reiterated after the coming into force of the 2005 amendment Act.

Further, the Court expressed that,

Even if there was a family arrangement between the three sons of Kathavaraya Reddy and by virtue of the same, the 1st defendant had allotted 1.07 acres, the moment the plaintiff and defendants 2 to 4 were born, they will also be entitled for a share in the property.

In High Court’s opinion, lower Courts had lost the sight of law governing the property and had erroneously concluded that the property in the hands of 1st defendant was his exclusive property and that daughters will not be entitled to claim a share in the property.

It is nobody’s case that the 1st defendant had sold the property and had utilized the money for illegal purposes. Therefore, the assumption should be that it was utilized by the 1st defendant for the family.

“…this Court must also safeguard the rights of the plaintiff and defendants 2 to 4 to the extent possible and ensure that they get a reasonable share in the suit property. This is the only way to balance the rights of the daughters and the father in the suit property.”

Court added that,

The manner in which the property is going to be distributed by balancing the equities can be decided by the Trial Court at the time of passing the final decree.

Hence, the second appeal was partly allowed granting 1/4th share to the plaintiff and defendants 2 to 4 in the property that remained after the extent that had already been sold in favor of 5th respondent. [S. Sampoomam v. C.K. Shanmugam, 2022 SCC OnLine Mad 1594, decided on 5-4-2022]


Advocates before the Court:

For Appellant: Mr.A.Gouthaman

For Respondents: Mr.R.Rajarajan for R1 to R5

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

It was stated that one Arvindkumar Narayandas Khandelwal had gifted property by registered gift-deed in favour of the complainant. On the date of execution of the said deed, the complainant was three years old and therefore, the gift deed was executed in favour of the complainant through a natural guardian – accused 1.

The Complainant was the absolute owner and in possession of the land given to him by the above-said gift deed. In February 2020 the complainant came to know that the accused 1 had sold out a plot to accused 4 to 6.

It was alleged that after getting knowledge of the said transaction, on enquiry by the complainant, it was revealed that the accused 1 permitted Narayandas Hiralal to seek permission for conversion of gifted property and started using the said property for his personal use without obtaining permission from the Court.

Further, accused 1 transferred the minor’s property to the society established by him without obtaining permission from the competent Court.

It was alleged that accused 1 showed that the complainant had purchased the property from the housing society with the intention to cheat the complainant. Hence, accused 1 committed a criminal breach of the complainant’s trust.

Issues for Consideration:

Whether the natural guardian having executed the sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Sections 420, 467, 468, 471 of the Penal Code, 1860 that too, after more than 35 years from the date of attaining majority by the minor and after more than 48 years from the date of execution of sale-deed?

Analysis, Law and Decision

High Court referred to the decision of the Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University, (2001) 6 SCC 534, wherein the distinction between void and voidable was explained.

Well Settled Principle of Law

Transfer of immovable property by the natural guardian of a Hindu minor far from being void or being a nullity is, in fact, one which fully binds the other party unless set aside by a competent Court. The minor can always enjoy the benefit thereof and enforce the contract after ratifying or accepting the same. Such a transaction is perfectly valid until duly avoided by the minor before a competent Court.

Bench expressed that, the transfer is by the minor as the principal through the agency of his guardian.

Coming to the facts of the present matter, an FIR was registered against the applicants who include the father, mother, sister and purchasers.

To attract Section 420 IPC, there should be deception or fraudulent inducement of a person to deliver property. As a consequence of such cheating, the accused should have dishonestly induced the person who is deceived to deliver such property to any person or to have made, altered or destroyed the whole or any part of a valuable security or anything which is signed or sealed and being capable of converted into a valuable security.

Further, to hold a person guilty of cheating under Section 415 IPC, it is necessary to show that he had the fraudulent or dishonest intention at the time of making the promise with an intention to retain the property and the inducement must be intentional.

As per the facts of the case, it was not the case of non-applicant 2 (complainant) that the applicants by fraudulent and dishonest inducement, deceived him either by making a false or misleading representation to deliver any property or to give consent to retention thereof or intentionally induced him to do or omit to do anything, which he would not do or omits, if he were not so deceived.

As the position of law on the alienation of the property of minor stands, the sale deed in favour of housing society was de jure executed by the minor (non-applicant 2) through natural guardian applicant 1.

High Court opined that it could not be transpired that by execution of sale deed and thereafter, repurchasing part in the form of individual plots by applicants 1 to 3 it cannot be said that the applicants 1 to 3 had altered or tampered with the documents nor it can be said that applicants had obtained documents by practicing deception.

No false documents were executed; hence no question of forgery arose under Section 468 IPC.

Further, the High Court referred to the decision of the Supreme Court in Mohammed Ibrahim v. State of Bihar, (2009) 8 SCC 75.

In Murugan v. Kesava Gounder (Dead), (2019) 20 SCC 633 summarised law as regards alienation of the immovable property by natural guardian holding that, disposal of immovable property of minor by his natural guardian (father) by registered sale-deeds in contradistinction of Section 8(2) are voidable under Section 8(3).

Bench found that the FIR was filed against applicants 1, 2 and 3 in order to cause pressure on them and to cause harassment.

“Criminal proceedings cannot be allowed to be used for settling, coercing or causing harassment to the accused persons.” 

While concluding the matter, Court quashed and set aside the FIR registered with non-applicant 1 for the offences punishable under Sections 420, 467, 468, 471 and Section 34 of the Penal Code, 1860. [Vasantkumar v. State of Maharashtra, 2022 SCC OnLine Bom 712, decided on 28-3-2022]


Advocates before the Court:

In Cr.APL No.91/2021.

Shri S. V. Manohar, Senior Advocate assisted by Shri M.G. Sarda, Advocate for Applicants.

Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.

Shri Avinash Gupta, Senior Advocate Assisted by Shri Aakash Gupta, Advocate for Non applicant No.2.

In Cr.APL No.312/2021.

Shri H. M. Mohata and Shri S. P. Bhave, Advocates for applicants Shri S. M. Ghodeswar, A.P.P. for Non-applicant/State.

Shri S. P. Bhandarkar, Advocate for Non-applicant No.2.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

The suit properties which included 4 agricultural lands and two-house properties, were the properties of Dajiba.

The four daughters of Dajiba had filed the suit against their stepmother for partition and separate possession of their share in the suit properties. The stepmother having agreed to sell one of the suit properties being Survey No. 42/B to respondent 2, was arrayed as defendant 2.

Trial Court decreed the suit awarding a joint 4/5th share to the daughters in all the suit properties.

The above-said judgment was challenged by the step mother and the purchaser and further, the appeal was partly allowed. Except for Survey No. 42/B, the share allotted to the daughters in all the suit properties was confirmed.

Further, the stepmother had agreed to sell it to the purchaser to meet the legal necessity of the family.

Aggrieved with the District Court’s decision, one of the daughters who was plaintiff 4 preferred the second appeal arraying her stepmother and the purchaser as also the remaining three sisters as respondents.

Analysis, Law and Decision

High Court noted that there was no dispute with regard to the suit properties and after the demise of Dajiba, his widow i.e., defendant 1 and daughters, who were the plaintiffs simultaneously succeeded to his estate in view of Section 8 of the Hindu Succession Act.

With regard to Section 19 of the Hindu Succession Act, all the above-stated heirs of Dajiba would inherit as tenants in common and not as joint tenants.

The very theory of existence of a karta and legal necessity presupposes that the sharers are joint, which is not the case in the matter in hand.

Bench stated that by virtue of the above-stated mode of succession by the widow and four daughters of Dajiba receiving the suit properties as heirs, they take their individual shares as tenants in common.

Since the suit properties were not joint, there was no question of the stepmother acting as a manager or karta of the family. Therefore, she had no right to deal with the suit properties even for legal necessity.

High Court relied upon the decision of Supreme Court in Commissioner of Income-Tax, Madhya Pradesh, Nagpur and Bhandara Nagpur v. Seth Govindram Sugar Mills, AIR 1966 SC 24.

Bench added that it has been held that,

under Hindu Law coparcenership is a necessary qualification for becoming a manager of joint Hindu family and since a widow cannot be a coparcener she is not legally entitled to become a manager. Conspicuously, this was a position even prior to the coming into force of the Hindu Succession Act. By virtue of Section 19 it has been explicitly made clear that if two and more heirs succeed together to the property and in estate, they take the property as tenants in common and not as a joint tenants.

With regard to the present matter, the Bench held that, once it was established that the step mother was not entitled to act as a manager or karta of the family, there was no question of her having any power to deal with suit properties to the detriment of the stepdaughters.

Hence, the second appeal was allowed. [Kamalabai v. Darubai, 2022 SCC OnLine Bom 686, decide don 31-3-2022]


Advocates before the Court:

Mr. D.R. Shelke, Advocate for the appellant

Mr. P.G. Godhamgaonkar h/f. Mr. M.D. Godhamgaonkar, Advocate for respondent nos.1 and 2

Mrs. S.D. Shelke, Advocate for respondent nos.3a, 4 and 5

Case BriefsSupreme Court

Supreme Court: In a case where the Development Plan was finalized in the year 2002, but the same was never implemented nor any action was taken for acquisition of the land under the Land Acquisition Act, 1894, the bench of Hemant Gupta* and V Ramasubramanian, JJ has held that the Bombay High Court’s direction to acquire land within a period of one year is in contravention of the time line fixed under the Maharashtra Regional and Town Planning Act, 1966.

In the present case, in 2016 i.e. after the expiry of the ten years’ time line, the appellants issued notice under Section 127 of the Act so as to purchase the reserved land within one year of the date of the notice. The Bombay High Court held that the reservation of land in the Development Plan stands lapsed as no declaration under Section 126 of the Maharashtra Regional and Town Planning Act, 1966 was published. However, the Planning Authority was given one year time to acquire the land once reserved.

The Supreme Court, however, disagreed with the High Court’s view and held that once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land. The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired.

“The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period.”

The Court observed that the Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra in 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State. Hence,

“The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain.”

Consequently, the direction to acquire the land within one year was set aside by the Court.

[Laxmikant v. State of Maharashtra, 2022 SCC OnLine SC 349, decided on 23.03.2022]


*Judgment by: Justice Hemant Gupta

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

Appellants preferred the present appeal against the order granting probate of Will executed by the testator in favour of his daughter (applicant) with respect to a land.

Applicant’s case was that the suit land was the self-acquired property of the testator who executed the Will.

It was asserted that the Will was executed out of free will and in perfect health.

Though the objector’s (son) case was that the testator never executed any Will and the said Will was forged and fabricated.

Analysis, Law and Decision

High Court expressed that a probate court is not competent to determine the title of schedule property.

Additionally, the Court observed that,

The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application.

In the Supreme Court decision of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357, it was held that,

“the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court”. 

Further, the Bench added that,

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir.

In view of the facts and circumstances of the case, Court affirmed the lower Court’s order. [Neelam Singh v. Sudha Sinha, Misc. Appeal No. 123 of 2012, decided on 10-3-2022]


Advocates before the Court:

For the Appellants: Mr. Anil Kumar Sinha, Advocates

For the Respondents: M/s A.K. Das & Swati Shalini, Advocates

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats.

As per the petition, Fazal Khan was living in a vegetative state for the last decade and he not only had dementia but has had multiple strokes also. The crux of the petition was the appointment of Fazal’s wife, Sonia as the 1st petitioner, as the guardian of Fazal’s personal and property.

It was noted from the medical report of Fazal that he was totally dependent on his caregivers.

In the present case, the Court was concerned with a Bank Account wherein Fazal was the first holder and Sonia, i.e. his wife the joint holder. The second asset was a property which was a residential flat.

An intervention application as pointed by the Court, which was filed by Asif Fazal Khan, the “de facto” guardian of Fazal for many years and there was absolutely nothing in the said application to show that.

Further, Asif submitted that although his parents were alive, there are two flats and both are what he describes as “a shared household” therefore he, the son, had some sort of enforceable legal right or entitlement to either or both of these flats.

High Court expressed that,

“In any conceptualization of succession law for any community or faith, Asif can have no right, title or interest whatsoever in either of these flats — one in his father’s name and other in his mother’s name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable.”

Therefore, the intervention application filed by the son was rejected.

High Court permitted the wife of Fazal Khan to operate the Bank account and added that she may draw amounts in the said account to meet all and any of Fazal’s expenses, though she can’t use that money for her personal expenses nor she can transfer the said amount to her personal account and once a year, the wife is required to file a statement of account.

The wife proposed to sell the flats so that the proceeds could be used to look after Fazal, hence the Court permitted the same and directed that without prior leave to this Court she can execute an MoU or an agreement for sale.

In view of the above -said the petition is kept pending. [Sonia Fazal Khan v. Union of India, 2022 SCC OnLine Bom 627, decided on 16-3-2022]


Advocates before the Court:

Mr Nikhil Wadikar, i/b Ganesh Dhonde, for the Petitioner.
Mr Maneesh Trivedi, i/b LR & Associates, for Intervenor/Applicant

in IA/2411/2021.
Mr Adavit Sethna, i/b Anusha P Amin & Tanay M Mandot, for

Respondent 1-UOI.
Mrs Uma Palsuledesai, AGP, for State.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta* and V. Ramasubramanian, JJ., held that a person who misleads the Authority in obtaining allotment of a plot is not entitled to any relief.

While adjudicating a case where the plaintiff had filed a false affidavit to obtain a plot, the Bench rejected the benefit of equity to the plaintiff holding that,

“…affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath.”

Factual Matrix

The plaintiff-respondent was allotted a residential plot in Sector- 30, Noida as a member of the Defence Services Cooperative Housing Society; however, prior to the allotment of the said plot, another plot in Sector- 15A, Noida was already allotted to wife of the plaintiff. Consequently, the plaintiff was served with a notice that the Sector 30 plot had been obtained by him by submitting a false affidavit as Sector 15A plot was already allotted to his wife.

The grievance of the plaintiff was that since the Sector 15A plot had been sold after obtaining permission from the appellant, therefore, the Sector 30 plot was the only plot in his possession. With the said claim, the plaintiff filed a suit for declaration, restraining the defendant from re-allocating the Sector 30 plot and from dispossessing the plaintiff from the same. After considering the reply, and the factum that the plaintiff intentionally concealed information of allotment and filed a false affidavit for the Sector 30 plot, the authority concerned cancelled the allotment of Sector 30 plot.

Concurrent Findings of the Courts Below

The Trial Court held that the lease executed in favour of the plaintiff could not be determined merely by passing the subject order in terms of Section 111 (g) of the Transfer of Property Act, 1887 as no notice for determination of lease under the said section had been issued. Therefore, all rights in the lease would survive. The findings of the Trial Court were concurrently upheld by the first Appellate Court and the High Court. The High Court further held that plaintiff and his wife had no ulterior motive to perpetrate fraud on the appellants as there was no willful or dishonest intention on the part of the plaintiff and his wife.

Submissions of the Plaintiff

The plaintiff submitted that the plot at Sector 15A was applied for because there was an uncertainty on account of litigation between the society of which he was a member with the appellant authority. It was pleaded that since the plaintiff was interested in Sector 30 plot as member of the Society, therefore the wife of the plaintiff had transferred the Sector 15A plot after obtaining permission from the appellant.

Findings and Conclusion

Contrary to the concurrent findings of the Courts below, the Bench observed the following faults on the part of the plaintiff:

  • Though the wife of the plaintiff was allotted Sector 15A plot on 10-03-1981, she had sworn an affidavit on 04-03-1983 that neither she nor her spouse owned any other plot in Noida.
  • The relevant extract from such terms and conditions of the allotment clearly show that a person himself owning, or in case of his spouse or dependent children owning a plot within the Municipal Corporation of Delhi or New Delhi or Noida complex, will not be eligible for allotment of a plot in Noida.
  • The affidavit of the wife of the plaintiff was false as the plot measuring 450 sq. yards stood allotted to the plaintiff on 06-10-1981. Therefore, on the date the wife of the plaintiff had sworn the affidavit, the Sector 30 plot was already allotted to the plaintiff.
  • The argument that plot might have been allotted but the possession was not with the wife of the plaintiff was incorrect as the affidavit was to the effect that she had not been allotted any plot either in her name or in the name of her husband.
  • The plaintiff had sworn an affidavit, enclosed on letter dated 01-12-1988 that he, his spouse and dependent children do not own in full or in part on leasehold or freehold basis any residential plot.

Rejecting the argument of the plaintiff that as per the decision in ITC Ltd. v. State of U.P., (2011) 7 SCC 493, and Section 14 of U.P. Industrial Development Act, 1976, the Chief Executive Officer alone could cancel the lease, the Bench held that the determination of lease by the Chief Executive Officer would arise if in case there was any violation of the terms of lease. The Bench stated,

“If the condition precedent for grant of lease itself was fraudulent, the cancellation of lease was not required to be preceeded by permission of the Chief Executive Officer.”

Further, the Bench noted that the Chief Executive Officer had granted permission on 13-09-1998, though the cancellation order was passed on 18-10-1996. Therefore, the Bench held that it was a case of irregularity at best which stood removed with the permission of the Chief Executive Officer. Emphasising on the terms and conditions of allotment conveyed to the plaintiff on 01-12-1988 that if allotment is obtained by any misrepresentation or misstatement or fraud, the lease may be cancelled and the possession of the plot and the building thereon may be taken by the Authority, the Bench held that cancellation of allotment of plot obtained after filing false affidavit was a legitimate ground of cancellation of lease.

In the light of above, the Bench concluded that since the second plot allotted to the plaintiff had been allotted against the express terms of allotment, therefore, there was neither equity nor any law in favor of the plaintiff. Consequently, the appeal was allowed and the judgment and decree of the courts below were set aside.

[New Okhla Industrial Development Authority v. Ravindra Kumar Singhvi, 2022 SCC OnLine SC 186, decided on 15-02-2022]


*Judgment by: Justice Hemant Gupta


Appearance by:

For the Plaintiff: Senior Advocate P.S. Patwalia

For the Appellant:   Advocate Binay Kumar Das


Kamini Sharma, Editorial Assistant has put this report together 


Experts CornerSanjay Vashishtha

The recent invocation of Magnitsky law in the United States made headlines across India. A United States law firm, primarily known for their human rights activism and practice in the realm of international criminal law filed a formal submission to the Government of United States of America seeking targeted sanctions against Uttar Pradesh Chief Minister, for his alleged role in extra-judicial killings allegedly committed by the State’s police forces between 2017 and 2021. The submission, filed on 9-2-2022, with the Department of State and the US Department of the Treasury, also recommends sanctions against Om Prakash Singh, the recently retired Director General of the Police of U.P., and Sanjeev Tyagi, Superintendent of the Police of the district of Kanpur.[1]

 

In December 2021, the US Government also sanctioned Bangladesh’s elite police unit[2], the Rapid Action Battalion, along with seven former and current police and army officials which included the current head of the country’s police force, for their role in extra-judicial killings.[3]

 

What is Magnitsky law?

Sergei Magnitsky Act was passed in 2012 in US named after a Russian Accountant, Sergei Magnitsky who in 2009, was tortured, denied medical attention and was found dead in Moscow jail cell.[4] He was targeted by the Russian authorities for exposing a giant tax fraud scheme.[5] The law passed by the US imposed sanctions against such Russian officials who are believed to be responsible for human rights violations.[6]

 

Russia has published its own blacklist of Americans banned from entering the country in retaliation for Washington’s “Magnitsky list.”[7] The Russian Government further banned American adoption of Russian children.[8]

 

Four years after the adoption of the original Act, Congress enacted a new “Global Magnitsky Human Rights Accountability Act” (2016). This built upon and expanded the original 2012 Act (which was focussed solely on those alleged to have been involved in the death of Sergei Magnitsky) by authorising the US President to impose sanctions on any individual or entity responsible for committing human rights violations, or acts of significant corruption, anywhere in the world.

 

On 20-12-2017, the US President issued Executive Order 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse and Corruption.”[9] The order declares a “national emergency” with respect to “serious human rights” abuses and a broad range of corrupt acts that threaten “the stability of international political and economic systems” and “constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States”.[10]

 

EO 13818 in substantial part implements the Global Magnitsky Human Rights Accountability Act [Global Magnitsky Act (GMA)] a 2016 law that authorises the President to freeze certain property and restrict the entry into the United States of “foreign persons” that the President determines, “based on credible evidence”, are responsible for certain corrupt acts and human rights abuses committed wholly or substantially outside of the United States (the “Global Magnitsky Sanctions”).[11]

 

As the above description indicates, the Sergei Magnitsky Act, 2012 targets persons and places tied to specific events that occurred in one country.[12] Moreover, the Sergei Magnitsky Act can be read to have been adopted or operate as an alternative or last recourse for justice and accountability, following Congress findings that there was a denial of “any justice or legal remedies” to Mr Magnitsky by “all State bodies of the Russian Federation” and “impunity since his death of State officials”.[13]

 

Scope of the Act

 

The Global Magnitsky Human Rights Accountability Act, 2016 authorises the President to impose economic sanctions and block or revoke visas to restrict the entry of certain “foreign persons” identified as engaging in human rights abuse (such as extra-judicial killings, torture, or other gross violations of internationally recognised human rights).[14] The Act also authorises sanction against government officials or senior associates of government officials who are complicit in “acts of significant corruption”. Such sanctions can also take the form of freezing of assets for funds held in US banks.[15]

 

In order to ensure global accountability and protection of human rights, the Act enables the US executive branch to apply targeted sanctions on any individual involved in human rights violation, from senior officials to low-level officers and non-government associates.

 

When a person is sanctioned, any property owned by them in the United States or in the possession or control of US persons is “blocked and must be reported to” the Treasury’s Office of Foreign Assets Control (OFAC). It also prevents any person or entity in the United States from undertaking any financial transactions with these men. Sanctions could also involve a ban on travel to the US.

 

The Act authorises the President to terminate the application of sanctions if the President determines that the designee did not engage in the activity for which sanctions were imposed; has been prosecuted for the offence; or has changed his or her behaviour, “paid an appropriate consequence”, and is committed to not engaging in future sanctionable activity. The President may also terminate the imposition of sanctions if he finds it in the US national security interests to do so.[16]

 

In contrast to the Magnitsky Law of 2012, the Global Magnitsky Act contains no analogous congressional findings, nor does it expressly state or imply that it is a last or alternative resort where adequate legal processes to adjudicate corruption or human rights abuses are unavailable in foreign countries where relevant events took place or parties are located, or before foreign tribunals to which relevant States have submitted to jurisdiction. Instead, the Global Magnitsky Act’s default position is the applicability of US sanctions (supported by “credible evidence”) without the requirement of a jurisdictional nexus with the United States.[17] Accordingly, the Global Magnitsky Act asserts US universal jurisdiction over the corrupt acts and human rights abuses it targets.

 

Executive Order 13818

 

The year after its enactment, pursuant to the 2016 GMA, President Donald Trump issued Executive Order 13818, which declared that “the prevalence and severity of human rights abuse and corruption that have their source, in whole or in substantial part, outside the United States […] threaten the stability of international political and economic systems”. The order continued:

“Human rights abuse and corruption undermine the values that form an essential foundation of stable, secure, and functioning societies; have devastating impacts on individuals; weaken democratic institutions; degrade the rule of law; perpetuate violent conflicts; facilitate the activities of dangerous persons; and undermine economic markets. The United States seeks to impose tangible and significant consequences on those who commit serious human rights abuse or engage in corruption, as well as to protect the financial system of the United States from abuse by these same persons.

I therefore determine that serious human rights abuse and corruption around the world constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and I hereby declare a national emergency to deal with that threat.”

 

President Trump therefore authorised the Treasury Secretary to impose sanctions against, inter alia, any foreign person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General:

  • To be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse.
  • To be a current or former government official, or a person acting for or on behalf of such an official, who is responsible for or complicit in, or has directly or indirectly engaged in:
    • corruption, including the misappropriation of State assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery; or
    • the transfer or the facilitation of the transfer of the proceeds of corruption.

 

Pursuant to Executive Order 13818, the President imposed sanctions on 13 serious human rights abusers and corrupt actors (named in annex to the order), while the Treasury Department’s Office of Foreign Assets Control (OFAC), acting on behalf of the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, imposed sanctions on an additional 39 affiliated individuals and entities.[18]

 

Another important novelty with the GMA and Executive Order 13818 is the inclusion of civil society organisations in the naming process. The law requires the President’s administration to consider any information submitted by non-governmental organisations (NGOs). As Elisabeth Witchel has noted: “The point of engagement for NGOs is in providing recommendations for sanction targets, along with documented case material. The law states that credible information from human rights and corruption monitoring groups will be considered, and, according to one State Department official, they welcome and encourage collaboration by non-governmental organisations.”

 

Sanctions for covered human rights abuses and corrupt acts, civil and criminal penalties for sanctions violations

For human rights abuses and corrupt acts, the Global Magnitsky Act and EO 13818 authorise financial and immigration sanctions. The Global Magnitsky Sanctions largely target foreign government officials and private parties (natural and legal). However, some US persons are “foreign persons” under the Global Magnitsky Act and have sanctions exposure in connection with certain corrupt acts and human rights abuses. Moreover, all US persons, like their foreign counterparts, are sanctionable for providing material and other support to certain conduct and persons. US and foreign persons also face civil and criminal penalties for violating or evading sanctions.

 

Financial sanctions: Blocking of property and prohibition of transactions with or for the benefit of blocked persons

Financial sanctions entail the “blocking” or freezing of the property or “interests in property” of sanctioned persons that is in or comes within the United States or the possession or control of a US person, including US banks and their foreign branches, US branches of foreign bank and US businesses and individuals. The property of a “blocked” person (a “specially designated national” or “SDN”) must be frozen and may not, without approval, be transferred or otherwise transacted in. The “interests in property” of a blocked person is property owned 50% or more, directly or indirectly, by one or more blocked persons individually or in the aggregate.[19] Entities that are owned 50% or more by one or more blocked persons are also blocked, pursuant to the Treasury Department Office of Foreign Assets Control’s “50% rule”.

In addition, EO 13818 prohibits transactions with or for the benefit of sanctioned parties, specifically (1) “the making of any contribution or provision of funds, goods, or services by, or to, or for the benefit of any … (blocked person)”; and (2) “the receipt of any contribution or provision of funds, goods, or services from any such person”.[20]

 

US financial sanctions are uniquely powerful

The financial penalties imposed by the Global Magnitsky Sanctions (and other US sanctions programs) are powerful, as they effectively cut off sanctioned persons from the US financial system and, substantially, US dollar transactions. Given the size and centrality of the US financial system to international commerce and payments, persons without access to US banks and other constituent parts of the US financial system are largely shut out of the international financial system (this assumes, of course, effective enforcement and compliance by US authorities, banks and international financial system participants).[21]

Put in context, the United States’ Global Magnitsky Act and sanctions program are singular in their force. Other countries have adopted versions of a Magnitsky Act (including Canada, which has imposed sanctions under its law), but none of these other Magnitsky frameworks rival the potential sweep and impact of the United States’ Magnitsky framework.[22]

 

Immigration Sanctions

The Global Magnitsky Act and EO 13818 impose immigration sanctions that prohibit sanctioned persons from immigrant and non-immigrant entry into the United States.[23] The Global Magnitsky Act excepts from immigration sanctions persons whose admission to the United States would “further important law enforcement objectives” or is “necessary to permit” the United States to comply with obligations vis-à-vis the United Nations.[24] EO 13818 contains no such exception.

 

Civil and criminal penalties for sanctions evasion and violations or conspiracies to violate financial sanctions

EO 13818 prohibits transactions that, in effect or purpose, “evade or avoid …” or “violate …” the financial sanctions provisions, as well as conspiracies to violate “any of the [blocking] prohibitions set forth in” the order.[25]

 

In addition, the Global Magnitsky Act provides that persons who violate or attempt or conspire to violate sanctions authorised by the Act, or persons who “cause … a violation” of sanctions, are subject to civil and criminal penalties pursuant to the International Emergency Economic Powers Act (IEEPA).[26] Civil penalties under the IEEPA are up to $250,000 or twice the amount of a transaction that was the source of a violation.[27] The IEEPA’s criminal penalties attach to wilful violations and attempts or conspiracies to violate a relevant sanctions program, as well as the wilful aiding or abetting of such acts, punishable by fines of up to $1,000,000 and/or imprisonment for up to 20 years.[28]

“It remains to be seen how the current administration will enforce the Global Magnitsky Sanctions. For now, their existence alone is a powerful weapon in the administration’s arsenal, a reality that should be taken seriously—and for different purposes—by a wide range of foreign government and private parties.”

 

Who can recommend individuals for the President to sanction?

The Act allows the Assistant Secretary of State for democracy, human rights, and labour, in consultation with other State Department officials, to submit recommendations for people to be sanctioned to the Secretary of State. The Committee on Banking, Housing, and Urban Affairs and the Committee on Foreign Relations in the Senate and the Committee on Financial Services and the Committee on Foreign Affairs in the House can also submit names to the President. In determining whether to impose sanctions, the President can also review credible information obtained by other countries or non-governmental organisations that monitor human rights violations. In practice, the decision about whether to carry out the sanctions will most likely be made jointly by the State Department and Treasury Department.

 

How effective are sanctions from the Global Magnitsky Act?

Sanctions deny individuals entry into the US, allow the seizure of any of their property held in the country, and effectively prevent them from entering into transactions with large numbers of banks and companies. Both American firms and international firms with American subsidiaries run the risk of violating US sanctions if they do business with sanctioned people. The law’s impact is exemplified by the Russian official sanctioned by the Magnitsky Act who hired a Russian lawyer, Natalia Veselnitskaya, to advocate against the Act at the US Congress and help establish a non-profit organisation opposing the Act.

 

Designations

OFAC has publicly designated 107 individuals under EO 13818, with 105 currently active designations following two removals. In 2017, 15 individuals were designated, followed by 28 in 2018, 52 in 2019, and 12 in the Global Magnitsky Human Rights Accountability Act <https://crsreports.congress.gov> 2020 to date (see Table 1 below). Among active designations, 60 individuals are designated primarily for human rights abuse, 42 are designated primarily for corruption, and 3 are designated for both human rights abuse and corruption. Also currently designated are 105 entities—many due to their being owned or controlled by a designated individual. Countries with five or more individuals designated include Saudi Arabia (17 individuals), Uganda (11), Serbia (10), Burma (9), Iraq (8), South Sudan (8), China (7), and Cambodia (6). In some instances, the executive branch has designated numerous individuals in relation to one case of human right abuse or corruption (for example, see “Section 1263(d) and Jamal Khashoggi”)[29]. The Global Magnitsky Act requires the President to report to Congress annually, by December 10, on designations made over the previous year. According to the December 2019 report, the United States prioritises actions “that are expected to produce a tangible and significant impact on the sanctioned person and their affiliates, to prompt changes in behaviour or disrupt the activities of malign actors”.

 

Congressional Input on Designations

In making sanctions determinations, the law requires the President to consider information provided jointly by the Chairperson and Ranking Member of certain committees — Senate Banking and Foreign Relations, and House Financial Services and Foreign Affairs—as well as credible information obtained by foreign countries and non-governmental human rights organisations. A separate provision, Section 1263(d), requires the President to respond within 120 days to requests from the aforementioned committee leadership to determine whether a foreign person has engaged in sanctionable activity under the law and whether or not the President intends to impose sanctions.[30] When signing the Bill into law, however, President Barack Obama singled out this latter requirement as a challenge to constitutional separation of powers and indicated that he would “maintain [his] discretion to decline to act on such requests when appropriate”.

 

Other Sanction Authorities

Congress has enacted other broad sanctions authorities to target human rights abusers or individuals involved in other nefarious activities, as well as country-specific laws that aim to impose sanctions for these reasons. In addition, the President has used emergency authorities in the

National Education Association (NEA) and IEEPA to impose economic sanctions on individuals in certain countries.[31]

Section 212 of the Immigration and Nationality Act, 1952 (INA) similarly provides the Secretary of State with broad authority to impose entry denials. A recurring provision, Section 7031(c), in annual foreign operations appropriations requires the Secretary of State to deny visas to enter the United States to foreign officials and their immediate family members about whom the Secretary has credible information that the individual is “involved in significant corruption … or a gross violation of human rights”. In some cases, the executive branch has publicly sanctioned individuals both pursuant to this appropriations provision as well as under EO 13818 or other economic sanctions programs.[32]

 

Similar Legislations in Other Countries

Several European countries, Canada, and the European Parliament passed Bills imposing sanctions on Russian officials implicated in Sergei Magnitsky’s death. Recently, several countries have expanded their sanctions regimes to include human rights abusers from any country. On February 21, the United Kingdom passed its own version of the Global Magnitsky Act. Estonia passed a similar law in 2016. The Canadian Parliament and European Parliament are both considering Bills to target international human rights violators.

 

Other Western States are following America’s lead. In 2017, the UK passed its own Magnitsky law, the Criminal Finances Act, which allows authorities to recover proceeds of gross human rights abuses overseas that are housed in the UK. Likewise, in 2017 the Canadian Parliament passed the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).[33]

 

Estonia, Latvia and Lithuania have also implemented dozens of “Magnitsky sanctions,” a move Bryce Klehm has called “an extraordinarily symbolic move given their geographical proximity to Russia”.[34] Moreover, according to Bill Browder, several other countries appear ready to adopt Magnitsky laws, including Sweden, Ukraine and South Africa.[35] Browder reasons: “It is clear we have reached a tipping point, and getting France and Germany on board is next. These countries will tip the balance of getting an EU-wide Magnitsky Act. I do not expect the process to be easy, but we have accomplished so much more than I expected recently, that I think anything is possible now.”[36]

 

Canadian Magnitsky Law

In March 2015, the Parliament of Canada passed an initial motion towards passing such a law.[37] Canada’s Sergei Magnitsky Law, officially the Justice for Victims of Corrupt Foreign Officials Act, received royal assent and was passed into law on 18-10-2017.[38] The Act is regulated by the Justice for Victims of Corrupt Foreign Officials Regulations.[39]

 

On 29-11-2018, Canada amended the regulations to include 17 foreign nationals from Saudi Arabia, who were accused of being responsible for or complicit in gross violations of internationally recognised human rights, particularly the torture and extra-judicial killing of Saudi journalist Jamal Khashoggi.[40]

 

European Magnitsky Act

In March 2019, the European Parliament passed a Resolution 44770 in favour of passing a Magnitsky Act for the European Union.[41] In her September 2020 State of the European Union address, Ursula von der Leyen stated that one of the European Commission’s goals was passing a European Magnitsky Act.[42]

On 6-7-2020, United Kingdom’s Foreign Secretary Dominic Raab announced the first sanctions under a law similar to the Global Magnitsky Act, where 47 individuals came under travel restrictions and asset freezes. The regulations were meant to give the Government a power to impose sanctions on those involved in the worst human rights abuses around the world.[43]

 

American Convention on Human Rights, 1969[44]

As per Article 1 of the Convention, the States parties have an obligation to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

 

Inter-American Convention to Prevent and Punish Torture, 1987

The Inter-American Convention to Prevent and Punish Torture (IACPPT)[45] specifies the measures that American States must take in order to not only punish perpetrators of torture, but also to prevent and punish any other cruel, inhuman or degrading treatment within their respective jurisdictions.

 

In accordance with Article 6, all parties must actively take efficient measures in order to “prevent and punish torture within their jurisdiction”. This includes ensuring that such acts or attempts to commit torture are considered offences under their respective criminal law, and are appropriately punished through penalties reflecting the nature of the crime. In accordance with Articles 3 and 4, this also includes protection from private actors, including public servants or employees, and any such individual who has acted under the orders of a superior.

 

In Article 7, the Convention states that all State parties shall take an active duty in properly training police officers and other public officials in charge of the detainment of persons deprived of their freedom. In doing so, there should be special attention to the “prohibition of the use of torture in interrogation, detention or arrest,” as well as an emphasis on measures to, “prevent other cruel, inhuman or degrading treatment or punishment”. In terms of extradition, according to Article 11, all parties must “extradite anyone accused of having committed the crime of torture or sentenced for commission of that crime, in accordance with their respective national laws on extradition and their international commitments on this matter”. State parties can practise jurisdiction when the punishable offence has been committed within their jurisdiction and when the alleged perpetrator and/or victim is a national of their State.

 

According to Article 17, “the States parties undertake to inform the Inter-American Commission on Human Rights of any legislative, judicial, administrative, or other measures they adopt in application of this convention”. States are obligated to report to the Commission any actions that are considered torture, and any preventive measures they are imposing within their jurisdiction. Furthermore, the Inter-American Commission on Human Rights will attempt to annually report and analyse the actual status of Member States of the Organisation of American States (OAS) in reference to the prevention and elimination of torture.

 

According to Article 8, in terms of individual cases, whether initiated by individuals or the State, the cases may be “submitted to the international fora whose competence has been recognised by that State”. While this article does not specify the Inter-American Court, if a State has accepted the Inter-American Court’s jurisdiction in their region, then the Inter-American Court is the forum that is utilised. Once States have ratified or acceded the convention, as well as filed a declaration of compliance recognising the court’s jurisdiction at the time of the purported torture, then the court may rule on the State’s liability for violating the treaty. If a State has not expressly declared compliance with the court’s jurisdiction, then the court cannot use its jurisdiction to carry out judgment. States may accept jurisdiction of the court with a temporal condition, generally to avoid retroactive prosecution (e.g. stipulating that the court’s jurisdiction applies after a certain date).[46]

 

Inter-American Convention on Forced Disappearance of Persons, 1994

Organisation of American States (OAS) are signatory to the Inter-American Convention on Forced Disappearance of Persons, 1994. As per Article 1 of the Convention[47], the State parties shall not practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

Besides, the State parties are responsible to punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.[48]

 

The States are further required to cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons and thereby take any legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.[49]

 

As per Article VI, when a State party does not grant the extradition, the case shall be submitted to its competent authorities as if the offence had been committed within its jurisdiction, for the purposes of investigation and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communicated to the State that has requested the extradition.[50]

 

International Human Rights Law Perspective

First, under international human rights law, the obligations of States parties relate only to the promotion and protection of the human rights of their own citizens or others living within their own jurisdiction. In other words, the international human rights system, which emerged and evolved in the aftermath of the Second World War, is, in principle, respectful of State sovereignty. While some steps have been taken, over the intervening years, to “pierce holes” in this protective veil of sovereignty (e.g. the adoption of country-specific human rights resolutions, and the creation of country-specific special procedures), by and large there remains little scope, beyond public criticism and condemnation, for one UN Member State to seriously address (i.e. secure some degree of justice/legal accountability for) human rights violations perpetrated by and within another State.

 

Second, and linked to the first point, international human rights law, and the work of the international human rights system – led by the UN Human Rights Council – is extremely State-centric. In this, it perfectly reflects the neorealist nature of the overall international system (i.e. it is based on the sovereign interactions of nation States). By extension, it is States – not individual representatives of those States – that ratify and become party to the international human rights treaties. Thus, when States in the UN Human Rights Council consider the violation of human rights, including serious violations such as arbitrary detention, torture and extra-judicial killing, their comments (and any consequent UN resolution) are usually focussed on the State concerned rather than on individual representatives of that State (though senior politicians and military commanders are sometimes mentioned). This can – and usually does – have the effect of creating a sense of impunity on the part of State officials (especially those representing powerful States) – a sense that they can “hide” behind the State and are, in effect untouchable.

 

Third, in order for States to be bound by international human rights law, they must first voluntarily ratify the relevant UN human rights treaty or treaties. Notwithstanding jus cogens principles of international law (e.g. freedom from torture), the human rights obligations of States are usually understood to be limited (especially by States themselves) to those treaties to which they are party.

 

Finally, in the political organs of the UN human rights system, it is traditionally very difficult to prove that phenomena such as, for example, climate change or corruption, constitute a violation of human rights. That is because of the legal difficulties inherent in demonstrating causality  i.e. between an act or omission on the part of a State and a demonstrable harm to an individual’s rights. Indeed, it is usually US diplomats at the UN who take the hardest (and most legalistic) line on this point, arguing that there may be a relationship between, say, climate change and human rights, or even that climate change might undermine certain human rights, but drawing a clear line between this and any recognition that global warming violates the rights of those affected.

 

The Global Magnitsky Act (GMA) represents a fundamental challenge to, and paradigm shift from, these key precepts of international human rights law and policy.

  • First, it in effect extends US jurisdiction to address and respond to the violation of human rights anywhere in the world (i.e. it creates a system of universal jurisdiction).
  • Second, it creates and explicitly recognises a causal link between grand corruption and serious human rights violations.
  • Third, rather than targeting sanctions for serious human rights violations/grand corruption at States, the GMA directly and explicitly targets individual representatives of the State, specifically those individuals responsible for the alleged human rights violation. This has the potential to transform conceptions of international human rights law, justice and accountability.
  • Finally, under the GMA it is irrelevant whether or not the State in which the violation is alleged to have taken place is party – or not – to the relevant international human rights treaties.

 

Rationale of International Human Rights Law

The international human rights movement was strengthened when the United Nations General Assembly adopted of the Universal Declaration of Human Rights (UDHR) on 10-12-1948. A series of international human rights treaties and other instruments adopted since 1945 have conferred legal form on inherent human rights and developed the body of international human rights. Other instruments have been adopted at the regional level reflecting the particular human rights concerns of the region and providing for specific mechanisms of protection. Most States have also adopted constitutions and other laws which formally protect basic human rights. While international treaties and customary law form the backbone of international human rights law other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development. Respect for human rights requires the establishment of the rule of law at the national and international levels.[51]

 

As international law currently stands, States are the primary duty-bearers of human rights obligations. In principle, however, human rights can be violated by any person or group, and in fact, human rights abuses committed by non-State actors (such as business enterprises, organised criminal groups, terrorists, guerrilla and paramilitary forces and inter-governmental organisations) are on the increase.

 

International human rights treaties and customary law impose three obligations on States: the duty to respect; the duty to protect; and the duty to fulfil. While the balance between these obligations may vary according to the rights involved, they apply to all civil, political, economic, social and cultural rights. Moreover, States have a duty to provide a remedy at the domestic level for human rights violations.[52]

 

International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.

 

Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.

 

Protection of freedom of expression of parliamentarians

Parliamentary immunities ensure the autonomy, independence and dignity of the representatives of the nation and of the institutions of Parliament itself by protecting them against any threat, intimidation or arbitrary measure by public officials or other persons. The scope of immunities varies. The minimum guarantee, which applies to all Parliaments, is non-accountability. Under this guarantee, parliamentarians in the exercise of their functions may express themselves freely without the risk of sanctions, other than that of being disavowed by the electorate, which may eventually not renew their mandates. In many countries, Members of Parliament also enjoy inviolability: it is only with the consent of Parliament that they may be arrested, detained and subjected to civil or criminal proceedings. Inviolability is not equivalent to impunity. It merely entitles Parliament to verify that proceedings brought against its members are legally well founded.[53]

 

Occupation and international humanitarian law – No sanction of Security Council required

Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”.[54]

 

According to their common Article 2, the four Geneva Conventions of 1949 apply to any territory occupied during international hostilities. They also apply in situations where the occupation of State territory meets with no armed resistance.[55]

 

The legality of any particular occupation is regulated by the UN Charter and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful.[56]

 

Therefore, for the applicability of the law of occupation, it makes no difference whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an “invasion”, “liberation”, “administration” or “occupation”. As the law of occupation is primarily motivated by humanitarian considerations, it is solely the facts on the ground that determine its application.[57]

 

Private property cannot be confiscated by the occupier. The occupant does not acquire ownership of immovable public property in the occupied territory, since it is only a temporary administrator. Subject to restrictions regarding their exploitation and use, it can nevertheless make use of public property, including natural resources, but it must safeguard their capital value, in accordance with the law of usufruct (HR, Article 55).[58]

 

The normal way for an occupation to end is for the occupying power to withdraw from the occupied territory or be driven out of it. However, the continued presence of foreign troops does not necessarily mean that occupation continues.[59]

UN Charter — Sanctions authorised by Security Council

Chapter VII of the UN Charter powers mandate the UN Security Council to sanction intervention to meet threats to international peace and security. Any such action runs counter to the general principle of non-intervention stated in the Charter, Article 2(4), which reads:

 

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.

 

Security, development and human rights constitute the three mutually dependent pillars of the United Nations. Matters of international peace and security are discussed and decided in the Security Council, which can impose binding sanctions and authorise the use of military force under Chapter VII of the UN Charter.[60]

  • Article 41 – Measures not involving the use of armed force

Among the most common measures not involving the use of armed force, which the Council has at its disposal to enforce its decisions, are those measures that are known as sanctions. Sanctions can be imposed on any combination of States, groups or individuals. The range of sanctions has included comprehensive economic and trade sanctions and more targeted measures such as arms embargoes, travel bans, financial or diplomatic restrictions. Apart from sanctions, Article 41 includes measures such as the creation of international tribunals (such as those for the former Yugoslavia and Rwanda in 1993 and 1994) or the creation of a fund to pay compensation for damage as a result of an invasion.[61]

  • Article 42 – Other measures to maintain or restore international peace and security

Article 42 of the Charter enables the Council to use force to maintain or restore international peace and security if it considers non-military measures to be or to have proven inadequate. As the United Nations does not have any armed forces at its disposal (for details, see Article 43), the Council uses Article 42 to authorise the use of force by a peacekeeping operation, multinational forces or interventions by regional organisations.[62]

 

Sanctions authorised by Security Council to combat terrorism

Since 2003 Security Council resolutions have gradually directed States to ensure that counter-terrorism measures comply with international human rights law.[63] Among the most important of these is Resolution 1456 of 2003, which calls on States to “ensure that any measure taken to combat terrorism comply with all their obligations under international law … in particular international human rights, refugee, and humanitarian law”.[64] In 2005 the UN Counter-Terrorism Committee, established by the Security Council to monitor compliance with Resolution 1373, appointed a human rights advisor to its executive directorate.[65] However, the advisor was not allowed to advise the Counter-Terrorism Committee until 2006.[66] In 2010 the Security Council encouraged the Committee’s Executive Directorate to further incorporate human rights into its work.[67] The Security Council also supported a statement by the UN General Assembly that respect for human rights and the rule of law are the “fundamental basis of the fight against terrorism” and that violations of human rights can be “conducive to the spread of terrorism”.[68]

 

In response to mounting criticism and legal challenges, the Security Council has also started to reform the Al Qaeda and Taliban Sanctions List.[69] These reforms still fall short. As Martin Scheinin, the then — UN Special Rapporteur on Human Rights and Counter-Terrorism, said in his final report to the UN General Assembly in August 2010, the counter-terrorism regime created by the Security Council in some cases “continues to pose risks to the protection of a number of international human rights standards”.[70] He later noted that the procedures for terrorist listing and delisting under the Al Qaeda and Taliban Sanctions List by the Security Council’s 1267 Committee still did not meet international human rights standards concerning due process or fair trial.[71]

 

Convention Against Torture and other cruel, inhuman or degrading treatment or punishment

The United States Senate ratified the Convention Against Torture on 27-10-1990 and became a party to the Convention Against Torture (CAT) on 21-10-1994.[72]

State parties’ obligations

States that are party to the CAT are required to fulfil the following obligations:

  • Take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction (Article 2).[73]
  • Not expel, return, or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subject to torture (Article 3).
  • Make torture a punishable offence; take into custody individuals who torture; and submit cases of torture to the proper authorities for prosecution (Articles 4-7).

 

Applicability of such laws in India

The applicability of foreign judgments and decrees in India is governed under Section 44-A of the Code of Civil Procedure (CPC) read along with the provisions of Section 13 of the Code of Civil Procedure. According to Section 13 of the Code of Civil Procedure, 1908, a proceeding against a foreign judgment can be instituted in the following two ways:

(1) A proceeding could be instituted under the provisions of Section 44-A read alongside the necessary provisions which are provided in Section 13 CPC, this is when the matter that has to be challenged is decided by a competent court in the, “reciprocating territories”.

(2) There are reciprocating territories and non-reciprocating territories. In case, a judgment which is passed in the territory of a non-reciprocating country needs to be challenged, then a fresh civil suit needs to be filed in the court in India in order to challenge the judgment passed by the foreign court. However, not only civil, but even criminal proceedings could be instituted challenging the judgment or the decree, passed by a court in a reciprocating or a non-reciprocating territory, however, they are also subject to certain exceptions which shall be dealt with ahead.

 

Judgments from “non-reciprocating territories”, such as the United States, can be enforced only by filing an execution decree in an Indian court for a judgment based on the foreign judgment. The foreign judgment is considered evidentiary. Presently, the United States of America is not declared as a “reciprocating territory”[74] by the Government of India.

The time limit to file such a lawsuit in India is within three years of the foreign judgment.

A foreign judgment is considered conclusive by an Indian court if such judgment:

  • has been pronounced by a court of competent jurisdiction;
  • has been given on the merits of the case;
  • is founded on correct view of international law;
  • is contained in proceedings that followed principles of natural justice;
  • has not been obtained by fraud; and
  • does not sustain a claim on a breach of any law in force in India.

Rule of law as enshrined in Part III of the Indian Constitution for implementation of democracy and protection of human rights is the supreme law which excludes existence of arbitrariness. However, such rule of law cannot be established by mere enactment of law and judiciary ensures enforcement of such rights.

 

Doctrine of Territorial Nexus

Therefore, in present times, the Parliament may enact a law related to extra-territorial operations. The only problem is the enforcement of such extra-territorial operations of law, because it is beyond the executive and judicial domain of India. If an extra-territorial law cannot be enforced, then it is useless to enact it but no one can suggest today that a law is void or ultra vires which is passed by the Parliament on the ground of its extra-territorial operations. Thus a question mark may be put on the practicability of the extra-territorial operation law but not on its existence. The Indian Parliament can enact laws for territories outside of India that have an impact on or a nexus with India. The laws can be enacted for only such extra-territorial operations that have a real connection or an expected real connection with India and nothing illusionary or fanciful. Thus, on account of their having some nexus with India, the Indian Parliament can enact such laws for the benefit of the people of India.

 

In GVK Industries Ltd. v. ITO[75] a question arose whether the Parliament was empowered to enact laws in respect of extra-territorial aspects or causes that have no nexus with India, and furthermore if such laws be bereft of any benefit to India? The clue of answer to this question also lies in word “for” used in Article 245(1). The Court derived the responsibility of the Parliament with the help of word “for” used in Article 245(1) and stated that Parliament of India is to act as the Parliament of India and of no other territory, nation or people. The Court also derived two related limitations in this regard, the first being that the Parliament may only exercise its powers for the benefit of India in regard to the necessity. The laws enacted by Parliament may enhance the welfare of people in other territories too but the benefit to or of India remains the central and primary purpose. The second limitation that the law made by Parliament with regard to extra-territorial aspects or causes that do not have any, or may be expected to not have nexus with India, transgress the first condition. Sudershan Reddy, J. for Constitution Bench negated the answer of question logically and held that the Parliament’s powers to enact legislation, pursuant to clause (1) of Article 245 may not extend to those extra-territorial aspects or causes that have no impact on or nexus with India.[76]

 

The law made by the Parliament related to extra-territorial operations is within judicial scrutiny but can never be deemed as invalid on grounds of its extra-territorial nature and in this way, Article 245(2) reduces the power of judiciary to invalidate such laws. The Parliament of India is empowered to make laws beyond territorial boundary of India but the law must have a nexus or an impact on India. If the Parliament makes laws having extra-territorial operation without having any nexus with or any impact on India, then under such circumstances; judiciary has the power to invalidate such a law because it does not fulfil the condition of Article 245(2). Thus, the words of Article 245(2) create a specific exception for the law made by Parliament in respect of Article 245(1).

 

Government of India can enter into an agreement of foreign jurisdiction subject to the Foreign Jurisdiction Act, 1947. The mandate of Article 260 clearly rules out the possibility of Parliament under Article 245(2) acting outside the territory of India without having any nexus. Therefore, Article 245(2) requires nexus with India. For Article 260, the only condition is agreement subject to the Foreign Jurisdiction Act of 1947. The extra-territorial operation of law is allowed under Article 245(2) of the Constitution of India because the phrases “operation of law” and “making of law” do not possess the same meaning.

 

The dimension of “extra-territorial operation of law” and its distinction with “make law”. The distinction between the phrases “make laws” and “extra-territorial operation of law” is important to understand the constitutional scheme envisaged under Articles 245(1) and (2) of the Constitution of India. The conflict between “principle of sovereignty of States” that reflects in the phrase “make law” (the laws made by one State can have no operation in another State) and “extra-territorial operation of law” reflected in Article 245(2) was drawn in Electronics Corpn .of India Ltd. v. CIT (ECIL).[77]  In this case, the three-Judge Bench of Supreme Court relied on the ratio of British Columbia Railway Co. Ltd. v. R.[78] that the problems of inability to enforce the laws outside the territory of a nation State cannot be grounds to hold such laws invalid. For the Bench R.S. Pathak, C.J. held that a parliamentary statute having extra-territorial operation cannot be ruled out from contemplation. The operation of the law can extend to persons, things and acts outside the territory of India.[79]

 

In ECIL case[80], the Court distinguished the phrase “make law” and “extra-territorial operation of law” on the basis of provocation for the law, object of law and its relationship with India. In both the situation, the provocation for the law must be found within India itself. But in the situation of extra-territorial operation, in order to subserve the object, the law may have exercises beyond the territorial boundary of India and in such conditions; the object must be related to something in India. The Court also stated that it is inconceivable in a situation of extra-territorial operation that law made by Parliament in India has no relationship with anything in India. Finally, the Supreme Court in ECIL case[81] defined the parameter of extra-territorial operation of law and held that Parliament have competence to enact laws with respect to aspects or causes that occur, arise or exist, or may be expected to do so, solely within India. The operation of the law can extend to person, things and acts outside the territory of India. Parliament will have no competence to make the laws unless a nexus with something in India exists. In view of the substantial importance of the question, the Bench referred the case for determination by a Constitution Bench. The dimension of extra-territorial operation of law was again substantially discussed in GVK Industries Ltd. v. ITO[82] by five-Judge Constitution Bench of the Supreme Court of India which opined that the distinction drawn in ECIL case[83] between “make laws” and “operation of law” is a valid one, and leads to a correct assessment of the relationship between clauses (1) and (2) of Article 245. In this case, the Court applying the novel interpretative methodology observed:[84] [The] Constitution [may be viewed] as [being] composed of constitutional topological spaces. Each part of the Constitution deals with certain core functions and purposes, though aspects outside such a core, which are contextually necessary to be included, also find place in such parts. In the instant case Chapter 1, Part XI, in which Article 245 is located, is one such constitutional topological space. Within such a constitutional topological space, one would expect each provision therein to be intimately related to, gathering meaning from, and in turn transforming the meaning of, other provisions therein.

 

The “topological space” theory was applied in the interpretation of Articles 245(1) and (2) and derive contextual necessary support from Article 1(3)(c), Articles 51 and 260 as abovementioned from other part of the Constitution of India. The Court also analysed the textual and historical arguments of Articles 245(1) and (2) of the Constitution of India and arrived at the conclusion that Article 245 does not empower the Parliament to make laws beyond territorial boundary of India except in the case that extra-territorial operation of law has a nexus with or an impact on India.[85] The other provisions of Chapter 1, Part XI of the Constitution of India create a topological space referred to laws made “for the whole or any part of the territory of India” alone. The Court after analysis of ratio of ECIL case[86] and wider structural analysis of the constitutional provision, finally held that the Parliament is constitutionally restricted from enacting legislation with respect to extra-territorial aspects or causes that do not have, nor expected to have any direct or indirect, tangible or intangible impact or the effect or consequence for the territory of India, or any part of India or the interests of the welfare of the well-being of or security of inhabitants of India and Indians.[87] Therefore, in present times, the Parliament may enact a law related to extra-territorial operations. The only problem is the enforcement of such extra-territorial operations of law, because it is beyond the executive and judicial domain of India. If an extra-territorial law cannot be enforced, then it is useless to enact it but no one can suggest today that a law is void or ultra vires which is passed by the Parliament on the ground of its extra-territorial operations. Thus a question mark may be put on the practicability of the extra-territorial operation law but not on its existence. The Indian Parliament can enact laws for territories outside of India that have an impact on or a nexus with India. The laws can be enacted for only such extra-territorial operations that have a real connection or an expected real connection with India and nothing illusionary or fanciful. Thus, on account of their having some nexus with India, the Indian Parliament can enact such laws for the benefit of the people of India.


† Advocate is a practicing counsel at the Supreme Court of India, BA LLB (Hons.), LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford and Research Associate (India) University of Oxford, United Kingdom.

Credits to Gauranshi Harjai, Advocate for her assistance in the research and compilation. The content of the article are personal and has no bearing on the institutional affiliations of the author.

[1] “US Law Firm Seeks Action Against Adityanath, UP Top Cops for ‘Encounter’ Killings”, The Wire, 21-2-2022  <US Law Firm Seeks Action Against Adityanath, UP Top Cops for “Encounter” Killings (thewire.in)>.

[2] US Government sanctions RAB, Bangladesh police chief See < HERE >

[3] “US Law Firm Seeks Action Against Adityanath, UP Top Cops for ‘Encounter’ Killings”,  The Wire, 21-2-2022  <US Law Firm Seeks Action Against Adityanath, UP Top Cops for “Encounter” Killings (thewire.in)>.

[4] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 USC § 5811 note)].

[5] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 USC § 5811 note)] at § 402(a)(7)-(10) (outlining Congress’ findings and sense as to the “politically motivated … persecution” of Sergei Magnitsky and subsequent “impunity [of certain Russian state officials] for their involvement in corruption and the carrying out of his repressive persecution”. (Please check)

[6] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[7] The Russian Foreign Ministry released a list of 18 current or former US officials on April 13 who it said “are connected to legalising torture and unlimited detention of prisoners in the special prison at Guantanamo [and] to the arrests and kidnapping of Russian citizens in third countries and infringing on their lives and health.” “Russia Responds to ‘Magnitsky List’ by Banning Americans” 13-4-2013. Radio Free Europe Radio Liberty, <Russia Responds to ‘Magnitsky List’ by Banning Americans (rferl.org)>.

[8] The Russian Foreign Ministry released a list of 18 current or former US officials on April 13 who it said “are connected to legalising torture and unlimited detention of prisoners in the special prison at Guantanamo [and] to the arrests and kidnapping of Russian citizens in third countries and infringing on their lives and health.” “Russia Responds to ‘Magnitsky List’ by Banning Americans” 13-4-2013. Radio Free Europe Radio Liberty, <Russia Responds to ‘Magnitsky List’ by Banning Americans (rferl.org)>.

[9] Exec. Order No. 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The order took effect on 21-12-2017. Id. at § 12 (please check).

[10] EO 13818, preamble. The President declared a national emergency and invoked powers pursuant to the International Emergency Economic Powers Act, 50 USC § 1701 (IEEPA), even though the Global Magnitsky Act does not require such a declaration to impose sanctions. Pub. Law No. 114-328, § 1263(b)(1)(B) (stating that “the requirements of S. 202 of the … [IEEPA] … shall not apply for the purposes of … [the imposition of sanctions]”. The President’s declaration under the IEEPA of a national emergency provides the legal authority needed to support the many provisions of EO 13818 that exceed the scope of the Global Magnitsky Act.

[11] Global Magnitsky Human Rights Accountability Act, Subtitle F of the National Defense Authorization Act for Fiscal Year 2017, Pub. Law No. 114-328, §§ 1262-65 at § 1263, codified at 22 USC 2656 note (23-12-2016).

[12] A subsequently enacted law targets foreign corruption and human rights abuses, but in particular jurisdictions.  The Countering America’s Adversaries Through Sanctions Act (CAATSA), Pub. Law No. 115-44, 131 Stat. 886 (2-8-2017) provides for, inter alia: the imposition of sanctions on, among others, persons responsible for or complicit in “significant corruption” in the Russian Federation, Pub. Law No. 115-44, § 227, against persons engaged in certain human rights abuses in Iran (Pub. Law No. 115-44, Title II, Countering Iran’s Destabilising Activities Act of 2017 at § 106) and North Korea (Pub. Law No. 115-44, Title III, Korean Interdiction and Modernisation of Sanctions Act, §§ 321-322).

[13] Sergei Magnitsky Act, Pub. Law No. 112-208, § 402(a)(10).

[14] Exec. Order No. 13, 818, “blocking the property of persons involved in serious human rights abuse or corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The order took effect on 21-12-2017. Id. at § 12.  (Please check)

[15] Exec. Order No. 13, 818, “blocking the property of persons involved in serious human rights abuse or corruption, 82 Fed. Reg. 60, 839 (20-12-2017) [“EO 13818” or the “order”]. The Order took effect on 21-12-2017. Id. at § 12. (Please check)

[16] Sergei Magnitsky Rule of Law Accountability Act of 2012 [Title IV of Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. Law No. 112-208, 126 Stat. 1502 (codified at 22 U.S.C. § 5811 note)].

[17] It is only after sanctions have been imposed that the Global Magnitsky Act considers whether justice has been administered as it authorizes the President to “terminate the application of sanctions” if he (or she) determines that a sanctioned person “has been prosecuted appropriately” or “credibly demonstrated a significant change in behaviour, has paid an appropriate consequence . . . and has credibly committed to not engage in  . . . (a sanctionable activity) in the future.” Global Magnitsky Act, Pub. Law No. 114-328, § 1263(g)(2)-(3) (providing also at § 1263(g) that the President must report the termination of sanctions to the appropriate congressional committees at least 15 days before such termination).

[18] Individuals targeted include: Yahya Jammeh, the former President of the Gambia; Maung Maung Soe, Chief of the Burmese Army’s Western command, who oversaw the military operation in Burma’s Rakhine State that was responsible for widespread human rights abuses against Rohingya civilians; Sergey Kusiuk, commander of an elite Ukrainian police unit (the Berkut) accused of attacking peaceful protesters in 2013; Julio Antonio Juarez Ramirez, a Guatemalan Congressman accused of ordering an attack in which two journalists were killed and another injured; Ramzan Kadyrov, Head of the Chechen Republic; Roberto Jose Rivas Reyes, President of Nicaragua’s Supreme Electoral Council; Dan Gertler, an Israeli billionaire who has profited from corrupt mining deals in the DRC; Slobodan Tesic, an arms dealer in the Balkans; and Artem Chaika, the son of Russia’s Prosecutor General.

[19] “Interests in property” refers to property that is directly or indirectly owned 50% or more by one or more blocked persons. US Department of the Treasury, revised guidance on entities owned by persons whose property and interests in property are blocked, 13-8-2014. See also OFAC, entities owned by persons whose property and interest in property are blocked (50% Rule) (“OFAC 50% Rule Guidance”). For a discussion of the 50% rule and related due diligence (sanctions screening) practices, see, e.g. Hdeel Abdelhady, United States Adds Russian Direct Investment Fund, Other Russian Financial Services Actors to Sectoral Sanctions ListMassPoint PLLC, 7-8-2015.

[20] EO 13818, § 4.

[21] For a discussion of how the international strength of the US financial system and dollar play a role in extending the global reach of US law, see Hdeel Abdelhady, emerging trade and finance channels led by on-western nations could curtail the global reach of US lawMassPoint PLLC, 11-6-2015 (discussing the relationship between US financial system and dollar strength and the extraterritorial reach of US sanctions and other laws).

[22] See, e.g. Michelle Zilio, “Canada Sanctions 52 Human-Rights Violators Under New Magnitsky Law“, The Globe and Mail, 3-11-2017.

[23] The Global Magnitsky Act excepts from immigration sanctions persons whose admission to the United States would “further important law enforcement objectives” or is “necessary to permit” the United States to comply with obligations vis-à-vis the United Nations. Pub. Law No. 114-328, §1263(e).

[24] Id. at § 1263(e).

[25] EO 13818, § 5.

[26] Global Magnitsky Act, Pub. Law No. 114-328, § 1263(f) (incorporating the penalties of the IEEPA, 50 USC § 1705).

[27] IEEPA, 50 USC § 1705(b).

[28] Id. at § 1705(c).

[29] In October 2018, the then—Chairman and Ranking Member of the Senate Foreign Relations Committee, joined by other Senators, pursuant to S. 1263(d) requested a determination from the President concerning Global Magnitsky sanctions with respect to “any foreign person responsible” for gross human rights violations against Saudi journalist Jamal Khashoggi. In November 2018, the Trump Administration announced Global Magnitsky sanctions against 17 Saudi officials “for having a role” in Khashoggi’s killing. The administration ultimately declined, however, to provide a determination in response to the congressional request, prompting criticism from some Members of Congress.

[30] <PUBL328.PS (treasury.gov)>

[31] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[32] “The Global Magnitsky Human Rights Accountability Act” In Focus, Congressional Research Service, updated 28-10-2020 <The Global Magnitsky Human Rights Accountability Act (congress.gov)>.

[33] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[34] Klehm, Bryce. “The Magnitsky Act: Legislative Justice.” Penn Undergraduate L.J., The Roundtable (2018). Web: available HERE .

[35] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[36] Witchel, Elisabeth. “The Magnitsky Act: An Alternative Form of Justice, but not a Replacement for it.” IFEX, 21-12-2017. Web: available <HERE >.

[37] Clark, Campbell (25-3-2015). “All Parties Signal Support for Magnitsky Law to Sanction Russian Officials”The Globe and MailArchived from the original on 25-2-2019. Retrieved 11-3-2018.

[38]  “Senate Public Bill 42nd Parliament, 1st Session.” LEGIS info. Parliament of Canada. Archived from the original on 3-7-2020. Retrieved 1-7-2020.

[39]Justice for Victims of Corrupt Foreign Officials Act.” Canada’s International Relations. Ottawa: Government of Canada. 16-10-2019. Retrieved 21-10-2020.

[40]Justice for Victims of Corrupt Foreign Officials Act.” Canada’s International Relations. Ottawa: Government of Canada. 16-10-2019. Retrieved 21-10-2020.

[41] Brzozowski, Alexandra (10-12-2019). “EU Ministers Break Ground on European ‘Magnitsky Act’ “Euractiv. Retrieved 16-9-2020.

[42] Emmott, Robin (16-9-020). “Be Courageous in Diplomacy, EU Chief Says, Proposing New Sanctions”. Reuters. Retrieved 16-9-2020.

[43] “Britain’s New Toughness on Human Rights Abusers is a Welcome Change.” The Washington PostArchived from the original on 13-7-2020. Retrieved 12-7-2020.

[44] Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22-11-1969.

[45] The IACPPT was adopted by the General Assembly of the OAS in 1985. It entered into force in 1987 after 18 States ratified or acceded to it.

[46] <Inter-American Convention to Prevent and Punish Torture (humanrightscommitments.ca)>

[47] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[48] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[49] Article 1: The States parties to this Convention undertake:

(a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees.

(b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories.

(c) To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons.

(d) To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.

[50] “Inter-American Convention on Forced Disappearance of Persons” 9-6-1994, UNHCR. <Refworld | Inter-American Convention on Forced Disappearance of Persons> Retrieved on 24-2-2022.

[51] International Human Rights, United Nations Human Rights <OHCHR | International Law>.

[52] “Human Rights”, United Nations Human Rights, Ch. 2, p. 30, Inter-Parliamentary Union, 2016. <HandbookParliamentarians.pdf (ohchr.org)>.

[53] “Human Rights”, United Nations Human Rights, Ch. 2, p. 30, Inter-Parliamentary Union, 2016. <HandbookParliamentarians.pdf (ohchr.org)> p. 92.

[54] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[55] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[56] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[57] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and International Humanitarian Law: Questions and Answers – ICRC>.

[58] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and international humanitarian law: questions and answers – ICRC>.

[59] “Occupation and International Humanitarian Law: Questions and Answers” 4-8-2004, International Committee of the Red Cross” <Occupation and international humanitarian law: questions and answers – ICRC>.

[60] Art. 39. Determination of threat to the peace, breach of the peace, or act of aggression: Before the Security Council can adopt enforcement measures, it has to determine the existence of any threat to the peace, breach of the peace or act of aggression. The range of situations which the Council determined as giving rise to threats to the peace includes country-specific situations such as inter- or intra-State conflicts or internal conflicts with a regional or sub-regional dimension. Furthermore, the Council identifies potential or generic threats as threats to international peace and security, such as terrorist acts, the proliferation of weapons of mass destruction or the proliferation and illicit trafficking of small arms and light weapons;

Art. 40 – Provisional measures to prevent aggravation of a situation:

The objective of measures under Art. 40 of the Charter is to “prevent an aggravation of the situation”. While not expressly enumerated in the United Nations Charter, the types of measures that could be typically assumed as falling under the provision of Art. 40, and which are distinct from recommendations made under Ch. VI of the Charter, include a withdrawal of armed forces, a cessation of hostilities, a conclusion or observance of a ceasefire or a creation of the conditions necessary for unimpeded delivery of humanitarian assistance.

[61] “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”  United Nations Security Council <Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression | United Nations Security Council>.

[62] “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”  United Nations Security Council <Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression | United Nations Security Council>.

[63] For Additional Discussion of UN Counterterrorism Reforms and Human Rights, see James Cockayne, Alistair Millar, David Cortright, and Peter Romaniuk, Reshaping United Nations Counterterrorism Efforts, Center on Global Counterterrorism Cooperation, March 2012, <HERE > (accessed 25-5-2012), p. 7-9.

[64] United Nations Security Council, Resolution 1456 (2003), S/RES/1456 (2003), <HERE > (accessed 25-5-2012), Annexure, para. 6.

[65] Security Council Counter-Terrorism Committee Web Page, “Protecting Human Rights while Countering Terrorism,” <HERE  (accessed 12-6-2012). See also Rosand, et al, “The UN Security Council’s Counterterrorism Program,” HERE >, p. 16

[66] Rosand, et al, “The UN Security Council’s Counterterrorism Program,” <HERE >, p. 16.

[67] UN Security Council, Resolution 1963 (2010), S/RES/1963 (2010), <HERE > (accessed 25-5-2012), para 10.

[68] UN Security Council, Resolution 1963 (2010), S/RES/1963 (2010), <HERE > (accessed 25-5-2012), para 10. The Security Council was reaffirming language used in the UN Global Counter-Terrorism Strategy of 2006, A/RES/60/288, <HERE > (accessed 28-6-2012), Plan of Action, Pillars I and IV.

[69] In December 2009, for example, it passed a resolution creating an ombudsman to mediate requests from individuals, organisation’s, and companies to be delisted and mandated swift processing of their applications. However, the ombudsman does not have the authority even to make recommendations to the listing committee, a body consisting of State representatives that reaches decisions confidentially. In 2011 the Security Council split the sanctions list into two, one for Al-Qaeda and one for the Taliban, and modified the regimens for each; The court challenges also prompted the EU in 2009 to adopt procedural and due process reforms to the implementation of the UN 1267 blacklist regime. See Council of the European Union Regulation 1286/2009, <HERE> (accessed 12-6-2012). For a detailed analysis, see Sullivan and Hayes, BlacklistedHERE, pp. 57-61.

[70] Martin Scheinin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc. A/65/258 (2010), HERE  (accessed 25-5-2012), para 39.

[71] “Human rights/Counter terrorism: the new UN listing regimes for the Taliban and Al-Qaeda: Statement by the Special Rapporteur on Human Rights and Counter terrorism, Martin Scheinin,” UN Office of the High Commissioner for Human Rights news release, 29-6-2011, HERE  (accessed 25-5-2012)

[72] “International Human Rights Law”, 20-12-2019, US Citizenship and Immigration Services, Refugee, Asylum, and International Operations Directorate (Raio) <International_Human_Rights_Law_RAIO_Lesson_Plan.pdf (uscis.gov)>

[73] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (27-6-1987). <OHCHR | Convention against Torture>

[74] A “reciprocating territory” is defined in Explanation 1 to Section 44-A of India’s Civil Procedure Code as: “Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory.”

[75] (2011) 4 SCC 36.

[76] “Constitutional Space and Legislative Development in India on Extra-Territorial Operation of Law, Dr. Dharmendra Singh, ILI Law Review, Summer Issue 2018. <dks.pdf (ili.ac.in)>

[77] 1989 Supp (2) SCC 642.

[78] 1946 SCC OnLine PC 33.

[79] 1989 Supp (2) SCC 642.

[80] 1989 Supp (2) SCC 642.

[81] 1989 Supp (2) SCC 642

[82] (2011) 4 SCC 36.

[83] 1989 Supp (2) SCC 642.

[84] 1989 Supp (2) SCC 642.

[85] 1989 Supp (2) SCC 642.

[86] 1989 Supp (2) SCC 642.

[87] 1989 Supp (2) SCC 642.