Tag: Delhi high court

Wildlife Protection Act, 1972

Reading time: 8-10 minutes.

As the human race developed, so did its desires. It went from savage to civilized, from small tribal groups to big towns and cities. Agriculture required lands that led to clearance of the forest lands. The establishment of towns and cities required clearance of large forest areas as well. At first, it did not seem to be a grave issue.

But with time, the desires of humans took big jumps and turned into greed. The fast pace of development without paying any heed to the environment became the norm. More and more forest areas were getting cleared to establish more civilizations. We know it to be true that when anything gets done beyond the limits, it can cause adverse effects. And greed doesn’t know any limits or boundaries.

Over the years, the environment has suffered at the hands of humans and their greed. But these effects have not been felt with the same intensity as they should be. This is because that these effects did not affect individuals on a personal level. Thus, the havoc wreaked on the environment by the human race was not felt or seen. As a result, steps to be taken for the protection of forests and wildlife have suffered a setback.  The British Indian government had introduced a few Acts for the protection of wild birds and animals. Though, it was only after independence that wildlife became a priority issue.

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Why was the act introduced?

Our legislators understood the importance of wildlife. They were able to see the impact human development had on it. They could foresee the situation that was going to arise if the destruction was allowed to continue.

Our country had seen a significant rise in the cases of hunting and killing of wildlife. The royals had always enjoyed hunting wild animals for sports and entertainment. Skins of dangerous wild animals such as that of tigers were used as decorative mats or wall hangings. They also made for a good gifting option. The obsession with animal skin, later on, took the shape of trading. Such markets also had a place for elephant tusks and other body parts of wild animals. The British added to the existing problem.

Rich British men would come to India and take part in hunts. They would hire local hunters who would hunt on their behalf and injure the animal to overpower it. The last bullet was shot by the Englishman. Photographs with carcasses were a huge hit. The more the dead bodies, the braver the Englishman could prove himself to be.

All these things led to a problematic situation for wildlife in India. Similar struggles were seen in other countries as well where wildlife destruction was reaching the zenith. Thus, in 1972, the United Nations Conference on the Human Environment took place in Stockholm, Sweden. It is also known as the Stockholm Conference.

The Stockholm Conference was one of the major conferences held by the UN on environmental issues. It gave birth to the United Nations Environment Programme (UNEP). India was an attendee along with the other Member States. This conference proved to be a turning point for international environmental laws. It also played a major role in influencing the environment laws of India. Before this conference, no major laws were in place for the protection of wildlife. It was only after this conference that the Wildlife Protection Act (WPA), 1972 came into being. It was passed on the 21st of August 1972 and was implemented on the 9th of September 1972.

WPA is one of the major Acts in India that changed the face of environmental laws. This is because it covers both the flora and the fauna of the wild. It covers most of the issues and provides for punishments. This Act laid down the importance of wildlife in the eyes of the State.

Its salient features

The major features of WPA are as follows:

  1. It aims to protect all wildlife that is listed within the Act and includes birds, animals, and plants.
  2. It provides for the regulation of illegal trades in wildlife and wildlife products.
  3. It prohibits hunting of endangered species.
  • It provides for the establishment of protected areas. It provides for five types of protected areas for wildlife:
  • National Parks,
  • Wild Life Sanctuaries,
  • Tiger Reserves,
  • Community Resources and
  • Conservation Reserves
  • The WPA is divided into six schedules.
  • Schedule I to IV provide for protection to listed animals and punishments.
  • Schedules I and II cover endangered species such as cheetah, musk deer, rhinoceros, and Tibetan gazelle among others. The species listed in these two schedules have absolute protection. Any infringement invites harsh punishments.
  • Schedules III and IV are similar to that of I and II. These species are not in danger of extinction. The punishment is of a lower degree than that incurred on the infringement of the first two schedules.
  • Animals included in Schedules I to IV can be killed according to the provisions of section 11 of WPA.
  • Schedule V specifies those species of animals that are okay to hunt. Animals listed in this Schedule are common crows, fruit bats, mice, and rats.
  • Schedule VI of the Act lays down provisions for such plant species whose cultivation is prohibited. There are a total of six such plant species including pitcher plant and kuth among others.
  • It also provides for the constitution of the following four important bodies. These bodies play a key role in the protection of the wildlife by proper implementation of the laws provided in the Act.
  • National Board for Wildlife

It is not an implementing body but an advisory body, chaired by the Prime Minister of India. It is an apex reviewing body for all wildlife-related issues. The main function of this Board is to promote wildlife conservation. Any alteration in the boundaries of National Parks or Wildlife Sanctuaries cannot be done without the Board’s approval. The advisory body at the State level is the State Board for Wildlife.

  • Central Zoo Authority

It is a statutory body that regulates the functioning of zoological parks in India. It evaluates and assesses zoos for the maintenance of a minimum standard of upkeep and health of the animals. It also gives monetary and technical support to these zoological parks. One of its primary functions is to recognize zoos. No zoo can operate without getting recognition from the Authority.

  • National Tiger Conservation Authority

Tigers are one of the endangered species in India. This Authority was thus constituted for working towards the protection of tigers in India. It approves a State’s Tiger Conservation Plan. It is a supervisory body and performs other functions as specified in the Act.

  • Wildlife Crime Control Bureau

It is a statutory and multi-disciplinary body. It aims to combat and curtail wildlife-related crime in India. It collects any information related to wildlife crime and passes it on to the respective authorities.

Progress made under the Act

The enactment of the Wildlife Protection Act has played a significant role in the protection of wildlife. A lot of progress has been made in this area.  Had it not been implemented, the scenario of the wildlife of our country would have been very different.

The Act underwent many amendments over the years. The first amendment laid provisions for the translocation of wild animals for “scientific management and introduction of alternative habitat.”

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The 1991 Amendment Act prohibited the hunting of all wild animals and birds except vermin. But, hunting in exceptional circumstances was allowed.

Central Zoo Authority was introduced in the 1993 Amendment Act. It played a significant role in regulating and evaluating zoos across the country. This Authority also played a major role in the conservation of wildlife. In 2015, it introduced artificial breeding of the great Indian Bustard to boost its population.

Through this Act, India was able to save, or at least prevent many species from getting extinct. The 2006 amendment strengthened the tiger conservation movement by providing for the constitution of the National Tiger Conservation Authority and Wildlife Crime Control Bureau.

India is home to around 70% of the world’s population of tigers. It was due to the efforts under this Act, that the dwindling population of tigers is saved. According to the census report of 2019, India showed a significant increase in its tiger population. With the help of Project Tiger, there was about a 33% increase in the tiger count.

One of the very important developments that took place was when the Wildlife Crime Control Bureau provided for the establishment of a centralized wildlife crime data bank. It was also awarded the Asia Wildlife Enforcement Award by the UNEP for its role in combating trans-border environmental crimes. The Bureau has also been successful in conducting many operations some of which are as mentioned below:

  • Operation Soft Gold (2018)

This operation aimed to protect the Tibetan Antelope from hunting. These animals were often ignored by enforcement agencies. This operation thus aimed at bringing the focus on the. These animals were mostly killed for their skin which was used to make a certain kind of shawl named Shahtoosh.

  • Operation Wildnet (2017)

This operation led to the introduction of technology-based tracking of illegal trades. The e-commerce platforms were being used for illegal trades. This operation thus worked by tracking such illegal offers and sales.

  • Operation Thunderbird (2017)

This was an international operation that was not concentrated on a single species. It took into its ambit multiple species and their illegal trade.

  • Operation Save Kurma (2016)

This operation was specifically conducted for control of the illegal trade routes which were used to trade live turtles and tortoises.

The Wildlife Institute situated in Dehradun proposed a Cheetah Reintroduction Project a few years back. It hit a roadblock which forced the National Tiger Conservation Authority to move to the Court. The Hon’ble Supreme Court has recently cleared the way for this project. Cheetahs went extinct in India around 70 years ago. Under this project, the cheetahs will be brought from Namibia.

Landmark judgments

As we all know, the judiciary performs the role of keeping a check on the proper implementation of the law. It also plays a role in clarifying the position of law. The judiciary has been active in establishing the position of law regarding wildlife and its protection. Some of the landmark cases related to the Wildlife Protection Act are described below:

  • The Blackbuck case  (2018)

It is an ongoing case that is known to most of the Indians as it involves many famous Bollywood actors including Salman Khan. He was convicted under section 51 of WPA for the killing of a blackbuck.

  • Indian Handicrafts Emporium & Others v Union of India & Others (AIR 2003 SC 3240)

The petitioners challenged the order of prohibition of the ivory trade. The Hon’ble Supreme Court observed that the elephants were being greatly harmed for the extraction of ivory. The Court held that the prohibition was essential for the maintenance of public and social interest. It was reasonable and essential as elephants are an important part of the ecosystem.

  • R. Simon & Others v Union of India (AIR 1997 Del 301)

The petitioners challenged the ban on the trade of products derived from certain animals provided under the WPA. They claimed that Article 19(1) (g) of the Constitution granted the citizens the right to carry on any profession or trade. The petitioners also challenged the worth and importance of these animals. The Delhi High Court held that animals are essential for the environment. The exploitation of animals would result in damage and imbalance of the ecosystem. It further held that the right to trade is not absolute. It can be restricted based on reasonable grounds under Article 19(6) of the Constitution. Thus, the prohibition of trade in animal articles was held as valid.

  • Tarun Bharat Sangh, Alwar v Union of India [1993 SCR (3) 21]

This case related to illegal mining in an area that was declared as a Tiger Reserve. The Apex Court had appointed a committee to check the same. The Court then canceled the license of the respondents as the mining activity was fund to be illegal. The Court canceled all the 215 mining licenses involved.

  • Trilok Bahadur v. State of Arunachal Pradesh (1979 CR. L.J 1409, Gauhati High Court)

In this case, the question of self-defense was brought up. A guard was on his duty when he saw a tiger approaching towards him. He shot two fires in the air but instead of running away, the tiger started coming near him. The guard seeing no other option shot the tiger and killed him. The Court held that in such circumstances, the ferocity of the animals is to be considered. Tigers are for sure very ferocious animals. Thus, the guard was allowed the defense of Section 11(2) of the Wildlife Protection Act.

Conclusion

This Act has played a major role in the protection of wildlife. It has given many successful projects over the years, brought in rules and regulations as well as created awareness. This Act grew with time through several amendments and stayed aligned with the needs of that time. But, there are still many changes that are necessary for the better functioning of the system. Setting up of special courts for speedy trials can go a long way. It will not only allow the Courts of law to focus specifically on the issue of wildlife but will also decrease the burden upon the general Courts.

There is still a lack of priority when it comes to cases related to wildlife and the environment. As has been beautifully stated by Steve Irwin, “If we can teach people about wildlife, they will be touched. Share my wildlife with me. Because humans want to save the things they love.” Awareness is the need of the hour to bring everyone together. It is not only the duty of the government to work for the protection of our wildlife. It is also the duty of every individual. We can achieve a lot if the people, governments, and Courts come together and work for the wildlife and its protection.

Author: Varsha Kumari Mishra from Law College Dehradun, Uttaranchal University.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Death penalty in India

Reading time: 6-8 minutes.

Death penalty is the execution by a state to the convict for committing an offence. The execution is done by lethal injection, shooting or hanging. The capital punishment of death given by the court and execution is ironical in a state which protects the vary basis of human right that is the right to life.

For the rarest of rare crime the capital punishment is given and the state ensures that the wrong doer must be punished. But the courts have an idea of not giving the punishment in the exceptional cases only. The capital punishment is given only for the cases of the rarest of rare. The court has laid down these rules and criteria of giving the capital punishment in the cases of heinous crimes. However, the question is whether capital punishment can be done away with in India altogether. Several countries have abolished the capital punishment as it is against the basic human rights.

Death penalty – An overview

A death penalty is given by state for the execution of a convict in a particular case which imposes death penalty on the convict by the provisions of law on day of committing of crime.

The penalty the death is the highest punishment given in a law. It gives the State a right over one’s life. The execution is done by methods like beheading, electrocution, hanging ,lethal injection and shooting.

Mental stability and death penalty

In the recent Nirbhaya case, the Delhi high court declined to entertain a plea seeking directions to the NHRC to intervene and enquire into mental and physical state of the four death row convicts. The contention was that the four convicts were kept in the solitary confinement under fear of the death which can affect the mental status and stability. Also one of the convicts plea was rejected by the court as he was contended to be mentally instable but the court held him to be fit and his mind is sound. The psychologist checked all four convicts and held them to be fine.

Constitutional validity

The constitutional validity of capital punishment was challenged in the landmark judgment of Jag Mohan vs state of Uttar Pradesh, in which the Hon’ble Supreme Court upheld its validity,

stating that capital punishment itself was not unreasonable per se. Its abolition would not be in the public interest, hence the punishment of death penalty does not violate Article 19 of the Constitution. However, a catena of judgements has held that capital punishment is violative of Article 21 of the Indian constitution, which protects right to life and personal liberty.

Landmark judgments

In the case of Bachan Singh v. State of Punjab, the Court observed that Section 354(3) CrPC is part of the due process framework on the death penalty. Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty.

The general rule since Bachan Singh was that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

Doctrine of rarest of rare

The doctrine of rarest of rare was stated in the landmark judgement of Bachan Singh v State of Punjab, the constitutional validity of the death penalty was upheld by majority of 4 : 1 that death penalty must be awarded in the rarest of rare cases.

Later, in the case of Macchi Singh v state of Punjab, the court held that some categories expanded the criteria of rarest of rare. In the case of Santosh Kumar Bariyar v State of Maharashtra, it was held that the life imprisonment is a rule and death punishment is an exception. In the case of Prajeet Kumar Singh v State of Bihar, the court laid down the rarest of rare criteria ‘when a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

International trends regarding death penalty

Universal Declaration of Human Rights (UDHR)

  • Article 3 provides that everyone has the right to life, liberty and security of person.
  • Article 5 says that no one shall be subjected to torture to cruel, inhuman or degrading treatment or punishment.
  • Article 11 provides that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trail at which he has had all the guarantees necessary for his defence.

Amnesty International opposed capital punishment in all cases without exception, regardless of who is accused, the nature or circumstances of the crime, guilt or innocence or method of execution.

In many countries, the internationally recognised World Day against the Death Penalty is observed on Oct. 10. In 91 countries death penalty was abolished in 2007. Today, there are 106 countries which have abolished death penalty right now.

Death penalty in INDIA – The debate

The idea of the rarest of rare cases is the one which not only punishes the convict of a heinous crime but also deters others from committing the same crime. However, the idea of correction and reformation need not be solved by death alone. The life imprisonment is a self-realization of one’s own deeds which is also an essential part of reducing and correcting the people.

In the most heinous cases the crime is done by a person without thinking twice. The rights of victim are cruelly violated. With this in mind, death penalty becomes essential for punishing the wrongdoer. However, on the same footing the persons right to life cannot be violated and the person should get equal protection of the rights as the right to life is the foremost and the most important right of a man.

Innocent men are being punished in many cases which unnecessarily leads to the violation of right to life. Sometimes they are being punished for the acts which should not be criminalised in some countries and in some countries, even a juvenile is being punished with death penalty. People also spend their years on death row, causing a severe decline in the mental stability of the convict.

Conclusion

Death penalty is an archaic concept, and many countries and international organisations have condemned the practice. It must be accepted that death penalty is violative of the human and constitutional right to life. It can no longer be justified by the doctrine of rarest of the rare as this doctrine is prone to grave misuse. We must work towards adapting the law to the changing times, and do away with capital punishment.

Author: Deeksha from Bharati Vidyapeeth University .

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Transfer of judges

Reading time: 6-8 minutes.

“When justice has to triumph, it will triumph…Be with the truth—Justice will be done.” These were the words of Justice S. Muralidhar, the third most senior judge of the Delhi High Court, as he delivered his farewell speech to a large gathering of his colleagues from the Bench and the Bar.

On the night of February 26, when a part of Delhi was still burning, the Central Government notified the transfer of Justice Muralidhar to the Punjab & Haryana High Court. The next morning saw the social media flooded with posts questioning the intention behind the transfer. Many media outlets questioned it too and Justice Muralidhar became the judge who was transferred for reprimanding the police over their inaction. This was the birth of controversy and the Centre was in the middle of it.

The controversy

In his own words, February 26 was the longest day of Justice Muralidhar’s career. It marked the fourth day of the Delhi riots. At 12.30 am Justice Muralidhar sat down to deal with a Public Interest Litigation (PIL) filed by Rahul Roy that sought safe passage of ambulances carrying the riot victims. Later, on the same day, he along with Justice Talwant Singh heard another PIL from the Chief Justice’s board.

It was while hearing this PIL that Justice Muralidhar stated that the city won’t see a repeat of the 1984 anti-Sikh riots, at least not under the watch of the court. He reprimanded the police over their inaction and directed them to register FIRs against leaders including Anurag Thakur, Parvesh Verma, Abhay Verma and Kapil Sharma for alleged hate speech that led to violence in Northeast Delhi. He also directed for the constitution of a Special Investigation Team (SIT), deployment of army and compensation to the injured and the dead among other things.

His stance filled the people with hope which was soon taken away when close to midnight the Central Government issued the notification of the transfer of Justice Muralidhar to the Punjab & Haryana High Court. It was not taken to be a routine transfer because of its hurried manner and was instead being called a punitive action for speaking against the leaders of BJP, who is in power at the Centre.

Ravi Shankar Prasad, the Law Minister of India defended the midnight transfer order and stated that it was a decision that had already taken place two weeks back. This controversial notification came in furtherance of the recommendation made by the Supreme Court Collegium headed by the Chief Justice of India, S A Bobde which on February 12 had recommended the transfer of Justice Muralidhar along with two other judges. The collegium did not specify any reason for the transfers, as has been the practice.

This transfer recommendation was condemned by the Delhi High Court Bar Association, which not only abstained from work for a day as a mark of their protest but also demanded the collegium to revisit its decision and recall it. Justice Muralidhar—who is known for deciding cases such as the Sajjan Kumar case, Naz Foundation case, and Hashimpura massacre case, clarified that his opinion was sought by the SC collegium concerning his transfer and that he had no issues with it. He has since then taken charge at the Punjab & Haryana High Court and is the second most senior judge there.

Procedure for transfer of judges in India

The procedure for transfer of judges from one High Court to another in India is governed by the Supreme Court collegium headed by the Chief Justice of India. Apart from the CJI, the collegium consists of the Chief Justice of the High Court from which the judge is to be transferred, the Chief Justice of the High Court to which he would be transferred, and one or more senior-most Supreme Court Judges.

The collegium headed by the CJI makes the recommendation for the transfer which is referred to the Government of India along with the views of all the judges involved in making the recommendation. This recommendation is then submitted by the Union Law Minister to the Prime Minister who then advises the President on the transfer of the concerned High Court Judge. Once the transfer is approved by the President, the transfer is announced and then notified in the Gazette.

Legal/Constitutional provisions

The provisions of Article 222 of the Constitution of India govern the procedure of transfer of a judge from one High Court to another.

This article has an absence of guidelines concerning the transfer of judges and has been a part of many judicial interpretations over the years. In Union of India v Sankalchand H. Sheth [(1976) 17 Guj LR107], the transfer of Justice Sheth was challenged because such transfer had taken place without the consent of the Judge and without consulting the CJI. In this case, it was held that the transfer of judges cannot be made without consulting the CJI and must be made only in public interest..

The decision of the Sankalchand H. Sheth case was followed in S. P. Gupta v Union of India [(1982) 2 SCR 365] which is also known as “the First Judges case”. The decision, in this case, gave the primacy to the Executive and not the CJI in matters of appointments and transfers.

The Supreme Court Advocates-On-Record Association v Union of India [AIR 1994 SC 268], commonly known as “the Second Judges Case”, overruled the decision of the First Judges Case. It gave back the primacy to the Judiciary in matters of appointments and transfers. The Hon’ble Supreme Court also established that the CJI will form his opinion by taking into account the views of two senior-most judges of the Supreme Court. It was also held that the opinion of the CJI was also determinative in mattes of transfers.

It was in 1998 that the then President K. R. Narayanan sought the opinion of the Supreme Court concerning judicial appointments and transfers. The Supreme Court thus laid down that the sole recommendation of Chief Justice of India does not constitute “consultation” to fall within the meaning of Article 222. The recommendation for appointments and transfers must be made by the CJI in consultation with four senior-most judges of the Supreme Court. 

Criticism of the system

The transfer of Justice Muralidhar is not a sole case of a transfer that was met with controversy. Similar cases have erupted in the past as well and have forced some questions to be raised on the Supreme Court Collegium.

The transfer of a judge from one High Court to another can be made only in the name of public interest and for better administration of justice. However, on more than one occasion, the transfer orders of High Court Judges have left the people wondering as to what manner of public interest is being fulfilled by such transfers. There are rarely any explanations or reasons given behind the recommendations; the people are merely expected to have faith in the working of the said collegium, even though it has promoted opaqueness rather than transparency.

The 1970s saw the supersession of many senior Supreme Court judges for appointment for the office of Chief Justice of India. Similar was the issue in transfers of High Court Judges. There was a lot of arbitrariness and bias that reeked out of these decisions. It was only in the later years that the Hon’ble Supreme Court through its decisions put a check on executive arbitrariness by giving a primacy to the judiciary in matters relating to appointments and transfers of judges. It also stated that “the plurality of judges in the formation of the opinion of the Chief Justice of India” will act as an in-built check on any further bias or arbitrariness.

The Second Judges case and the Third Judges case laid down guidelines and norms that were supposed to stop the erosion of independence of judiciary. And yet, there are instances of transfers of Justice Rajiv Shakdher of Delhi High Court, Justice Jayant Patel of Gujarat High Court, and more recently the transfer of Madras High Court Chief Justice V K Tahilramani which force out the question — has the judiciary become complacent about its own independence?

Scope of improvement

History is proof that the power of transfer of High Court Judges has been abused. Despite the Supreme Court’s decisions on this subject which clearly state that a transfer cannot be a punitive measure, the feeling of a judge’s transfer being an act of punishment persists. Time and again the transfers of High Court Judges from Justice Jayant Patel to Justice Muralidhar are met with controversy and the lack of explanation on the part of the collegium fuels it further. Merely making the recommendations of transfer public is not an act towards transparency.

Judicial reforms are the need of the hour to maintain the faith of a common citizen in the Courts of law. The Supreme Court has in many decisions established the importance of a “reasoned decision”. It has stated that recording of reasons is “the heartbeat of every conclusion” and “the lifeblood of judicial decision making”. It is, thus, time for the Apex Court to revisit its reasoning. After all, when the law of the land is the same for everyone, then, why should the case of transfer of judges be not treated with the same principles of a reasoned decision?

Conclusion

Justice Muralidhar was transferred amid protests. His transfer was already marred with controversy as the SC collegium did not state any reason for making such a recommendation of the transfer. The non-stating of reasons has been a practice of the collegium and has on more than one occasion raised questions. The controversy was further fueled when the transfer was notified at around midnight. A routine transfer was suddenly shrouded with clouds of doubts and suspicions.

Even though the recommendation was made two weeks before, it was not welcomed by the legal fraternity. The government’s hurried and abrupt notification sowed the seeds of mistrust and a disappearing faith in the minds of the common people. A lack of reasoning and explanation led way to more conjectures.

The Judiciary needs to remain independent to ensure the delivery of justice. And in doing so, it is also the responsibility of the Judiciary to ensure that the faith of the people is not lost in the Courts of law. Transfer of Judges must be without any speck of bias or arbitrariness. Stating reasons behind the transfers can go a long way in ensuring the transparency of the process

Author: Shalu Bhati from Campus Law Centre, Faculty of Law, University of Delhi.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Bihar shelter home case

Reading time: 6-8 minutes.

A Delhi Court through Additional Sessions Judge Saurabh Kulshreshtha sentenced Brajesh Thakur and 11 others to imprisonment for life for sexually and physically assaulting several girls in a shelter home in Bihar’s Muzaffarpur district. These offenders were charged under various offences under the Protection of Children from Sexual Offences (POCSO) Act, and under the Indian Penal code (IPC).

Facts of the case

In a shelter home run by an NGO Sewa Sankalp Evam Vikas Samiti at Muzaffarpur, Bihar, cases of sexual abuse, rape and torture were reported. In May 2018, reports of sexual abuse surfaced at the shelter after Mumbai’s Tata Institute of Social Sciences (TISS) carried out a social audit of shelter homes across Bihar for 2017. In its report, TISS pointed out the sexual abuse of girls at the Muzaffarpur shelter home.

After TISS submitted its report in April 2018, an FIR was lodged against 12 people on May 31, 2018. The main accused, Brajesh Thakur was the head of the NGO, who ran various other NGOs as well. Because of his political connections, there was an apparent delay in investigation and only when the CBI interfered that the trial and the case expedited.

Following the filing of FIR, the girls were rescued and shifted to Madhubani, Patna and Mokama. Medical tests at Patna Medical College Hospital in June confirmed the sexual abuse of 34 out of the 42 girls housed at the shelter home. The test stated that girls were forced to undergo abortion and one was even killed and buried within the shelter compound, however on exhuming to investigate the same, no dead body was found. On 2 August 2018, the Apex Court took a suo moto cognizance in the Muzaffarpur shelter home case and brought the case directly to itself.

Legal provisions involved

In its 1,546 page judgment, the court had convicted Brajesh Thakur and 11 others of offences under Indian Penal Code for Criminal Conspiracy (Section 120-B), causing hurt by dangerous weapons or means (Section 324), voluntarily causing hurt (Section 323), under POCSO Act for failure to report the commission of an offence (Section 21) and under Juvenile Justice Act for cruelty to a Child (Section 75).

Public reaction to the case

The acts of the offenders have been abhorred by every citizen of the nation. The morbid acts of sexual assaults that the offender have committed show their inhumanity and portray that despite human evolution there is a grey area in our brains which divests us with our cumbersome past.

  • In Bihar, the case drew criticism of the ruling party not only by the opposition leaders but also by the Supreme Court of India.
  • The Apex Court has asked media organizations not to interview the accused or the victims to avoid traumatizing them and establishing narratives in this case.
  • Political parties have led a state-wide strike all over the nation. A protest organised by 12 political parties was held at Jantar Mantar specifically against this case and the latency that has been made in this case.
  • The CBI has sought for life imprisonment for Thakur stating that rape is a crime of lust and power and leniency should not be shown to the convicts as the victims in the case were minors.

Significance of current development

Significance of this case cannot be read in isolation of the TISS report. It is due to the TISS report that the Shelter Home Case of Muzaffarpur came into light. The report has dealt with the condition of Shelter Homes not only in Muzaffarpur but in all of Bihar. The report mentions that more than 45% of the shelter homes are in no condition to accommodate people.

The report has stated that the staffs are untrained, they lack the knowledge to run such institution and concurred that this is the major reason why a case like Muzaffarpur arose. This is not the case only in Bihar, if in every part of the nation such audit reports are made many more cases would come before us.

But considering this particular case in isolation one can learn a lot. Firstly, the management of such institutions should understand the importance of their jobs and should also understand that the violation of their duties may lead to so much turmoil as was in this case. Secondly, States should try to maintain a standard of work in such institution because if cases like this would arise it would be a stain not only on the state but also on the nation because cases like these simply defeat the very notion of human rights.

Considering the judgment in the present case our legislature should work upon developing a law which is so robust that a person committing such crime should think twice for the consequences which would in turn help take the criminality out from the minds of such people. It is only when we learn from cases like these that no new case would arise in the future otherwise all that has happened will simply lose its significance and will serve no purpose.

Conclusion

This case was a perfect example of how authority maligns the mentality of a person and leads him/her on the route of moral turpitude. It is offenders like these who defeats the purpose of basic human rights of the weak and action against them should be expedited and rigorous action should be taken so that an example could be established to prevent such crimes in the future. It is high time now for our nation and deterring such offences is only possible when we as citizens work hand in hand with our government to curb out this problem.

Author: Pratyush Pandey from Rajiv Gandhi National University of Law, Patiala.

Editor: Tamanna Gupta from RGNUL, Patiala

Explained: Agustawestland chopper scam

Reading time: 6-8 minutes.

On the 14th of January, 2020, the Delhi High Court dismissed the petition filed by the Enforcement Directorate (ED) to set aside the bail granted to Ratul Puri in the infamous VVIP chopper scam case of AgustaWestland. The trial court had granted the bail to Ratul Puri and also directed him to not tamper with the evidence or try to contact or influence the witnesses.

Maintaining the status quo, the Delhi High Court bench of Chief Justice D N Patel and Justice C Harisankar held that there has to be evidence of misuse of bail for setting aside that relief; thus rejecting the plea of ED to set the bail aside.

In the VVIP chopper scam case, Ratul Puri, the nephew of the present Chief Minister of Madhya Pradesh, Shri Kamal Nath, was named as an accused in the sixth charge sheet filed by the ED. According to ED, the role of Puri was that his foreign entities received proceeds of crime directly from Interstellar Technologies Ltd, a co-accused in the case, and that he had received funds from both the chains of money laundering involved in the present matter.

Thereby, ED had filed a supplementary prosecution complaint (ED’s equivalent to a charge sheet) against Puri and co-accused Jaspreet Ahuja in the Rs 3,600-crore AgustaWestland VVIP chopper deal case.

To understand the above situation better it is important to know the key details regarding the background, developments and legal provisions involved in the infamous case of AgustaWestland.

Knowing the background

According to Stockholm International Peace Research Institute, India is one of the largest arms importer in the world, spending more than $100 Billion in the last 10 years for importing weaponries and other related supplies. These deals are often reported to be fraudulent and ensnared in corrupted practices. AgustaWestland deal, being a similar scenario.

It all began in 1999, when the then NDA government approved the procurement of eight helicopters, to be used for travel by the VVIPs (Very Very Important Persons). The initial requirement set was that the helicopters could fly at an altitude of 6000ft. However, this requirement was reduced from 6000ft to 4500ft, allegedly to benefit a particular company named AgustaWestland.

AgustaWestland is an Anglo-Italian multinational company and is a fully owned subsidiary of Leonardo S.p.A, formerly known as Finmeccanica.

On March 1, 2005, the NSA (National Security agency) chaired a meeting where it was agreed to reduce the flying altitude from 6000ft to 4500ft and the cabin heights to 1.8 meters. The Qualitative Requirements (QR) were finalised on May 9, 2005, in a meeting chaired by the then Defence Secretary.

In the same year, the UPA (United Progressive Alliance) government made another change by increasing the number from eight helicopters to twelve helicopters, by adding four non-VVIP helicopters.

Finally, in the year 2010, the UPA government enters into a Rs 3,546 crore deal with AgustaWestland for the purchase of twelve AW-101 VVIP choppers.

The first lot of three helicopters were delivered in the year 2012 and this was the time when the initial sparks of corruption were reported by the media of both Italy and India.

The Italian media reported that AgustaWestland had hired a middleman to persuade the Indian government to favourably modify the specifications of the helicopters and give the contract to AgustaWestland.

This led to the arrest of the then Finmeccanica Chief, Giuseppe Orsi, by the Italian Police. The CBI (Central Bureau of Investigation) took up the case in India, and the ED also started probing the case.

In March of 2013, The Indian Express reported that around 10% of the Rs 3,546 crore were payed as kickbacks to the alleged middlemen, Christian Michel and Guido Haschke, along with many others through banks in Dubai, Italy and Switzerland.

In December of 2016, the highest court of Italy acquitted Giuseppe Orsi, stating that no corruption had happened in the deal. But a proper investigation in India was very difficult as the central accused Christian Michel and other alleged middlemen were not in India. This led to the extradition of Christian Michel from UAE to India in December 2018 under operation “Unicorn”.

However, the deal was cancelled amid rising controversies.

Knowing legal provisions involved

In the case of Gautam Khaitan v. Enforcement Directorate in December 2014, the Delhi High Court heard the details of the AgustaWestland and the various provisions under which the alleged offenders could be convicted; here, Mr Gautam Khaitan supposedly facilitated the transfer of kickbacks between various middlemen involved.

The important provisions that were highlighted in the case were as follows:

Section 420 of IPC: Cheating and dishonestly inducing delivery of property. The convicted shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.  

Section 13(1) (d) of Prevention of Corruption Act, 1988: This section describes the different criteria under which a public servant could be charged with misconduct relating to unfair pecuniary gains. 

Section 3 and Section 4 of Prevention of Money Laundering Act, 2002: These sections basically deal with defining the offence of money laundering and punishment for money laundering respectively. The acts of the accused were weighed against these sections to know if the acts really constituted money laundering or not.

Section 24 of Prevention of money laundering Act, 2002: Burden of proof shall be on the person who has been accused according to section 3 of the act.

These above sections were read along the relevant sections of Code of Criminal Procedure.

Developments in the case

In the case of Gautam Khaitan v. Enforcement Directorate in the year 2014, the petitioner’s (Gautam Khaitan) plea for getting a bail was dismissed by the Delhi High Court for being infructuous.

In 2015, a writ petition was filed by the petitioner under Article 226 of the Indian Constitution in the Delhi High Court. Thus, the case of Gautam Khaitan v. Union of India (2015) came into being where the high court discussed the merits of the case and dismissed the writ petition.

In 2016, Christian Michel was extradited from UAE under operation “Unicorn”, for CBI probing.

The events of the case extend to Ratul Puri, when it was discovered that his foreign entities had received money from the entities of the prime suspect, Christian Michel, leading us to the present scenario where Ratul Puri has been granted bail by the trial court and the Delhi High Court has denied to set aside the bail until evidence of misuse is found.

How to reduce corruption in defence deals?

India is a major importer of defence goods in the world but undoubtedly, these deals are far from transparent. According to Transparency International, corruption rate is high in Indian defence deals. 

Thus, it is an urgent need of the society to avoid the loss of tax payer’s money over corrupted deals. This can be done by avoiding single source contracts where there is a sole company without competitors which leads to overpricing and corruption.

India should also have a designated body responsible over ethics and anti-corruption within the Ministry of Defence. Most importantly, the Military as well as military spending should remain very transparent, unless it has to remain confidential due to matters of national security. These deals should also remain out of the ambit of politics as far as possible.

Conclusion

AgustaWestland case is one of the biggest controversies continuing since two decades. The recent demand by the ED for setting aside Ratul Puri’s bail, once again brought the case to the lime light.

It started in 1999 when the government wanted to purchase eight choppers for VVIP travel, but the specifications were changed overtime allegedly to benefit AgustaWestland. Though till now there has been no finality to the allegations of scam involved in the case; the deal has been cancelled.

Thus, it becomes pertinent to prevent such situations in defence deals in the future by taking some major steps and developing a robust framework inside as well as outside the Ministry of Defence. 

Author: Utsarga Dash from KIIT School of Law, Bhubaneswar.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.

Explained: Curative petition

Reading time: 6-8 minutes.

Why is the curative petition breaking news?

The barbaric and horrendous gang rape of Nirbhaya in 2012 shook the conscience of every individual in the country. It triggered unfathomable fear in every woman, raised serious questions of the law and order of the country and created unprecedented pressure on the government for stricter rules on safety and well-being of women.

The judicial journey of the case has been long and difficult, but nevertheless remarkable in itself. It has not only revealed the loopholes of the existing system, but has quickened and encouraged for the formation of a better and safer environment for women and juveniles in India.

However, the time invested in exhausting the available procedures before finally punishing the convicts has sadly made amplified the maxim ‘justice delayed is justice denied’.

The five accused were charged for the offences of kidnapping, rape and murder. One of the convicts committed suicide in prison, while and the juvenile convict was sentenced to three years in a reformatory centre. The remaining three convicts were tried in fast track court and were found guilty of rape and murder and were sentenced to death by hanging in 2013. The decision was upheld by the Delhi High Court in 2014, and subsequent review pleas filed by the convicts were dismissed by the Supreme Court.

The counsel for the convicts filed for curative petition in 2019, arguing that the young age and socio-economic background should be considered as mitigating factors. This argument was rejected as well. The mercy petitions filed before the President of India weren’t given a positive reply either. The Delhi Court has finally issued a fresh death warrant, fixing the hanging of all men for February 1st, 2020.

What is a curative petition and how did it develop?

A curative petition is the final and last option available to the people for redressal of grievances in the court of law and to acquire justice as mentioned and promised by the Constitution of India after the review plea is dismissed or has been exhausted. For some, it is the last opportunity for the unheard of being heard. For others, it is a Supreme Court creation which goes against its own power.

The Constitution explicitly speaks of the review power of the Supreme Court of India under Article 137. But the concept of curative petition is fairly new in the field of law in India. The Supreme Court of India evolved the idea of curative petitions in the landmark judgment of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002).

In this case, the question was raised of whether an aggrieved person is entitled to any relief against the final order/judgment of the Supreme Court after dismissal of review petition, either under Article 32 of the Constitution or otherwise.

The five-judge bench of the highest court observed that Article 142 of the Constitution empowers the Supreme Court to act in whatever manner they may deem fit to establish complete justice. Therefore, to protect the substantive rights of the litigant, the Constitution Bench came up with the theory of a curative petition.

The main idea behind the introduction of the new concept was that though the judges do their best to fairly decide a case, their action is subject to human limitations and there may arise a situation where they would have to reconsider their decision in order to prevent abuse of power and to cure the gross miscarriage of justice.

The court used the Latin maxim, ‘actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. The maxim becomes applicable because it would not only be proper but also obligatory both legally and morally to rectify the error.

What are the grounds that allow entertainment of curative petition?

Supreme Court held that only in the rarest of the rare cases, where very strong reasons are present for the court to look into the matter again would it accept an application seeking reconsideration of an order of the apex court which has become final on dismissal of a review petition.

A petitioner is entitled to relief under curative petition, if he establishes that:

  • Violation of principles of natural justice where he was not a party to the matter, but the judgment adversely affected his interests.
  • He was party to the matter, but was not served with notice of the proceedings and the matter proceeded as though he had the choice.
  • Wherein the proceedings a Learned Judge failed to disclose his connection with the subject matter.
  • The parties giving scope for an apprehension of bias and that the judgment adversely affects the petitioner.

In the curative petition thus filed, the petitioner shall assert the grounds mentioned therein, which have been taken in the review petition and that it was dismissed by circulation. The curative petition should also contain a certification by a Senior Advocate with regard to the fulfillment of the above requirements.

The curative petition is then circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of in the petition. It is only when majority concludes that the matter needs hearing, that it should be listed before the same Bench to pass appropriate orders.

The court in the 2002 case added that if at any stage it finds that the petition is displeasing, it could impose exemplary damages on the petitioner. Moreover, it is usually decided by judges in chamber, unless a specific request for an open-hearing is made. The court did not mention any limitation period to file the petition but it was pointed out that it should be within a reasonable time.

Review petition vs. Curative petition vs. Mercy petition

As per article 137 of the Constitution and the rules made under Article 145, the Supreme Court has the power to review its pronounced judgment as an exception to the principle of stare decisis. It is to be filed within 30 days of the pronouncement of the judgment.

If the review petition is dismissed, the curative petition becomes the last judicial resort to turn the judgment in one’s favor. It differs from a mercy petition filed under Article 72 before the President and under Article 161 before the Governor, in that such mercy petitions are based on the claims of mercy, and not on the legality of the judgement petitioned against.

Conclusion

Rectification of an order stems from the fundamental principle of rule of law that proves justice is above all. The introduction of curative petitions strengthens the accountability of the judicial system in India by providing an opportunity to undo possible wrongs, making an individual more empowered with life under Article 21 of the Constitution but at the same time, it becomes essentially necessary to be cautious while dealing with these petitions so as to prevent its misuse by the applicants and to save the precious time of the courts. 

Author: Shambhavi Sirothia from Symbiosis Law School, Pune.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Analysis: Delhi HC Judgement on Termination of Pregnancy

Reading time: 2-3 minutes.

The High Court of Delhi established precedence by permitting termination of 25-week foetus diagnosed with congenital anomaly. The Hon’ble court enunciated that “rigours of section 3(2) can be relaxed where the conditions of foetus is incompatible with life”.

MTP (Medical Termination of Pregnancy) Act, 1971 is the statutory law that governs the termination of pregnancy. With another court granting permission to terminate post 20-week foetus, the long-drawn debate over the much-needed amendment in the MTP Act has once again become the bone of contention.

In the light of the precedence established by Delhi Court, this post will attempt to briefly explain the MTP act and enunciate the loopholes of this 48 old law on termination of pregnancy.

What exactly does the MTP Act say?

Medical Termination of Pregnancy Act was passed in the year 1971 in the light of rising frequency and maternal deaths due to lack of proper amenities. MTP regulates the abortion provisions. Some of the hallmarks of MTP act are:

  • A doctor can perform abortion if the pregnancy is harmful to pregnant woman’s life or mental health. Or if there is good chance that delivery of the child would seriously affect her mental and physical being.
  • Pregnancy can be terminated by medical practitioner: (a) where the length of the pregnancy does not exceed 12-weeks (b) where the length of the pregnancy exceeds 12-weeks but does not exceed 20-weeks, only in special circumstances.
  • Pregnancy may be terminated in a hospital established or maintained by government, or a place approved by the government.

What are the problems with this law?

To begin with, this Act puts a bar on termination of pregnancy transcending 20 weeks. The reason behind this was that it was medically dangerous at that time (in 1971) to terminate pregnancy beyond that maturity period. However, medical facilities have advanced significantly since then and now it is possible to have safe termination of pregnancy beyond 20 weeks.

Also, this act offends the feminist perspective by allowing healthcare providers to have the final say on abortion instead of the concerned woman herself. It creates an environment where women feel like being at the mercy of their healthcare providers.

What is the current status of this law?

In 2014, the Ministry of Health and Family Welfare released a draft of the MTP (Amendment) Bill, 2014. It proposes changes that could initiate a shift in the focus of the Indian abortion discourse from healthcare providers to women. The Bill also expands the base of healthcare providers by including mid-level and non-allopathic healthcare providers.

Additionally, the clause extending the gestational limit could trigger ethical debates on eugenic abortions and sex-selective abortions. Stated simply, it means that this bill seeks to address the shortcomings of the previous law by empowering women to take decision about the termination of her pregnancy even beyond 20 weeks. This bill must be enacted soon.

In conclusion…

The High Court of Delhi has given a progressive judgement and reiterated the need for amendment in the MTP Act. The said law is outdated as explained above. The government has taken a positive step by proposing an amendment in the law. We hope to see the realization of this amendment soon.