Case BriefsSupreme Court (Constitution Benches)

Supreme Court: A five-judge Constitution bench of the Supreme Court today dismissed the curative petition filed by Pawan Kumar Gupta, a death row convict in the Nirbhaya gangrape and murder case.

“The application for an oral hearing is rejected. The application for stay of execution of the death sentence is also rejected. The Curative Petition is dismissed in terms of the signed order,”

The five-judge Constitution bench of NV Ramana, Arun Mishra, RF Nariman, R Banumathi and Ashok Bhushan, JJ held,

“In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Hence, the Curative Petition is dismissed.”

Gupta had on Friday filed a curative petition before the Supreme court seeking the commutation of his death sentence to life imprisonment. He is the fourth convict in the case to file a curative petition.The Supreme Court has already rejected the curative petitions of the remaining three.

This comes as a lower court issued a fresh death warrant  for the four convicts — Vinay Sharma, Akshay Thakur, Pawan Gupta and Mukesh Singh, which orders their hanging at 6 am on March 3 at Delhi’s Tihar Jail. Meanwhile, the Supreme Court has also slated for March 5 hearing on a petition, filed by the Union Ministry of Home Affairs, seeking directions to execute the death row convicts in the Nirbhaya gangrape and murder case separately.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

[Pawan Kumar Gupta v. State of NCT of Delhi, 2020 SCC OnLine SC 264, decided on 02.03.2020]

(With inputs from ANI)

Hot Off The PressNews

Supreme Court: The 3-judge bench  of R Banumathi, Ashok Bhushan and Navin Sinha, JJ has said that it will hear on March 5, a petition, filed by the Union Ministry of Home Affairs, seeking directions to execute the death row convicts in the Nirbhaya gangrape and murder case separately. It is pertinent to note that a fresh death warrant has been issued for the four death row convicts, Vinay Sharma, Akshay Thakur, Pawan Gupta, and Mukesh Singh, in the case for their hanging at 6 am on March 3.

Additional Solicitor General KM Natraj, appearing for the Union of India today, submitted to the apex court that the Delhi High Court had given a week’s time to execute the death warrants. The Centre had moved the top court after the Delhi High Court had rejected its petition.

The Delhi High Court had, on February 5, stated that the death warrant of all convicts in the Nirbhaya case should be executed together. The Delhi High Court had observed that Delhi prison rules do not state whether when the mercy petition of one convict is pending, the execution of the other convicts can take place and from the trial court to
Supreme Courtall convicts have been held by a common order and a common judgment.

Meanwhile, a Delhi court on Saturday dismissed an application filed by Vinay Sharma, one of the four death row convicts in Nirbhaya case, seeking specialised medical treatment for his claimed “grievous head injury, fracture in his right arm, insanity, mental illness and schizophrenia”.

Four people, Mukesh Kumar Singh , Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh, are facing execution in the infamous Nirbhaya gang-rape and murder case.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: A 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ has dismissed the plea seeking review of the order of the President of India rejecting the mercy petition of Vinay Kumar Sharma, one of the convicts in the Nirbhaya gang-rape case. It said,

“The note put up before the President of India is a detailed one and all the relevant materials were placed before the President and upon consideration of same, the mercy petition was rejected.”

Here is a gist of the grounds raised by the petitioner and the Court’s response to the said grounds:

Non-furnishing of relevant materials under RTI Act

Stating that since this Court has examined the file as indicated above, the petitioner cannot make grievance that because of the non-furnishing of the copy of the documents, prejudice is caused to them, the Court said that in any event,

“the issue with regard to the nature of documents required not being provided under the Right to Information Act would not arise, keeping in view the definite parameters under which the petition of the present nature is required to be considered.”

Lieutenant Governor, Delhi and Home Minister, Govt. of NCT of Delhi did not sign the relevant file

Upon perusal of the file relating to the mercy petition of the petitioner, it is seen that the Minister (Home), NCT of Delhi and Lieutenant Governor, Delhi has perused the relevant file and have signed the note to reject the mercy petition.”

Non-placing of relevant materials before the President of India and the relevant materials were kept out of consideration

By perusing the note put up before the President of India, we have seen that all the documents enclosed along with mercy petition of the petitioner and the submissions made by him in the mercy petition were taken into consideration.”

Non-placing of relevant materials – medical status report and the status report as per the mental health of the petitioner

It was argued that torture, cruelty and inhuman treatment and the physical assault were inflicted on Vinay Kumar in the prison, and that he was was suffering from various illness and on complaints of “decreased appetite”, “decreased sleep” and number of other times for “psychiatric review”, “thought disorder” and “weakness”, number of times, he was taken to Central Jail Hospital and the petitioner was given treatment repeatedly. This was, however, not brought to the notice of the President. On this the Court noticed that the medical report of the petitioner along with the treatment and his latest medical report dated 30.01.2020 was placed before the concerned authorities which in turn, was placed before the President.

“In the medical status report, Dr. Akash Narade has referred to the details of the treatment of the petitioner and certified that the petitioner is psychologically well adjusted and he was being provided with regular therapy sessions by specialized therapists and the general condition of the petitioner is stable.”

The Court further reiterated that the alleged suffering of the petitioner in the prison cannot be a ground for judicial review of the executive order passed under Article 72 of the Constitution of India rejecting petitioner’s mercy petition. The bench had said the same thing while dismissing Mukesh Kumar’s plea against rejection of his mercy petition by the President.

Solitary confinement

for security reasons, the petitioner was kept in one ward having multiple single rooms and barracks and the said single room had iron bars open to air and the same cannot be equated with solitary confinement/single cell.

“It is clear from the affidavit filed by the Director General (Prisons) that the petitioner was not kept in solitary confinement; rather he was kept in protective custody which was for the benefit of the petitioner and also for ensuring the security.”

Bias Order was passed on irrelevant considerations

It was argued that bias caused to the case of the petitioner because of the statements made by the Ministers in the Delhi Government as well as in the Union Government which have led to pre-judging the outcome of the petitioner’s mercy petition even before it was placed before the President of India for consideration. On this the Court said,

“The public statements said to have been made by the Ministers, cannot be said to have any bearing on the “aid and advice” tendered by the Council of Ministers of Delhi to the Lieutenant Governor or by Council of Ministers in the Central Government to the President.”

Four people, Mukesh Kumar Singh , Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh, are facing execution in the infamous Nirbhaya gang-rape and murder case.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

 [Vinay Kumar Sharma v. Union of India, 2020 SCC OnLine SC 196, decided on 14.02.2020]

 

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: A 5-judge bench of NV Ramana, Arun Mishra, RF Nariman, R. Banumathi and Ashok Bhushan, JJ has rejected the curative petition filed by Akshay Kumar Singh, one of the four convicts in the 2012 Nirbhaya gang-rape and murder case. While doing so the Court said,

“We have gone through the Curative Petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra v. Ashok Hurra, reported in 2002 (4) SCC 388.”

Last month, on 18.12.2019, a 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ had rejected the review petition and had said,

“We do not find any error apparent on the face of the record in the appreciation of evidence or the findings of the judgment dated 05.05.2017. None of the grounds raised in the review petition call for review of the judgment dated 05.05.2017.”

Four people, Mukesh Kumar Singh , Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh, are facing execution on February 1 in the matter.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

The Court had on May 5, 2017, upheld the death sentence of all the four convicts in the brutal December 16 gangrape and murder case. The Court, while dismissing the appeal of the four convicts, had said that the crime fell in the rarest of rare category and “shaken the conscience of the society.”

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

[Akshay Kumar Singh v. State of NCT of Delhi, 2020 SCC OnLine SC 108, decided on 30.01.2020]

Case BriefsSupreme Court

Supreme Court: Dismissing the petition filed Nirbhaya gang-rape and murder convict Mukesh Kumar Singh, challenging the rejection of his mercy petition by President Ram Nath Kovind, the 3-judge bench of R Banumathi, AS Bopanna and Ashok Bhushan, JJ said,

“Merely because there was quick consideration and rejection of the petitioner’s mercy petition, it cannot be assumed that the matter was proceeded with pre-determined mind.”

Mukesh Kumar had filed the writ petition against the President’s order rejecting his mercy petition and had sought commutation of the death sentence to life imprisonment on the following grounds:

  • Relevant materials were not placed before the President of India and they were kept out of consideration while considering the mercy petition;
  • The mercy petition was rejected swiftly and there was pre-determined stance and complete non-application of mind in rejection of the mercy petition;
  • Solitary confinement of the petitioner for more than one and half years due to which the petitioner has developed severe psychiatric ailments;
  • Non-consideration of relevant circumstances like prisoners’ suffering in the prison and consideration of extraneous and irrelevant circumstances; and
  • Non-observance of established rules and guidelines in considering the petitioner’s mercy petition.

After hearing the matter at length for the entire day, the bench observed that

“By perusal of the note, we have seen that all the documents were taken into consideration and upon consideration of the relevant records and the facts and circumstances of the surrounding crime, the President has rejected the mercy petition. There is no merit in the contention that the relevant materials were kept out of the consideration of the President.”

The Court further noticed that where the power is vested in a very high authority, it must be presumed that the said authority would act carefully after an objective consideration of all the aspects of the matter.

On the argument relating to Solitary confinement of the prisoner, it was brought to the Court’s notice that for security reasons, the petitioner was kept in one ward having multiple single rooms and barracks and the said single room had iron bars open to air and the same cannot be equated with solitary confinement/single cell. It was further stated that the prisoner/petitioner who was kept in the single room comes out and mixes up with the other inmates in the prison on daily basis like other prisoners as per rules.

On the argument raised by Mukesh Kumar’s counsel that he was physically and sexually assaulted in Tihar jail and put under solitary confinement, the Court said,

“The alleged sufferings in the prison cannot be a ground for judicial review of the executive order passed under Article 72 of the Constitution rejecting the petitioner’s mercy petition.”

The Court concluded by holding that the delay in disposal of mercy petition may be a ground calling for judicial review of the order passed under Article 72/161 of the Constitution, however,

“the quick consideration of the mercy petition and swift rejection of the same cannot be a ground for judicial review of the order passed under Article 72/161 of the Constitution. Nor does it suggest that there was pre-determined mind and non-application of mind.”

Four people, Mukesh Kumar Singh , Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh, are facing execution on February 1 in the matter.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

[Mukesh Kumar v. Union of India, 2020 SCC OnLine SC 96, decided on 29.01.2020]

Hot Off The PressNews

Supreme Court: After a day long hearing in he petition filed Nirbhaya gang-rape and murder convict Mukesh Kumar Singh, challenging the rejection of his mercy petition by President Ram Nath Kovind, the 3-judge bench of R Banumathi, AS Bopanna and Ashok Bhushan, JJ has said that it will pass the order at 10:30 tomorrow.

Four people, Mukesh Kumar Singh , Pawan Kumar Gupta, Vinay Kumar Sharma, and Akshay Kumar Singh, are facing execution on February 1 in the matter.

Advocate Anjana Prakash, appearing on behalf of Mukesh, alleged that her client was physically and sexually assaulted in Tihar jail and put under solitary confinement.

“He (Mukesh) was forced to have intercourse with Akshay (another death row convict in the case) in Tihar jail,”

The counsel said that the Presidential pardon is a Constitutional duty of great responsibility, which must be exercised keeping in mind greater good of the people.

“Solitary confinement and procedural lapses are the grounds for considering this case … Undue delay in hearing the petition and the due and prescribed procedure was not followed in this case,”

She further contended that the documents were placed before the President of India without application of mind. She said,

“I am not challenging the judicial verdict. The judicial verdict stands as it is. The courts can’t go into as how it was rejected, but the president can certainly go into the merits of the case,”

Solicitor General Tushar Mehta, appearing on behalf of the Delhi government, said that even death convicts have to be treated fairly under Article 21 of the Indian Constitution but opposed the plea of the death row convict.

“Delay can be a ground for considering a case, but expeditious disposal of case/petition (/search?query=petition), it can’t be a ground for challenging this before the court,”

He highlighted that the trial court, Delhi High court, and the Supreme Court had awarded and upheld the death penalty to the convicts in the case while considering their medical condition.

“Sometimes, the medical health and condition of a death row convict deteriorate so much so that the death penalty can’t be awarded to those death row convicts, but in this case, the medical condition of this convict is fine,”

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

On January 21, 2020, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial. Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

(Source: ANI)

Hot Off The PressNews

Supreme Court : A bench headed by CJI SA Bobde has said that it will hear the writ petition filed by one of the death row convicts
in the 2012 Nirbhaya gangrape and murder case tomorrow at 12:30. The death row convict Mukesh Kumar Singh has challenged the rejection of his mercy petition by President of India. CJI had, earlier today, asked Mukesh Kumar’s lawyer to approach Supreme Court Registry for urgent listing of his plea against rejection of mercy petition by the President. He said,

“If somebody is going to be executed on February 1, it’s top priority”

A Delhi court has issued a fresh death warrant against the four death-row convicts in the Nirbhaya rape case, who will be executed on February 1 at 6 am.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. Besides Mukesh, three others – Akshay, Vinay, and Pawan are facing the gallows for the heinous crime that shook the entire nation. One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

Last week, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ had dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

Another accused, Ram Singh, allegedly committed suicide in Tihar Jail in March 2013 during the trial.
Another convict, who was a minor at the time of the crime, was sent to a reform facility and released after three years of the crime.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ has dismissed the Special Leave Petition filed by Pawan Kumar Gupta, one of the four death row convicts in the Nirbhaya Gang rape case where he “reagitated” the plea of juvenility. The Court said,

“once a convict has chosen to take the plea of juvenility before the learned Magistrate, High Court and also before the Supreme Court and the said plea has been rejected up to the Supreme Court, the petitioner cannot be allowed to reagitate the plea of juvenility by filing fresh application under Section 7A of the JJ Act.”

Pawan Kumar had  contended that he was a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 at the time of commission of the offence and that the same is apparent from the School Leaving Certificate. He claimed that as per his records, his date of birth is 08.10.1996 and therefore, on the date of alleged incident i.e. 16.12.2012, the petitioner was aged only 16 years 02 months and 08 days.

This, however, was not the first time that the petitioner had raised the plea of juvenility. When the matter was pending before the trial court, plea of juvenility was raised by the petitioner at the first instance. The trial court directed the Investigating Officer to file a report regarding the documents he has relied upon to determine the age of the accused. Upon consideration of the report of the Investigating Officer, the Metropolitan Magistrate had held that the age verification report of the petitioner Pawan Kumar Gupta was received and that the accused did not dispute the age verification report filed by the Investigating Officer and further, he did not dispute the age to be above 18 years at the time of commission of the offence.

He had also raised the plea of juvenility in the review petition before the Supreme Court which was also rejected by the Court vide order dated 09.07.2018. The Court, hence, noticed.

“Considering the earlier orders passed by the Metropolitan Magistrate dated 10.01.2013 and the judgment of the High Court dated 13.03.2014 and the order passed by the Supreme Court dated 09.07.2018, in our view, the learned Single Judge of the Delhi High Court rightly dismissed the revision petition.”

This rejection of SLP and earlier review and curative petitions has brought the death row convicts one more step closer to hanging that is scheduled to take place on February 1, 2020 after a Delhi Court issued fresh death warrants against all 4 convicts. Earlier the hanging was scheduled to take place tomorrow i.e. on January 22, 2020.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore.

One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term. Two of the convicts are yet to file curative petitions before the Supreme Court.

[Pawan Kumar Gupta v. State of NCT of Delhi, 2020 SCC OnLine SC 48, decided on 20.01.2020]

Hot Off The PressNews

9-Judge Bench of the Supreme Court assembles to hear pleas relating to discrimination against women at religious places including Kerala’s Sabarimala Temple. 

The Bench cleared the point that they will not be hearing the review pleas of Sabarimala Temple Case, but will be considering the issues referred to by the 5-Judge Bench earlier. The 5-Judge Bench in November, 2019 did NOT refer Sabarimala Review Petitions to a larger bench but kept it pending.

Questions before the 9-Judge Bench for consideration are:

1. Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.

2. Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.

3. Sweep of expression ‘morality’ or ‘constitutional morality. Is it overarching morality in reference to preamble or limited to religious beliefs or faith? There is a need to delineate the contours of that expression, lest it becomes subjective.

4. The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.

5. Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.

6. Whether the “essential religious practices” of a religious denomination or even a section thereof are afforded constitutional protection under Article 26.

What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

In addition, it was said that the larger bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

Senior Advocate, Indira Jaising argued that in order to decide the present issues, a decision on the review is a precondition.

Further, she stated that, 5-Judge Bench decision is not been held to be wrongly decided. The only reason to refer this to a 9 Judge Bench seems to be that Shirur math was decided by a 7-Judge Bench. But the Shirur Math judgment has also not been questioned. Even the 5-Judge Bench in Sabarimala Review petition has not said that the Shirur Math Judgment was wrong.

Senior Advocate, Abhishek Manu Singhvi: The issues framed in the present matter are very broad. The issues must be reframed.

Chief Justice of India agreed to fine-tuning of issues. Also, asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing. He added that, the Secretary-General of the Supreme Court will convene a meeting of all lawyers to discuss the framing of issues.


Also Read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: In a last ditch effort to escape the noose, Vinay Kumar Sharma, one of the four men sentenced to death in the Nirbhaya gang rape and murder case, has filed a curative petition in the Supreme Court on Thursday after a Delhi Court issued death warrants against all 4 convicts and directed that they be hanged on January 22 at 7 am in Tihar jail.

In his curative plea, which is the last legal remedy available to a convict, Vinay said his young age has been erroneously rejected as a mitigating circumstance.

“The petitioner’s socio-economic circumstances, number of family dependants including ailing parents, good conduct in jail and probability of reformation have not been adequately considered leading to gross miscarriage of justice,”

It said the court’s judgment has relied on factors such as “collective conscience of society” and “public opinion” in deciding the sentence to be imposed on him and others.

“The impugned judgment is bad in law as subsequent judgments of apex court have definitely changed the law on death sentence in India allowing several convicts similarly placed as him to have their death sentence commuted to life imprisonment,”

It further said that after pronouncement of the Nirbhaya judgment in 2017 there have been as many as 17 cases involving rape and murder in which various three-judge benches of the Supreme Court have commuted the death sentence.

The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore.

One of the six accused in the case, Ram Singh, allegedly committed suicide in the Tihar Jail here.

On July 9, 2018 , the Court had dismissed the review pleas filed by the three convicts in the case, saying no grounds have been made out by them for review of the 2017 verdict.

On December 18, 2019, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ rejected the review petition of the last convict, Akshay Kumar Singh, seeking modification and leniency.

A juvenile, who was among the accused, was convicted by a juvenile justice board and was released from a reformation home after serving a three-year term.

(Source: PTI)

Hot Off The PressNews

Supreme Court: A nine-judge Constitution bench headed by Chief Justice S A Bobde will hear from January 13 the issue of allowing women and girls of all ages to enter Kerala’s Sabarimala temple, along with the other contentious issues of alleged discrimination against Muslim and Parsi women.

The other judges on the bench are Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant. Interestingly, none of the nine judges has previously been a part of any bench hearing the Sabarimala issue.  

The nine-judge bench has been set up after a five-judge bench headed by then CJI Ranjan Gogoi, by a 3:2 majority verdict, suggested that the matter be referred to a seven-judge bench while examining the review petition filed against the historic September 28, 2018 judgement which had allowed women of all ages to enter Sabarimala temple. The judgment dated 14.11.2019, delivered right before the retirement of the then CJI Justice Ranjan Gogoi, said,

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of JudgesHe, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues.

Besdies Justice Gogoi, Justices A M Khanwilkar and Indu Malhotra (the lone woman judge on the bench) were in majority while Justices R F Nariman and D Y Chandrachud had penned a minority verdict on November 14, 2019.

The top court had on Monday issued a notice informing about listing of the petition filed by Indian Young Lawyers Association seeking review of the 2018 judgement.

However, the names of the judges were announced today.

Questions that the Larger Bench ‘may’ take up for consideration as suggested in the November 14, 2019 verdict

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

(With inputs from PTI)

Case BriefsSupreme Court

Supreme Court: After a brief hearing on the review petition filed by Akshay Kumar Singh, one of the convicts in the brutal December 16, 2012, Nirbhaya gang-rape and murder case, seeking modification and leniency, the 3-judge bench of R Banumathi, Ashok Bhushan and AS Bopanna, JJ has rejected the review petition and said,

“We do not find any error apparent on the face of the record in the appreciation of evidence or the findings of the judgment dated 05.05.2017. None of the grounds raised in the review petition call for review of the judgment dated 05.05.2017.”

The bench headed by Banumathi, J held that the contentions assailing the case of the prosecution were all raised earlier and upon consideration of evidence, the same were rejected by this Court. Stating that review petition is not for re-hearing of the appeal on re-appreciation of the evidence over and over again, the Court said that a party is not entitled to seek review of the judgment merely for the purpose of rehearing of the appeal and a fresh decision.

The grounds raised in the review petition were:

  • futility of awarding death sentence in Kalyug, where a person is no better than a dead body; and
  • that the level of pollution in Delhi NCR is so great that life is short anyhow and everyone is aware of what is happening in Delhi NCR in this regard and while so, there is no reason why death penalty should be awarded.

The Court said that it was unfortunate that such grounds were raised in the matter as serious as the present case.

During the hearing, the convict’s advocate, Dr. AP Singh had argued that death penalty is a primitive method of punishment and that execution kills the criminals and not the crime. He also said that use of death penalty doesn’t seem to have a deterrent effect to criminals and convicts. He also argued that only the poor and downtrodden are more likely to be sentenced with death sentence. The Court, however, said that

“Such general contentions put forth against the capital punishment cannot be gone into in this review petition.”

On the submission that because of the media pressure, the petitioner and other accused have been falsely implicated, the Court held,

“In a criminal case, culpability or otherwise of the accused are based upon appreciation of evidence adduced by the prosecution and also the evidence adduced by the defence. The materials or the news emerging in the media and press as also the news channels cannot be taken note of in arriving at a conclusion on the culpability of the accused or to test credibility of the witness. Such events cannot be urged as a ground for review.”

On the question of award of death sentence, Solicitor General Tushar Mehta told the Court that there are certain crimes where “humanity cries” and Nirbhaya case was one of them. He added,

“Convict doesn’t deserve any leniency, God would feel ashamed on creating such monster.”

The Court noticed that the mitigating circumstances elaborated upon by the defence by way of highlighting the comparatively young age of the convicts, their socio-economic background, their unblemished antecedents and their chances of reformation, fade into insignificance. It, hence, held,

“In light of the aggravating circumstances and considering that the case falls within the category of “rarest of rare cases”, the death penalty is confirmed.”

After the Court held that it found no grounds for review of 2017 verdict upholding death penalty of convict, the convict’s advocate, Dr. AP Singh sought 3-weeks’ time to file mercy petition before President. Solicitor General Tushar Mehta, however, countered the submission by saying that one week’s time is prescribed under law for filing mercy petition before President. The bench headed by Banumathi, J, however, refrained from expressing view on time frame to file mercy petition and said,

“whatever time is prescribed under law, convict can avail remedy of filing mercy plea within it.”

The Court had on May 5, 2017, upheld the death sentence of all the four convicts in the brutal December 16 gangrape and murder case. The Court, while dismissing the appeal of the four convicts, had said that the crime fell in the rarest of rare category and “shaken the conscience of the society.” Writing down a 429 page long judgment, the 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ  had noticed that attacking the deceased by forcibly disrobing her and committing violent sexual assault by all the appellants; and insertion of rod in her private parts that, inter alia, caused perforation of her intestine which caused sepsis and, ultimately, led to her death, shows that the accused persons had found an  object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and the gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her alongwith her friend out of the bus and crush them. The Court said that the casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable.

The Court had also rejected the review petition of the other 3 convicts on July 9, 2018.

[Akshay Kumar Singh v. State (NCT of Delhi), 2019 SCC OnLine SC 1653, decided on 18.12.2019]

Hot Off The PressNews

Supreme Court: The 5-judge bench headed by SA Bobde, CJ has dismissed a batch of petitions seeking review of its November 9 Ayodhya land dispute verdict, which cleared the way for construction of a Ram Temple at the disputed site. The bench took these review pleas for consideration in-chamber, rejected them after finding no merits.

On November 9, the 5-judge bench of Ranjan Gogoi, CJ, S.A. Bobde, Dr. D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer, JJ, sat down on a Saturday morning, otherwise a holiday, to finally put an end to the Ayodhya Title dispute and held that the disputed land is to be given to Trust for construction of Ram Mandir. In an effort to balance the interest of both the parties involved, the Court directed  that a suitable plot of 5 acres must be granted to Sunni Waqf Board to set up a Mosque. The sensitivity of the issue was evident from the fact that the1045 pages long ‘unanimous’ verdict was silent on who wrote it. One of the 5-judges wrote a separate but concurring opinion on the issue whether disputed structure is the holy birthplace of Lord Ram as per the faith, belief and trust of the Hindus. The name of the judge was, however, not disclosed as well.

After noticing that the allotment of in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Court gave the following directions:

  • Central Government to formulate a scheme for he setting up of a trust with a Board of Trustees or any other appropriate body within 3 months. Nirmohi Akhara to be given adequate representation in the Trust.
  • Possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted. Possession of the disputed property shall continue to vest in the statutory receiver under the Central Government till then.
  • A suitable plot of land admeasuring 5 acres be allotted to the Sunni Central Waqf Board either by
    • The Central Government out of the land acquired under the Ayodhya Act 1993; or
    • The State Government at a suitable prominent place in Ayodhya.

Also read:

Here’s why the 5-judge bench held that the disputed Ayodhya site belongs to the Hindus

Hot Off The PressNews

Supreme Court: Akshay Kumar Singh, one of the convicts in the brutal December 16, 2012, Nirbhaya gang-rape and murder case, has filed a review petition seeking modification and leniency.
Singh was sentenced to death by a trial court on September 13, 2013, for raping and murdering the 23-year-old woman physiotherapist on the chilling cold night of December 16, 2012, in the national capital. His sentence was upheld by the Delhi High Court and finally by the Supreme Court.

The convict — Akshay — in his review petition pleaded and requested the Supreme Court to consider his prayer and review its earlier judgement of May 5, 2017, in which the Court sentenced him to the gallows. Akshay’s lawyer, Dr. AP Singh said,

“We are requesting the apex court to conduct the review petition hearing in an open court,”

The Court had on May 5, 2017, upheld the death sentence of all the four convicts in the brutal December 16 gangrape and murder case. The Court, while dismissing the appeal of the four convicts, had said that the crime fell in the rarest of rare category and “shaken the conscience of the society.” Writing down a 429 page long judgment, the 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ  had noticed that attacking the deceased by forcibly disrobing her and committing violent sexual assault by all the appellants; and insertion of rod in her private parts that, inter alia, caused perforation of her intestine which caused sepsis and, ultimately, led to her death, shows that the accused persons had found an  object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and the gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her alongwith her friend out of the bus and crush them. The Court said that the casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable.

The Court had also rejected the review petition on July 9, 2018.

(With inputs from ANI)

Hot Off The PressNews

Supreme Court: The bench of Arun Mishra and Vineet Saran, JJ has dismissed the petition seeking review of it’s July 5, 2019 judgment which had upheld the conviction of nine people involved in the murder of former Gujarat home minister Haren Pandya. Pandya was a minister of state for home in the then Narendra Modi government in Gujarat and was shot dead on March 26, 2003, during a morning walk near Ahmedabad’s law garden area.

Dismissing the review petitions, the Court stated,

“The order, of which review has been sought, does not suffer from any error apparent warranting its reconsideration. The review petitions are, accordingly, dismissed.”

The Supreme Court had in its judgment in CBI v. Mohd. Parvez Abdul Kayuum, 2019 SCC OnLine SC 832 sentenced nine out of twelve convicts to life imprisonment after setting aside their acquittal by the Gujarat High Court.
Three other accused were sentenced to varying jail terms for charges of criminal conspiracy and offences under the Prevention of Terrorism Act (POTA) in 2007.
(ANI)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ has dismissed the the petition seeking review of it’s 2018 order where the bench had dismissed the petition seeking probe in the much talked about Rafale Deal by holding that there was no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government

The Court held that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that it’s original decision was based within the contours of Article 32 of the Constitution of India.

SK Kaul, J, writing for himself and Gogoi, CJ said,

“We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute. We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry.”

On the aspect of pricing, the Court held that it is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation. It, further, said,

“As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.”

On the decision making process, the Court said that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it.

On the argument by the petitioner that the prayer made was for registration of an F.I.R. and investigation by the C.B.I., which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts, the Court said that it wasn’t a fair submission as,

“all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.”

KM Joseph, J, in a separate but concurring opinion, wrote on the issue of registration of FIR

“This is not a case where an old argument is being repeated in the sense that after it has been considered and rejected, it is re-echoed in review. It is an argument which was undoubtedly pressed in the original innings. It is not the fault of the party if the court chose not even to touch upon it.”

He, however, noticed that the petitioners have filed the complaint fully knowing that Section 17A of the Prevention of Corruption Act, 1988 constitutes a bar to any inquiry or enquiry or investigation unless there was previous approval.

In terms of Section 17A, no Police Officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence 88 alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed.

Noticing the law as specified under Section 17A, he said,

“Even proceeding on the basis that on petitioners complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A.”

He, hence, held that though otherwise the petitioners may have made out a case, having regard to the law actually laid down in Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed.

In the 2018 verdict, the Court had said that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. Stating that it cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft, the Court said

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

Read more about the 3-judge bench verdict in Rafale Deal case here.

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has referred certain seminal issues to a larger bench in a 3:2 verdict. CJI Gogoi, Khanwilkar and Malhotra, JJ gave the majority opinion of referring the the questions to larger bench, whereas Nariman and Chandrachud, JJ gave dissenting opinions.

Due to the reference being made to the larger bench, the subject review petitions as well as the writ petitions will remain pending until determination of the questions indicated hereunder by a Larger Bench.

Surprisingly, the majority verdict runs in only 6-pages in a 77-pages long verdict.

Majority Verdict by CJ Gogoi for himself & Khanwilkar & Malhotra, JJ

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. He, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues. 

Questions that the Larger Bench ‘may’ take up for consideration

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

Overlapping or related issues pending before the Supreme Court

“The debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari.”

The Court also took note of other seminal issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque; Parsi Women married to a non-Parsi in the Agyari; and including the practice of female genital mutilation in Dawoodi Bohra community and said that these issues may be overlapping and covered by the judgment under review and hence, the prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.

    • Muslim Women in Durgah/Mosque Case is pending before a 3-judge bench of SA Bobde, SA Nazeer and Krishna Murari, JJ. On November 5, 2019, the bench had adjourned the matter for 10 days which means that the matter will now be taken up after Justice Bobde takes charge of the CJI office.
    • Parsi Women married to a non-Parsi in the Agyari case was referred to a 5-judge bench by a 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ in October, 2017. The 5-judge bench of former CJ Dipak Misra and AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, JJ last heard the matter on December 14, 2017. [2017 SCC OnLine SC 1275]
    • Case relating to practice of female genital mutilation in Dawoodi Bohra community was referred to a larger bench on September 24, 2018 by a 3-judge bench of former CJ Dipak Misra and AM Khanwilkar and DY Chandrachud, JJ. The Constitution bench is yet to be formed. [2018 SCC OnLine SC 2667]

Stay on the 2018 verdict

The verdict is silent on whether there will be a stay on the 2018 Sabarimala Verdict which means that the said judgment will continue to hold ground till the review petitions are finally decided by the Court.

Why the majority verdict is debatable?

‘Suggestive’ reference

The verdict does not make a clear reference of issues to a larger bench. The wordsthe prospect of the issues arising in those cases being referred to larger bench cannot be ruled outused in the majority verdict may mean to imply that the reference made by the Court is merely ‘suggestive’.

Nariman, J’s minority opinion also talks about the ‘suggestive’ nature of the references when it says,

“if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras.”

Hence, it would not be completely wrong to say that this judgment merely suggests the Benches in the abovementioned 3 cases to refer the issues listed down by it to a larger bench if it thinks fit.

Reference of a review petition

If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.

It is also pertinent to note that in the majority verdict, no ‘error on the face of record’ has been pointed out. In fact, the majority verdict has not answered the review at all. Which explains why the majority verdict runs in only 6 pages and 9 paras.

Dissenting opinion by Nariman, J for himself and Chandrachud, J

“Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things.”

Disagreeing with the majority opinion that the Review Petitions be kept in a lurch while the larger bench decides the seminal issues concerning right to religion and women rights, Nariman and Chandrachud, JJ said that the only issue before the Court in the present case was the review petitions and the writ petitions that were filed in relation to the judgment in Indian Young Lawyers Association v. State of Kerala, 2018 SCC Online SC 1690.

Stating that if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras, Nariman and Chandrachud, J said,

“What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all.”

They, hence, went on to examine the issue at hand and noticed that there was a clear consensus on the following 3 issues:

  • The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
  • The four majority judgments specifically grounded the right of women between the ages of 10 to 50, who are excluded from practicing their religion, under Article 25(1) of the Constitution, emphasizing the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both men and women of all ages professing the same religion.
  • Section 3 of the 1965 Act traces its origin to Article 25(2)(b) of the Constitution of India, and would apply notwithstanding any custom to the contrary, to enable Hindu women the right of entry 18 in all public temples open to Hindus, so that they may exercise the right of worship therein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is violative of Article 25(1) of the Constitution of India and ultra vires Section 3 of the 1965 Act.

Given the consensus on the three issues delineated above, Nariman, J, hence, wrote that no ground for review of the majority judgments was made out and the review petitions were hence dismissed.

Nariman and Chandrachud, JJ, hence, directed the State of Kerala to give wide publicity to the 2018 Sabarimala judgment through the medium of television, newspapers, etc. Pressing upon the need to implement the 2018 Sabarimala Verdict, they asked the government to take steps to secure the confidence of the community in order to ensure the fulfillment of constitutional values. The State government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community, Nariman, J said in the minority opinion.

[Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461, decided on 14.11.2019]


Read more about the opinions of all the judges in the 4:1 majority verdict here.

Hot Off The PressNews

Supreme Court: Adding to the series of important rulings that are being passed before CJI Ranjan Gogoi retires, the Court is to pronounce 2 major verdicts tomorrow. CJI Gogoi retires on November 17, 2019.


SABARIMALA REVIEW PETITION


The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ will pronounce the verdict in a batch of petitions seeking review of its September 28, 2018 judgement that allowed women of all age groups to enter the Sabarimala temple in Kerala.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. The lone dissenting opinion in the matter was that of Justice Indu Malhotra, who said:

the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.


RAFALE REVIEW PETITION


The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ will pronounce the verdict in the petition seeking review of it’s 2018 order where the bench had dismissed the petition seeking probe in the much talked about Rafale Deal by holding that there was no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government

The Bench, in the said order, said that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. Stating that it cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft, the Court said

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

Read more about the 3-judge bench verdict in Rafale Deal case here.


Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. rejected an application for seeking condonation of delay in the filing review petition.

The facts of the case were that the petitioner filed an RTI application against the order wherein respondent have denied filling up of 36 vacancies under the ST category or allotment of the same to a Physically Handicapped candidate in ST Category. When no response was received to the RTI application, the first appeal was made by the applicant, in which no order was passed. Thereafter the second appeal was preferred which was disposed of through an order by stating that no post was filled under ST category from Handicapped person.

Mazhar Ali Khan, counsel for the applicant stated that on obtaining the copy of the order, he could not reach the court as at that time summer vacations were going on. It was further stated that the statutory period of 30 days is prescribed under the Limitation Act as well as High Court rules and there is a delay of 446 days in filing the review petition. It was further submitted that there was a cause of action after the order of the second appeal under the RTI Act and the delay can be condoned as it was otherwise beyond the control of the petitioner.

The Court was of the opinion that the rules of limitation are not superfluous or vestigial but are to be interpreted in a meaningful manner so as to save the system from anarchy. The Court added that the law of limitation fixes a life span for every legal remedy. It was further held that the applicant was gross negligent that the word sufficient cause was not used in the application. The court thus held that Law is also clear that each day after limitation time, is required to be explained by cogent means. It cannot be set aside on flimsy grounds and at the wish of applicant who remained all along negligent. Thus the application seeking condonation of delay along with review petition was dismissed by the Court.[Harish Chander v. State of J&K, 2019 SCC OnLine J&K 481, decided on 28-05-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ashutosh Kumar, J. hearing a civil writ petition challenging the order passed by Division Bench of this Court, held that a petition if not maintainable if liberty to file a review petition has been granted while dismissing the appeal.

Petitioner herein had preferred a writ petition earlier before this Court in relation to discrepancies in evaluation of his answer book, which was rejected. In a letters patent appeal (LPA), the Division Bench of this Court refused to interfere with finding and direction of the learned Single Judge but gave liberty to the petitioner to approach the writ-Court again in review, in case any discrepancies were found in the evaluation of answer-books by him.

The Court opined that in view of the order passed in LPA, the present writ petition ought not to have been filed straightway. On the request of petitioner’s counsel Mr Rajesh Kumar Sharma, the Court permitted him to withdraw this writ petition in order to prefer a review, in case so desired, before the Single Judge Bench.

The petition was disposed of on the aforesaid terms. [Rakesh Kumar v. State of Bihar, 2019 SCC OnLine Pat 213, Order dated 15-02-2019]