rehabilitation

Case BriefsHigh Courts

Bombay High Court: While emphasizing the aspect of encroachment of public land, the Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., observed that,

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

Aggrieved by the public notice issued by respondent 1 – the Slum Rehabilitation Authority, petitioners were to be rehabilitated being affected by Pune Metro Rail Project.

Petitioners contended that under the State’s policy, being slum dwellers, they have a status of being protected occupiers, who would be required to be rehabilitated by allotment of a free of cost permanent alternate accommodation in case land below the slum is sought to be utilized for public purpose.

Further, the petitioners contend that the slum dwellers society had opposed the passing of the Pune Metro through the slum land, so did the developers. They also suggested realignment of the metro track, however, sans success.

High Court noted that the petitioners who had initially encroached on the Government land and remained on the same for some time to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed within the vicinity.

Bench opined that any encroachment on public land at the threshold ought not to be tolerated and prompt action is required to be taken to remove such encroachment, more particularly when those who are custodians of the public land are well aware that encroachments for long periods will clothe the encroachers with rights to seek rehabilitation at public costs under the prevalent Government policies.

Violation of Public Trust Doctrine

Government on account of negligent approach by not protecting public lands from encroachment is later required to acquire the same from private holdings, causing an unwarranted burden on the public exchequer and a sheer waste of taxpayers money.

Despite the might machinery, Government doesn’t protect its valuable land resulting into the grossest violation of public trust doctrine as a result of patent abuse of powers vested in such Government machinery is not protecting public property.

Accountability

Court added that it wonders as to whether at any point of time an audit in regard to encroached government land in State of Maharashtra was undertaken. As to how many such lands have vanished due to encroachment and whether any steps to preserve the same have been taken – these are certain questions to be answered to “we the people” and accountability fixed for negligence.

Bench hoped that the Government awakens on such issues before it is too late and restores all the encroached Government lands for public benefit.

The above would certainly require a genuine political will and consciousness towards larger public benefit.

Coming to the present matter, High Court expressed that,

Mere right of rehabilitation cannot be recognized to be equivalent to a right of ownership or as if it is some compensation being offered to the slum dwellers for their encroachment and occupation of Government land.

 In the present matter, the petitioners were not denied the benefit of rehabilitation, infact they were called upon by several notices for allotment of premises, but they took an unreasonable adamant stand and refused the benefit.

Opining that the present petition was not filed bonafide, Court stated that the petition appeared to be a patent abuse of process of law.

While imposing costs of Rs 5,000 the petition was dismissed. [Abdul Majid Vakil Ahmad Patvekari v. Slum Rehabilitation Authority, WP No. 3983 of 2021, decided on 31-08-2021]

Advocates before the Court:

Mr. Nikhil Wadikar i/b. Mr. Rajesh Katore for the petitioners.
Mr. Deepak R. More for respondent no. 1.
Mr. B.V. Samant, AGP for the State.
Mr. S.K. Mishra, Senior Advocate a/w. Mr. Pralhad D. Paranjape and Mr. Kaustubh Deogade for respondent nos. 4 and 5.

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Anil Choudhary (Judicial Member) and P. Anjani Kumar (Technical Member) allowed an appeal which was filed with the main issue of as to whether the service tax have been rightly demanded on the appellant who had constructed houses for rehabilitation of poor people under JNNURM.

The appellant was engaged in providing works contract services and was registered with the Department, in the month of February, 2014 the Department received some financial data from third party source wherein the name of the appellant appeared thereafter he was asked to submit documents for verification of discharge of service tax liability which submitted timely. He also submitted contract wise detail of all the contract works done during the last five financial years on the request of the Range Superintend.

It appeared to the Revenue that appellant had wrongly availed exemption in respect of Jawaharlal Nehru Urban Renewal Mission (JNNURM) during the Financial year 2009-10 to 2010-11 as the construction services provided under JNNURM were exempted vide Notification No. 28/2010–ST which came into force on 01 July, 2010. It further, appeared that appellant had wrongly claimed exemption in respect of construction works done for Krishi Utpadan Mandi Parishad (for short Mandi Parishad) during the financial year 2013-14 as under Serial No.12(a) of Notification No.25/2012-ST exemption is available for construction services provided to a government authority which is meant predominantly for use other than commercial/industrial. It further appeared that appellant had not discharged service tax on construction services provided to M/s Uncle Builders during the financial year 2009-10 & 2010-11.

The issues framed by the commissioner were:

  1. Whether the exemption from payment of Service Tax in respect of services provided by the notice to Agra Development Authority (in short ‘ADA’) under Jawaharlal Nehru Renewal Mission (in short ‘JNNURM’) for construction of houses for weaker section of society would be available for the period from 2009-10 to 2010-11(up to 30.06.2010) before issuance of Notification No. 28/2010-ST dated 22.06.2010 (w.e.f. 01.07.2018).
  2. Whether the exemption from payment of Service Tax in respect of services provided by the noticee to Rajya Krishi Utpadan Mandi Parishad (in short ‘Mandi Parishad’) during 2013-14, for construction work under Works Contract would be available, under Sl. No. 12(a) of Notification No. 25/2012-ST dated 20.06.2012.
  3. Taxability of services provided to M/s Uncle Builders during 2009-10 & 2010-11.
  4. Issue relating to demand of interest and penal action against Noticee.

 Counsel for the appellant assailed the findings of the Commissioner stated that for the advance amount received before July, 2010 for construction of residential houses under JNNURM & ‘Rajiv Awaas Yojana’, the work was done after July, 2010 and exempted as per Notification No. 30/2010 dated 28 June, 2010. Further, for the work relating to JNNURM have been executed for the Uttar Pradesh Government, which is providing shelter and home to the poor people at nominal rental basis and thus falls under the definition of construction for personal use of the Government or government authority.

As regards the second issue relating tax liability for construction for Mandi Parishad, Commissioner had observed that these Mandi Parishad were formed under the Act of State Legislature ‘Uttar Pradesh Krishi Utpadan Mandi Adhiniyam 1964’, but not for carrying out any municipal function which are provided under Article 243W of the Constitution of India. Counsel for the appellant urged that admittedly appellant had constructed toilets, roads, drainage, outer sewage, underground water storage tank reservoir, drinking water supply, S.T.P. (Sewage Treatment Plant)Labour shed etc. for the Mandi Samiti and it was a statutory body created under the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964. Thus as per Entry No.12 & 13 of Mega Exemption Notification No.25/2012, the appellant had rightly claimed exemption for providing construction services to the Statutory Authority, and the same was not commercial in nature as has been clarified by the Board vide Circular dated 18 December, 2006.

The Tribunal was of the view that various constructions works carried out for Mandi Parishad was not liable to service tax and were exempted in view of the Education Guide dated 20 June, 2012 by the Board, read with Circular No.89/7/2006 dated 18 December, 2006, read with the Mega Exemption Notification No.25/2012-ST. The Tribunal further added that as regards the third issue i.e. tax liability for work done for Uncle Builders (from 2009-10 to 2010-11), admittedly the appellant had paid tax on 04 June, 2006 along with interest before the issuance of SCN (issued on 31 March, 2016).

The Tribunal held that extended period of limitation is not available to Revenue in these facts and circumstances. Further, appellant have maintained books of account and filed regular returns. It further found that Revenue have erred in adopting Form 26AS for calculating tax liability, which is patently wrong, as Form 26AS is not a prescribed document in the service tax rules for ascertaining the gross turnover of the assessee. The appeal was allowed with consequential benefits.[Ganpati Mega Builders (INDIA) (P) Ltd. v. Commr., Customs, CE & ST, 2021 SCC OnLine CESTAT 1679, decided on 05-08-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates before the Tribunal:

Advocate for the Appellant: Ms Rinki Arora & Shri Aalok Arora

Authorized Representative for the Respondent: Shri Rajeev Ranjan

Op EdsOP. ED.

“Criminals do not die by the hands of the law. They die by the hands of other men.”[1]

In an around the period ranging from mid-sixteenth to late eighteenth century, a form of sanction was prescribed and practised in England, in the form of “branding”. This penalty, essentially, involved creating or etching of a permanent mark or a visible imprint on the body/skin of a convict by the use of hot metal, iron rods, etc.

As reported by Clive Emsley, Tim Hitchcock and Robert Shoemaker[2],

Convicts who successfully pleaded benefit of clergy, and those found guilty of manslaughter instead of murder, were branded on the thumb…. For a short time, between 1699 and January 1707, convicted thieves were branded on the cheek in order to increase the deterrent effect of the punishment, but this rendered convicts unemployable and in 1707 the practice reverted to branding on the thumb.  

This form of penalty was devised as means to, inter alia, identify controlled person(s), enhance deterrence, induce a fear of sanction amongst masses, etc. Fortunately, with the passage of time and with increased societal awareness, though, this heinous form of sanction eventually extinguished, however, the practice of stigmatising and labelling a criminal by other modes, regrettably, endures till date.

The Indian courts have, time and again, reiterated that the object behind the grant of penalty or sanctions is to, inter alia, protect the legitimate interest of the members of society. In fact, as per the Supreme Court[3]:

9…. Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers.

 It is, further, a settled law that it is a duty of every court to award proper sentence to a convict, having regard to the nature of the offence and the manner in which it was committed. In fact, while granting sanctions, law prescribes that the courts must be mindful of the fact that such penalties are adequate, just and proportionate with the gravity and nature of the crime. However, at the same time, the courts[4] have consistently cautioned that while awarding sanctions, “circumstances of the accused are also required to be kept in mind … as one of the objects of the criminal justice system is to rehabilitate the transgressors and the criminals”. Therefore, seen in this perspective, though, the motivating force behind grant of sanction primarily seems to be a mode of setting an example for the potential offender(s), however, while sanctioning a perpetrator of offence, the rights of rehabilitation and a possibility of acceptance of a convict, back into the society (on conclusion of such penalty) cannot be done away with. Accordingly, it is quite understandable as to why modern day penology emphasises on devising a fine balance between societal need and reintegration of a released convict. In the words of Elizabeth Fry, “Punishment is not for revenge, but to lessen crime and reform the criminal.”

Appreciating the need of rehabilitation of convicts, the United Kingdom’s Parliament, in the year 1974, enacted the Rehabilitation of Offenders Act, 1974 (“the Act”). The said Act, inter alia, aims to “rehabilitate offenders who have not been reconvicted of any serious offence for periods of years, to penalise the unauthorised disclosure of their previous convictions, to amend the law of defamation, and for purposes connected therewith”. The Act, essentially prescribes a specified “rehabilitation period[5]”, depending on the sentence passed, post which, an individual for the “purposes of this Act be treated as a rehabilitated person in respect of the first-mentioned conviction and that conviction shall for those purposes be treated as spent[6]”. Section 4 of the Act further, inter alia, provides that a person who has become a “rehabilitated person” in terms of the provisions thereof, “shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction”. In fact, this section specifically ensures that a rehabilitated person is not required to declare their “spent conviction or any circumstances ancillary to a spent conviction” when applying for most jobs or insurance, some educational courses and housing applications, entering into agreement/arrangements, etc.

 Section 9 of the Act, in fact, penalises unauthorised disclosure of spent convict. In particular sub-section (2) of Section 9 of Act provides:

9.(2) Subject to the provisions of any order made under sub-section (5) below, any person who, in the course of his official duties[7], has or at any time has had custody of or access to any official record or the information contained therein, shall be guilty of an offence if, knowing or having reasonable cause to suspect that any specified information[8] he has obtained in the course of those duties is specified information, he discloses it, otherwise than in the course of those duties, to another person.

Therefore, seen in the context and the purpose for which it was enacted, the Rehabilitation of Offenders Act, 1974 seems to be quite an effective device in wiping off the blemish of crime and assuring reintegration of a released convict. However, regrettably, a statute on similar lines is wanting in India.

Quite recently, the Supreme Court of Louisiana in State of Louisiana v. Tazin Ardell Hill (Parish of Lafayette)[9] dealt with the constitutionality of a statutory requirement that persons, “convicted of sex offences carry an identification card branded with the words ‘sex offender’.” In the said case, the Court, at the outset, noted that the said requirement to carry a branded identification card was unique to the State of Louisiana as, “Forty-one other States do not require any designation on the identification cards of sex-offenders.” The Court, in the said regard, while thoroughly considering the relevant legal provisions, by a majority of 2:1 held that the said requirement constituted, compelled speech and hence, did not survive “First Amendment[10] strict scrutiny analysis”. As per the Court[11]:

“The branded identification card is compelled speech. As a content-based regulation of speech, it must pass strict scrutiny. While the State certainly has a compelling interest in protecting the public and enabling law enforcement to identify a person as a sex offender, Louisiana has not adopted the least restrictive means of doing so. As Louisiana has not used the least restrictive means of advancing its otherwise compelling interest, the branded identification card requirement is unconstitutional….”

Understandably, this judgment is illustrative of the judicial approach, balancing the right of a convict with that of the State.

Indian courts have time and again, reiterated the importance of assuring basic human rights to even convicts and prisoners. In fact, the Supreme Court[12] has determinedly resolved:

“22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution.”

 At the same time, the Court, acknowledging the reformative approach in criminology in the context of grant of parole, in Asfaq v. State of Rajasthan[13] observed:

“17. … The theory of criminology, which is largely accepted, underlines that the main objectives which a State intends to achieve by punishing the culprit are: deterrence, prevention, retribution and reformation. When we recognise reformation as one of the objectives, it provides justification for letting of even the life convicts for short periods, on parole, in order to afford opportunities to such convicts not only to solve their personal and family problems but also to maintain their links with the society. Another objective which this theory underlines is that even such convicts have right to breathe fresh air, albeit for (sic short) periods. These gestures on the part of the State, along with other measures, go a long way for redemption and rehabilitation of such prisoners. They are ultimately aimed for the good of the society and, therefore, are in public interest.”

Clearly, seen in this context, the provisions of the Probation of Offenders Act, 1958[14], which are aimed[15] to, inter alia, ensure that a convict is not completely deprived of societal ties/bonds and they do not transform into a hardened criminal, are a nascent development in the field of convict reintegration. Appositely even under the Code of Criminal Procedure, 1973, provisions under Section 432 of the said Code confer a power on appropriate Government[16] to, “suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced”, in the manner as may be prescribed. Clearly, these provision, though, aim to provide a temporary respite, however, are not intended to completely extinguish the stain of past conviction on released convicts.

In the case of juvenile offenders, the Indian courts have unfailingly professed towards a compassionate and reformative approach; including at the stage of grant of sanction. In fact, the Supreme Court in Hiralal Mallick v. State of Bihar[17] had, with extreme vehemence, professed on the individualisation of criminality and court’s power to issue suitable directives, consistent with law, to suit a particular accused. The Court, terming the act of attribution of an adult intent, automatically, to infant as an ‘adult error’, observed,

“6. … When a teenager, tensed by his elders or provoked by the stone hit on the head of his father, avenges with dangerous sticks or swords, copying his brothers, we cannot altogether ignore his impaired understanding, his tender age and blinding environs and motivations causatory of his crime.”[18]

Pertinently, appreciating the special needs/requirements/circumstances governing the juveniles in conflict with law, the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the JJ Act”) prescribes specific provisions regarding the rehabilitation and reintegration[19], adoption[20], etc., of juvenile(s). Under the JJ Act, Section 39[21] provides for the process of rehabilitation and social reintegration of children under the said Act, inter alia, “based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care”. Sections 43[22] and 44[23] of the JJ Act provide for open shelter and foster care, respectively, besides sponsorship by the State Government under Section 45 of the said Act[24]. Significantly, the JJ Act further makes provisions regarding inter-country adoption of an orphan or abandoned or surrendered child and inter-country relative adoption under Sections 59[25] and 60[26], respectively, thereof. Regrettably, a comprehensive legislation, which deals with the mechanism/procedure for the rehabilitation and reintegration of adult convicts, in still wanting in India.

Mr Nelson Mandela once remarked, “When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.” Undoubtedly, there is no straitjacket formula that is applicable to all the persons who find themselves at the wrong side of law. Therefore, there cannot be a single and unified mechanism of reprimand for all convicts. At any case, sanctions cannot be extended to such degrees, which deprive individuals of their basic human rights. It is quite understandable that where the sanctions prescribed under law, leave no avenue for a convict to reintegrate into a society and leaves him with a permanent blemish, there is a greater probability of recurrence of crime. Therefore, the State must attempt to ensure that even the released convicts are provided sufficient and reasonable avenues to start afresh and are not pushed into gallows of darkness based on their past deeds. It must be duly taken cognizance of the fact that branding of a convict based on his past action, which may have been motivated on a momentary impulse, is quite an unfair, unreasonable and archaic approach, especially in a country which prides itself as a welfare State. As aforementioned, countries like United Kingdom and the United States of America have made provisions which provide an assurance for a fresh start by convict, wiping of the past deeds and providing a fresh slate to released convicts. Accordingly, India too may consider introducing similar provisions, over and above the existing mechanisms of parole, remission, etc.

As someone[27] once rightly remarked, “ … bars can’t build better men and misery can only break what goodness remains.” Therefore, the endeavour of every welfare State must be to make attempts to eschew any form of penalties, which brand individuals/convicts permanently and beyond all possibilities of repair. The State must further endeavour to eradicate prejudices of past conviction and to provide avenues for rehabilitation to released convicts. At the same time, it is for the society to dissuade from labelling and classifying convicts/released convicts by their preceding deeds.

* Advocate, Supreme Court and High Court(s).

[1] George Bernard Shaw.

[2] Crime and Justice – Punishment Sentences at the Old Bailey, Old Bailey Proceedings Online. (<www.oldbaileyonline.org,> version 7.0, last accessed on 8-03-2021).

[3] Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, 385.

[4] Refer to Wali Ahmed v. State of Maharashtra, 2018 SCC OnLine Bom 979, para 15.

[5] Section 5 of the Rehabilitation of Offenders Act, 1974.

[6] Section 1 of the Rehabilitation of Offenders Act, 1974.

[7]“official record” means a record kept for the purposes of its functions by any court, police force, government department, local or other public authority in Great Britain, or a record kept in Great Britain or elsewhere, for the purposes of any of Her Majesty’s forces, being in either case a record containing information about persons convicted of offences – Section 9(1) of the Rehabilitation of Offenders Act, 1974.

[8] “specified information” means information imputing that a named or otherwise identifiable rehabilitated living person/living protected person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which is the subject of a spent conviction. — Section 9(1) of the Rehabilitation of Offenders Act, 1974.

[9] 2020-KA-00323, dated 20-10-2020 (Supreme Court of Louisiana).

[10] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

[11] Majority decision rendered by Genovese, J. and Weimer, J. Dissenting opinion rendered by Craine, J.

[12] State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712, 723.

[13] (2017) 15 SCC 55, 62.

[14] Probation of Offenders Act, 1958.

[15] The Supreme Court in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1  has observed:

  1. This Court in Rattan Lal v. State of Punjab, (1964) 7 SCR 676,  has observed to the effect that the Probation of Offenders Act, was enacted with a view to provide for the release of offenders of certain categories on probation or alter due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of offenders into obdurate criminals as a result of their association with hardened criminals. The above object is in consonance with the present trend in the field of penology, according to which, efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Although, not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of offenders not guilty of serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that offenders should not be sent to jail, except in certain circumstances.

[16] Section 432 of the Code of Criminal Procedure, 1973 –

 432.(7) In this section and in Section 433, the expression “appropriate Government” means,—

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

[17] (1977) 4 SCC 44.

[18] Id., 46.

[19] Ch. VII of the Juvenile Justice (Care and Protection of Children) Act, 2015.

[20] Ch. VIII of the Juvenile Justice (Care and Protection of Children) Act, 2015.

[21] Read in conjunction with the provisions of Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which deals with the rehabilitation and reintegration services in institutions registered under the said Act and management thereof.

[22] Section 43, JJ Act.

[23] Section 44, JJ Act.

[24] Section 45, JJ Act.

[25] Section 59, JJ Act.

[26] Section 60, JJ Act.

[27] Stuart Turton.

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Joymalya Bagchi and Suvra Ghosh, JJ., has recently observed in a case of rape and murder of a teenager aged just 13 years, that death penalty must only be invoked as a last resort when it is clear that there is no scope for the rehabilitation of a convict. The judges commented that one must not lose sight of the fact that the imposition of the death penalty is the last resort which the Court must do unwillingly and with a very heavy heart. It ought not to be awarded in cases where the glimmer of hope and rehabilitation is not completely lost. If upon balancing the aggravating and mitigating circumstances, if there seems to be even a tiny glimmer of possibility to salvage the soul of a condemned convict then every effort should be made towards that end.

The Court emphasised that concern for human dignity and life must underscore the jurisprudence on the death penalty. The Bench further added that even if a convict appears to lack sensitivity, a higher standard is expected in response, given the constitutional scheme of things. On an examination of aggravating and mitigating factors, the Court held, that there was potential for the rehabilitation of the convict, and commuted the death penalty to rigorous life imprisonment. The Court took into consideration the Correctional Home report which recommended that the convict had good and sociable conduct and his inmates described him as a supportive person. [State of West Bengal v. Albert Toppo, DR 4 of  2017, decided on 10-12-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. while hearing a writ petition concerning the health hazards being faced by the residents of Mahul and Amabapada, the bench held that,

“No family required to be rehabilitated as a consequence of slum clearance would be shifted to the PAP (Project affected Persons) colonies in Mahul or Ambapada and those who have been rehabilitated at the said two colonies under the slum rehabilitation schemes would be offered accommodation elsewhere”

Facts to be noted

Mahul and Amabapada are home to only a few local fishing communities and thick mangrove forests. State-owned refineries were established in the 1950s at Mahul with a view to gainfully make use of these lands with a negligible population.

Nine major industrial units exist at Mahul including refineries of Hindustan Petroleum Corporation Limited (HPCL), Bharat Petroleum Corporation Limited (BPCL), Rashtriya Chemicals and Fertilizers Limited, Bhabha Atomic Research Centre (BARC) as well as private industrial units such as Tata Power Thermal Power Plant, Sealord Containers and Aegis Logistics.

Petitioner challenged allotment of tenements reserved for Project Affected Persons (PAP) to them in a PAP colony by the name of Eversmile Layout, developed by a private builder named Dynamix reality in Mahul, Chembur. Present petitioners were declared to be PAPs due to the Tansa Pipeline Project which resulted in dwelling unit/slum located within 10 meters of Tansa Pipeline in Mumbai being demolished.

The land on which Eversmile colony is located was originally demarcated to be a No-Development Zone in the Draft Development Plan of 1984. State Government had acquired all such lands on account of being surplus. Further, it was said to be exempt under Section 20 of the Urban Land Ceiling Act, 1976 by State Government for the purpose of constructing residential quarters for the staff of BPCL.

Though in respect to the above, BPCL chose not to construct its staff quarters on the site where the PAP colony presently lies, eventually resulting in State Government modifying its order of exemption under Section 20 of Urban Land Ceiling Act to be for the rehabilitation of Slum dwellers and PAPs, at the request of Slum Rehabilitation Department and developer of PAP colony.

Supreme Court and this Court have passed orders, at the behest of refineries of the region, estopping the development of private residential buildings in the industrial belt.

Eversmile Colony posits three issues that render the Colony uninhabitable

  • Proximity of the refineries to PAP colony has resulted in those petitioners who have been rehabilitated to the colony to suffer from severe health issues due to their exposure to high levels of carcinogenic air pollution
  • Presence of residential premises in such close proximity poses a threat to the security of the industries and refineries, as well as to the safety of the residents themselves.
  • PAP colony is bereft of hygienic conditions and basic amenities, including schools and medical centres.

In Charudatt Pandurang Koli v. Sea Lord, OA No. 40 of 2014, it was held that,

National Green Tribunal held that there is a perceptible threat to the health of the residents of villages Mahul and Ambapada due to prevailing air quality in the area. Sealord Containers along with BPCL and HPCL refineries were identified by the National Green Tribunal to be the primary pollutants in Mahul, Chembur.

NGT observed that the respiratory morbidity and study of the health of the residents of Mahul region done by KEM hospital shows that a majority of the residents showed acute syndrome of breathing difficulties, severe lung-related issues, dry coughs, eye and skin irritation, chronic fatigue and weakness.

Presence of VOCs (Volatile Organic Compounds)

Further, it is evident from the above judgment that the presence of VOCs (Volatile Organic Compounds) in Mahul is what makes the air pollution in the region particularly harmful for human health.

Supreme Court had also held that the judgment of the NGT attained finality and therefore is beyond the purview of being challenged in judicial proceedings, also on perusal of the reports of Maharashtra Pollution Control Board (MPCB), Central Pollution Control Board (CPCB) and NEERI shows that air pollution in Mahul continues to be disturbingly high and to this day, still poses a threat to human life.

On analysing the data of the report by NEERI submitted during the NGT proceedings also recorded the alarming levels of air pollution in Mahul.  The said report also recorded the known impacts of VOCs on the health of individuals and notes that VOCs are known carcinogens and also records the symptoms and diseases afflicting people to exposed VOCs.

Thus, as per the reports of the various environmental agencies of the government, it is an admitted position that air pollution in Mahul, specifically in terms of the presence of VOCs is far higher than the permissible standards.

Report prepared by the IIT Bombay Experts

The report shows that the above-discussed health hazard is still present amongst the residents of Mahul. IIT recorded the prevalence of serious diseases such, as inter alia tuberculosis and cancer amongst the PAPs residing in Mahul.

Important observation

On observing the detailed report of IIT it looked self explanatory portraying an irrefutable picture of the fate of those persons being compelled to live in Mahul against their will, not merely in terms of their health, but also the domino effect of their poor health on their ability to live a dignified life as self sufficient, productive members of society.

By relying on the Supreme Court case of Oswal Agro Mills Ltd. v. Hindustan Petroleum Corporation Ltd., it was observed that residential premises in the vicinity of such refineries can pose multi-faceted security risks. The risks were not just limited to the health of the residents, but a terrorist attack using these refineries as targets could lead to colossal destruction within the city.

In respect to the security concerns, State Government and Municipal Corporation had planned to allot 2000 police officers and constable’s homes in the Eversmile Complex. However, to this day not a single police officer has been ready to accept the homes allotted to them in Eversmile Complex due to the fact that they share the same concerns about safety and the exposure to the air pollution in the region.

Hence, it is apparent from the above state observations and the reports of MPCB, CPCB, NEERI and IIT that Mahul continues to be a dangerously polluted region.

According to the recommendations made by the IIT report, along with this Court orders, PAPs residing in Mahul will have to be shifted out of the colony, and further allotments of tenements in the Eversmile Colony should not be made to PAPs and slum dwellers.

High Court also stated that it is settled law that the International Covenant on Economy Social and Cultural Rights is binding upon the Government of India, as it is a multi-party treaty, ratified by India in 1976. Consequently, the obligations under the said covenant are enforceable in India.

In above terms, WP No. 14102 of 2018 is disposed of by declaring that NGT does not freeze the issue at the point of time when the judgment was passed and this would mean that air quality needed to be monitored constantly and if no improvement was found, suitable directions need to be issued keeping in view the prevalent air condition monitored over a period of 4 years.

In regard to WP (L) No. 874 of 2018 and WP (L) No. 3314 of 2017, no family to be rehabilitated to Mahul or Ambapada and the ones who are already accommodated at the said places should be offered some other accommodation and until then to be paid Rs 15,000 per month as rent along with security deposit of Rs 45,000.

The court directed compliance of order within a period of 12 weeks. [State of Maharashtra v. Charudutta Pandurang Koli, 2019 SCC OnLine Bom 1993, decided on 23-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission has taken a suo-moto cognizance of media reports that an 18-year-old survivor from the Muzaffarpur girls’ shelter where many inmates had been abused for years, was allegedly gang-raped in a moving car on Friday night, less than 14 months after being rehabilitated and reunited with her family on the orders of a local court. The Commission has observed that the contents of the news reports, if true, amounts to a violation of human rights of the girl who fell prey to perverts with criminal instincts, twice and the police is yet to arrest the accused.

Accordingly, the Commission has issued notices to Chief Secretary and DGP, Bihar calling for a detailed report in the matter within four weeks along with the status of the FIR registered by the police. And it has also directed to the state authorities to provide the victim, proper counseling and medical assistance to help her overcome the trauma and lead a normal life.

The Commission has further observed that apparently, the girl has become a victim of State’s apathy. She was unfortunately amongst the victims of sexual abuse at Muzaffarpur Girls Home, about five years back. The victimization of the girl twice indicates sheer lawlessness in the State of Bihar. The criminals are committing heinous crimes at their free will, without any fear of law. After the infamous incident of sexual abuse of the inmates, which occurred in Muzaffarpur district of Bihar and jolted the nation, the state machinery and the law enforcing agencies should have been more vigilant so that no anti-social elements could gather the courage to commit an offence harming the dignity of a woman.

According to the news reports, carried today on 16-09-2019, the girl lodged a complaint with Bettiah town police station in Bihar’s West Champaran district on Saturday, saying that she was abducted in a car after being way laid on her way to a relative’s house and was gang-raped.

Reportedly, after committing the heinous crime the accused dropped the victim near her house but the girl being so frightened didn’t report the incident to anyone. She reported the matter to the police the next day and an FIR against four accused (whose names have been mentioned by the victim) has been registered. Two of the accused are reportedly brothers and none of the accused has been arrested so far. The SHO of the Bettiah Police Station has reportedly stated that they are awaiting the medical report of the victim.

It is mentioned in the news report that the Assistant Director of the Bettiah Child Protection Unit has also met the girl at the hospital. She has stated that the victim girl has been living with her family since July last year and was starting to reclaim her life when this tragic incident has happened.

National Human Rights Commission

[Press Release dt. 16-09-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of B.P. Dharmadhikari and Prakash D. Naik, JJ. allowed an appeal by a convict who was convicted for murder and voluntary throwing acid by a trial court under Sections 302 and 326-B of Penal Code, 1860 (herein ‘IPC’), and commuted his death sentence holding that the possibility of reformation, rehabilitation and social reintegration of young age convicts into society could not be neglected.

The victim was selected as Nursing Officer in Military Nursing Services and was supposed to join Naval office at Colaba, Mumbai. The accused-appellant, who had proposed to the victim, was rebuffed by her; and thus he threw sulphuric acid on her at Bandra railway station and fled from there. The victim succumbed to her injuries. A Special Women’s Court convicted the appellant for the offence of murder and sentenced him to death.  Appellant was also convicted for the offence of voluntary throwing acid and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs 5,000, in default to suffer rigorous imprisonment for six months. This was the first such case where an accused convicted for the acid attack was given the death penalty. Accused-appellant filed an appeal against this order.

The counsels for the appellant, Trideep Pais, Vijay Hiremath, Anshu Raj Singh and Sanya Kumar, argued that the evidence of eyewitnesses was not consistent with each other. The counsels also asserted that the incident occurred in few seconds as stated by the witnesses who saw the appellant momentarily raising doubt about their ability to identify as the identification test was conducted after eight months from the date of the alleged incident. The prosecution claimed that CCTV footage was collected but the same was not relied upon or exhibited on the ground that footage was not clear. However, nothing was put on record to prove that CCTV footage was unclear. CCTV footage was not sent to Forensic Science laboratory (herein ‘FSL’) nor played in the Court. He also argued that the alibi of the appellant was not considered. The benefit of doubt ought to have been given to the appellant as no evidence was established to show the presence of the appellant on the train boarded by the victim. Moreover, assuming that charges of murder were proved, the trial court should not have awarded the capital punishment as the case cannot be termed as rarest of rare case. Therefore, he asserted that sentencing exercise undertaken by the trial court was improper and against the mandate. Further arguing against the death sentence, it was contended that the appellant had no intention of murdering victim but only wanted to injure her.

Learned Special Public Prosecutor A.M. Chimalkar, with Siddharth Jagushte and Tusshar Nirbhavne submitted that the prosecution had established the charges under Sections 302 and 326-B of IPC beyond all reasonable doubt. There was sufficient evidence to prove the guilt of the appellant. The trial court had analyzed the evidence in detail and had given findings of involvement of the appellant in the crime. The eyewitnesses gave an ocular account of the incident and there was no doubt to discard their evidence. The appellant was identified by the witnesses. Furthermore, he argued that the medical evidence supported the case of the prosecution. Learned Special Public Prosecutor submitted that the trial court was right to award death penalty. According to him, the evidence adduced indicate aggravating circumstances justifying no other punishment except the death penalty. The crime was brutal. The trial court examined the reasons for awarding death to the appellant and gave strong reasons for convicting the appellant and interference in the decision was not warranted.

The Court observed that prosecution had established its case beyond reasonable doubt and there was nothing to doubt the authenticity of the evidence and the witnesses examined. Reliance was laid upon S.K. Hasan v. State of Maharashtra, 2003 SCC OnLine Bom 1167 to state that when the appellant had taken a specific plea of alibi, the burden was on him to establish the same. The appellant had not led any evidence to substantiate his plea of alibi. So in the absence of establishing the plea of alibi for cogent evidence, a necessary consequence of adverse inference had to be drawn. The documentary evidence adduced by the prosecution formed a significant part of the case and proved his involvement in the crime.

However, it was opined that the age of the appellant was 23 years at the time of the commission of a crime and that there was a possibility to reform. The Court took note of the ruling in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 to hold that a death sentence can be awarded only in the rarest of rare cases, only if an alternative option was unquestionably foreclosed and only after full consideration of all factors keeping in mind that a sentence of death was irrevocable and irretrievable upon execution. The Court remarked, “It should always be remembered that while the crime is important, the criminal is equally important insofar as the sentencing process is concerned.” It took into consideration the material on record including overall personality, subsequent events to commute the sentence of death awarded to the appellant and directed that he should not be released from custody for rest of his normal life. Furthermore, the Court held that trial court relied on collective conscience to hold that the appellant deserved death penalty but ignored the fact that the appellant was of young age at the time of commission of offence and there was nothing to indicate that the appellant was beyond reformation and rehabilitation, as mandated in the case of Bachan Singh. Although the conviction of the appellant was confirmed, the death sentence was commuted to imprisonment for life. Hence, the appeal was partly allowed.[State of Maharashtra v. Ankur Narayanlal Panwar, 2019 SCC OnLine Bom 968, decided on 12-06-2019]

Case BriefsSupreme Court

“While the crime is important, the criminal is equally important insofar as the sentencing process is concerned.”

-Madan B. Lokur, J.

Supreme Court: A Bench comprising of Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ. commuted the death sentence awarded to the review petitioner to life imprisonment. The petitioner was convicted under Sections 376(2)(f), 377 and 302 IPC for rape and murder of a 3- year old girl. He was awarded death sentence by the trial court which was confirmed by Bombay High Court. Aggrieved thereby, he preferred an appeal before the Supreme Court which was dismissed. Now, the petitioner was before the Court for review of its judgment dismissing his appeal.

The Court was concerned with the order of death sentence awarded to the petitioner and focused its discussion on certain points including:

Circumstantial evidence

According to the petitioner, the case was based on circumstantial evidence. The Court held, “ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule.”

Reform, rehabilitation and re-integration into society

Harking back to Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Court held that “Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility… it is the obligation on the prosecution to prove to the court, through evidence, that the possibility is that the convict cannot be reformed or rehabilitated.”

DNA evidence

The Court laid stress on the usefulness of the advanced scientific technology and advised the prosecution to take advantage of it in such cases as the present one and stated, “where DNA profiling has not been done or it is held back from the Trial Court, an adverse consequence would follow for the prosecution.”

Prior history of the convict or criminal antecedents

After considering various earlier decisions, the Court held that mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding sentence.

In the instant case, the Court was of the opinion that the prosecution was remiss in not producing the available DNA evidence which lead to an adverse presumption against the prosecution. The trial court was in error in taking into consideration, for the purposes of sentencing, the pendency of two similar cases against the petitioner. Looking at the crimes committed by the appellant and the material on record including his overall personality and subsequent events, the Court commuted the sentence of death awarded by the petitioner while directing that he should not be released from custody for the rest of his normal life. the review petition was disposed of accordingly. [Rajendra Pralhadrao Wasnik v. State of Maharashtra,2018 SCC OnLine SC 2799, decided on 12-12-2018]

Case BriefsForeign Courts

High Court of South Africa, Kwazulu-Natal Division: This appeal was filed before a 3-Judge Bench comprising of Henriques, Lopes, and D Pillay, JJ., where the sentences passed against accused charged with murder was in question.

The facts of the case were that appellant was alleged for murder and other offences and as consequence of the same he was punished for 30 years, 30 years and 10 years for different counts. The sentences imposed for first and last count were ordered to run concurrently. This means that the accused was to be sentenced for 60 years of imprisonment. Appellant contended that the trial court did not consider his age while sentencing him which was 23 years and that court committed misdirection in not declaring all the sentences were to be run concurrently. It was to be noted that the offences he was charged under were in proximity of time with common intent. Respondent made a submission that a sentence of life imprisonment was appropriate in respect to offence of murder. Respondent justified the punishment by bringing it to the notice of court appellant’s previous conviction and the particularly vicious and brutal circumstances under which the present offences were committed.

High Court was of the view that 60 years of punishment was a “Methuselah” sentences and was contrary to the objective of sentencing i.e. rehabilitation. Therefore, according to the circumstances of the offence and personal circumstances of the accused, the appellant was sentenced to 30 years of imprisonment. [Dazi v. State, Case No. AR708 of 16, dated 10-08-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of S.C. Dharmadhikari and B.P. Colabawalla, JJ. dismissed an appeal filed under Section 260-A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal wherein it was held that Section 194-LA was not applicable in case at hand.

The facts of the case were that the assessee Development Authority had acquired land from hutment dwellers and paid compensation for rehabilitation. The Assessing Officer passed an order under Sections 201(1) and 201(1-A). He was of firm opinion that there had been acquisition of immovable property and the assessee, while compensating the hutment dwellers, was liable to deduct tax at source (TDS) as per the provisions of Sections 194-L and 194-LA. The assessees carried the matter in appeal before the Commissioner of Income Tax (Appeals) who held that the said sections were not applicable in the instant case. The decision was affirmed by ITAT. Aggrieved thus, the Revenue had filed the instant appeal.

The High Court perused the record and found that the order impugned did not require any interfere. The Court was of the view that the subject land always vested in the State. The hutment dwellers were encroaching squatters who had built illegal hutments on State land, they were trespassers. This being the case, there was no question of land being acquired by the assessee. It was an encroachment which was removed by the assessee and the encroachers were rehabilitated. This being the case, the Court was of the view that Sections 194-L or 194-LA had no application to the facts and circumstances of the case. The appeal was accordingly dismissed. [CIT v. Mumbai Metropolitan Regional Development Authority,2018 SCC OnLine Bom 2374, dated 06-09-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B.Lokur and Deepak Gupta, JJ, addressed the matter in regard to the rehabilitation plan of mule owners on the track between Katra and Shri Mata Vaishno Devi Ji Shrine which was prepared 10 months back, but no action has yet been taken.

The rehabilitation plan being referred to was prepared in October 2017 by the State of J&K in consultation with the Shri Mata Vaishno Devi Shrine Board along with other stakeholders. The issue in the said matter was that, no finalization being done after 10 months of the plan being on the table.

ASG appeared on behalf of the State of Jammu and Kashmir and stated that a State Advisory Council would be constituted and the plan would be considered in totality and a decision will be taken within a period of 3 weeks.

The matter is further listed for 30-08-2018. [Shri Mata Vaishno Devi Shrine Board v. Gauri Maulekhi,2018 SCC OnLine SC 777, order dated 02-08-2018]

Cabinet DecisionsLegislation Updates

The Union Cabinet has approved the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 for introduction in Parliament. The Bill broadly has the following features:
  1. Addresses the issue of trafficking from the point of view of prevention, rescue and rehabilitation.
  2. Aggravated forms of trafficking, which includes traffickingtrafficking for the purpose of forced labour, begging, trafficking by administering chemical substance or hormones on a personfor the purpose of early sexual maturity, trafficking of a woman or child for the purpose of marriage or under the pretext of marriage or after marriage etc.
  3. Punishment for promoting or facilitating trafficking of person which includesproducing, printing, issuing or distributing unissued, tampered or fake certificates, registration or stickers as proof of compliance with Government requirements; orcommits fraud for procuring or facilitating the acquisition of clearances and necessary documents from Government agencies.
  4. The confidentiality of victims/witnesses and complainants by not disclosing their identity. Further the confidentiality of the victims is maintained by recording their statement through video conferencing (this also helps in trans-border and inter-State crimes).
  5. Time bound trial and repatriation of the victims – within a period of one year from taking into cognizance.
  6. Immediate protection of rescued victims and their rehabilitation. The Victims are entitled to interim relief immediately within 30 days to address their physical, mental trauma etc. and further appropriate relief within 60 days from the date of filing of charge sheet.
  7. Rehabilitation of the victim which is not contingent upon criminal proceedings being initiated against the accused or the outcome thereof.
  8. Rehabilitation Fund created for the first time. To be used for the physical, psychological and social well-being of the victim including education, skill development, health care/psychological support, legal aid, safe accommodation,etc.
  9. Designated courts in each district for the speedy trial of the cases.
  10. The Bill creates dedicated institutional mechanisms at District, State and CentralLevel. These will be responsible for prevention, protection, investigation and rehabilitation work related to trafficking.  National Investigation Agency (NIA) will perform the tasks of Anti-Trafficking Bureau at the national level present under the MHA.
  11. Punishment ranges from rigorous minimum 10 years to life and fine not less than Rs. 1 lakh.
  12. In order to break the organized nexus, both at the national and international level, the Bill provides for the attachment and forfeiture of property and also theproceeds for crime.
  13. The Bill comprehensively addresses the transnational nature of the crime. The National Anti-Trafficking Bureau will perform the functions of international coordination with authorities in foreign countries and international organizations; international assistance in investigation; facilitate inter-State and trans-border transfer of evidence and materials, witnesses and others for expeditingprosecution; facilitate inter-state and international video conferencing in judicial proceedings etc.

Background

Trafficking in human beings is the third largest organised crime violating basic human rights. There is no specific law so far to deal with this crime. Accordingly, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018 has been prepared. The Bill addresses one of the most pervasive yet invisible crimes affecting the most vulnerable persons especially women and children.

The new law will make India a leader among South Asian countries to combat trafficking. Trafficking is a global concern also affecting a number of South Asian nations. Amongst them, India is now a pioneer in formulating a comprehensive legislation. UNODC and SAARC nations are looking forward to India to take lead by enacting this law.

The Bill has been prepared in consultation with line Ministries, Departments, State Governments, NGOs and domain experts. A large number of suggestions received by the Ministry of WCD in hundreds of petitions have been incorporated in the Bill.  The Draft Bill discussed in regional consultations held in Delhi, Kolkata, Chennai and Bombay with various stakeholders including over 60 NGOs. The Bill was examined and discussed by Group of Ministers also.

Cabinet

Supreme Court

Supreme Court: Considering the massive floods in Kashmir Valley which have created horror by affecting more than 400 villages with five lakh people still stranded, the petition was filed seeking immediate rescue, relief and rehabilitation of the affected persons. Colin Gonsalves placed a note before the 3-judge bench of R.M. Lodha, CJ and Kurian Joseph and R.F. Nariman, JJ stating that there is immediate requirement of large number of helicopters, doctors, medicines, food including pediatric food, baby articles, blankets, life jackets, drinking water, sanitary pads, tents, warm clothes and footwear, fuel and other essential supplies and that the Union of India should declare the situation in Kashmir valley a natural calamity and a national disaster, thereby, asking all the States and Union Territories to join hands in providing the aforementioned requirements. The petitioner, however, acknowledged the commendable work being done by the Armed Forces in rescue operations.

The Court, taking into account the submission by the Attorney General Mukul Rohatgi that the Union Government was already overseeing and coordinating the rescue and relief operations, asked the Union Government to consider the suggestions made by the petitioner apart from considering to form a Unified Agency for proper co-ordination of rescue, relief and rehabilitation operations. Vasundhara Pathak Masoodi v. Union of India, Writ Petition(s)(Civil) No(s). 826/2014, decided on 12.09.2014

To read the full order, click here