ALLAHABAD HIGH COURT DECLINES REQUEST OF MOSQUES TO INSTALL LOUDSPEAKERS

The Allahabad High Court has recently passed an Order dated 09-01-2020 in Masroor Ahmad and Another vs State of U.P. and others, thereby declining to grant permission to two mosques to install loudspeakers, for the purpose of Azaan for Namaz on the ground that use of amplifiers, and sound equipments would cause aggravation of tension between Hindus and Muslims residing in the same area, which would lead to disturbance in peace, law and order.

In this case, although permission for the installation of Loudspeaker/ Amplifier/ Sound Producing/Music equipment was taken from the concerned authority under Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000. But the Allahabad High Court held that no religion preaches that prayers are required to be performed through loud speakers, voice amplifiers or by beating of drums. Thus, the High Court refused to lift the ban on use of unauthorized loudspeakers and amplifiers in a mosque in a village in Uttar Pradesh, imposed by Sub-Divisional Magistrate, Shahganj, District Jaunpur, on the ground that it may cause social imbalance.

It is believed by various experts that the High Court has set a good precedent by rejecting such frivolous petitions, as the loud speakers were invented in late nineteenth century and thus, it would be incomprehensible to claim the use of loudspeaker as an essential religious practice.

Riya Goyal

4th Year, Galgotias University

Intern, The Indian Lawyer

With

Harini Daliparthy,

Senior Legal Associate, The Indian Lawyer

CONCEPT OF MERCY PETITION, PRESIDENTIAL PARDON AND JUDICIAL REVIEW

Two Death Convicts in the Nirbhaya case had submitted Mercy Petitions before the President of India. Their Curative Petition was earlier rejected by the Hon’ble Supreme Court. Thus, submitting this Mercy Petition was the last legal remedy available to them.

After extinguishing all the reliefs available in the court of law, either the convict in person or any of his relative can submit a written mercy petition in writing to the President. Mercy petition is basically a relief sought by the convict that the death penalty given to him should be reconsidered or altered to life time imprisonment.

Mercy Petition: Provisions Under Indian Law

Article 72 of Indian Constitution grants power to the President to grant pardons, suspend, remit or commute sentences in certain cases. As per this power the President has sole authority to grant mercy petitions in criminal cases on the aid and advice of the Council of Ministers. Similarly, the Indian Constitution also grants power to the Governor as per Article 161 to grant pardons, suspend, remit or commute sentences of any convict for an offence against law or to a matter to which executive power of state extends.

In the case of Keher Singh Anr V. Union of India 1989 AIR 653, the Supreme Court observed that, “it is approximate that in the matter of life and personal liberty, another degree of protection should be extended by entrusting power to some high authority to consider the option of commutation. The power so entrusted is a power belonging to the people and lies in the highest dignitary of the State.

The President while exercising his power can also scrutinize the evidence on record. In doing so, the President cannot amend or modify or supersede the judicial record. Also, there is no right available to the person condemned to insist on oral hearing before the President.

Judicial Review of Mercy Petition   

According to Webster Dictionary of Law “Judicial Review is the power of a court to review the action of public sector bodies in terms of their constitutionality in some jurisdiction, it is also possible to review the constitutionality of law itself.” Judicial review in an independent judiciary is a fundamental feature, and it assures faith in the Constitution. 

The limits of Judicial Review as granted under Article 72 and 161 of the Indian Constitution have been outlined in the case of Maru Ram v. Union of India 1980 AIR 2147. The Supreme Court observed that all public power, including constitutional power should not be exercised arbitrarily or mala fide. The bench in Maru Ram case also noted that the power conferred by Article 72 is a highly privileged power vested by the Constitution in the highest functionary of the Union.

Judicial Review of the order of the President or the Governor under Article 72 or article 161 can be impugned on the following grounds: –

  • If the order had been passed without the application of mind
  • That the order is mala fide
  • That the order have been passed on extraneous or wholly irrelevant considerations.
  • That relevant materials have bee kept out of consideration.
  • That the order suffers from arbitrariness.

Procedure of Mercy Petition

In the case of Shatrughnan Chauhan & Anr v. Union of India Writ Petition (Criminal) no. 55 of 2013 certain guidelines for mercy petitions were laid down which are as follows: –

  • As soon as the mercy petition is received, the Ministry of Home Affairs should without any delay place it along with court records before the President for his consideration.
  • Rejection of any mercy petition should be communicated to the prisoner and his family members in writing.
  • Death Penalty convicts have all rights to receive a copy of rejection of their mercy petition.
  • Also, there should be a minimum 14 days interval between the rejection of mercy petition and execution of death penalty.

According to an information released by the Government under The Right to Information Act, out of 77 Mercy Petitions received 69 have been rejected by the presiding President between 1991 to 2010. Since independence a total of 308 mercy petitions have been have been received, out of which only 132 have been accepted and 440 have been rejected.  According to our Former President Mrs Pratibha Patil, “The Death Penalty does not serve the penological goal of deterrence any more than life imprisonment”.

Aakritee Gambhir

Associate

The Indian Lawyer

MINISTRY OF HOME AFFAIRS ISSUES REVISED GUIDELINES FOR MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

The Ministry of Home Affairs (MHA) has recently published certain comprehensive and revised Guidelines for Mutual Legal Assistance in Criminal Matters dated 04-12-2019 (Guidelines) on 08-01-2020. These Guidelines are aimed at streamlining the process of request for international mutual legal assistance in criminal cases including investigation, service of summons/notices/judicial documents, extradition of criminals, etc.  

In view of various Conventions, Reciprocal Arrangements, and Mutual Legal Assistance Treaties (MLATs) pertaining to criminal matters, that India has entered into with several countries across the world, these countries cooperate with each other in the following manner, in order to provide and obtain formal assistance in prevention, suppression, investigation and prosecution of crime, so that criminals do not escape the due process of law by taking refuge in other countries:

1- Letters Rogatory (LRs)- LRs are sent by a court of a member country to a court of another member country seeking mutual legal assistance in service of documents, taking of evidence, conducting investigation or prosecution in criminal matters such as money laundering, etc.

2- Mutual Legal Assistance (MLA) Request- An MLA Request is a formal request made by MHA under the provisions of any Convention and/or MLAT, with the Central Government of another member country, on the request of an investigating officer.

3- Service of summons, notices and judicial processes- A competent court in India may send a service of summons, notices, and judicial processes to MHA, which further forwards the same to the foreign country through its Embassy/High Commission/Diplomatic Channels in India or any other competent authority in such foreign country.

4- Informal requests- Informal request for mutual legal assistance in criminal matters may be made through INTERPOL channels.

In one such instance, the Indian Government had made several extradition requests to multiple countries to extradite Mr. Nirav Modi, the Fugitive Diamond Merchant, back to India to continue legal proceedings against him in the Punjab National Bank scam case in 2018.

Although in some cases, the requests for mutual legal assistance may be refused by MHA on the grounds that the execution of such request may impair sovereignty, security, public order and public interest of India or of the foreign country, etc, or the request made is not pertaining to any act or omission that does not amount to an offence under the ordinary criminal laws of India or of that foreign country, etc.

But so far, the Government has initiated various training programmes in coordination with various foreign experts, Central Bureau of Investigation (CBI), etc to train the Indian law enforcement agencies to handle the process of requesting and obtaining international mutual legal assistance in criminal matters, etc. This would help the Government to expedite the investigation procedure and the courts to decide and dispose of criminal matters in a speedy and efficient manner.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

THE CONCEPT OF PERSONAL INSOLVENCY IN INDIA

In the past, the Indian Parliament passed the Insolvency and Bankruptcy Code , 2016 (IBC). The Government had notified only the part on corporate insolvency. But as we moved further in time to 2019, the Government realised that if they did not notify those provisions that dealt with Personal Insolvency, guarantors of big corporates would go virtually scot free. Hence, in 2019 Personal Insolvency provisions were notified.

Personal Insolvency, if defined in simple words, would mean when a person is unable to honour a debt agreement i.e. when his debts exceed his income. As of now, Personal Insolvency is still at its initial stage in India and it requires time to be fully operational. In the latest amendment of 2019 in IBC, a Personal Guarantor is allowed to be sued for recovery of dues by creditors in the NCLT. A Personal Guarantor can now also move a petition for having himself declared insolvent. As per this amendment, the law seeks that both secured and unsecured debt of the guarantor would be covered under the head Personal Insolvency.

In terms of the amendments in Personal Insolvency, the IBC now provides process for dealing with default. The “Fresh Start Process” provides for post clearance of dues with creditors. The “Insolvency Resolution Process” provides for a mechanism for creditors and debtors to renegotiate a repayment plan and “Bankruptcy” provides for liquidation of debtor’s assets but this can only be set into motion when resolution process fails. Earlier the Law had designated “Debt Recovery Tribunals“ (DRT) as the adjudicating body having the wider presence than the “National Company law Tribunal” (NCLT) which earlier, only adjudicated for Corporate Insolvency but the 2019 Amendment in IBC, has designated NCLT as the adjudicating body granting relief to both creditors and personal guarantors for fast and easy disposal.

In the month of December, 2019, the first Insolvency Petition was filed, in Hyderabad NCLT’s Amaravti Bench. A Personal Guarantor by the name of Mr. Omkaram Venkata Ramana, who had named himself as the personal guarantor for five firms with a total default of more than Rs. 38 crores of bank loans filed a petition to initiate Personal Insolvency Resolution Process. Bank of India, the sole banker to the five companies, had earlier attempted auctioning the personal assets of the promoter offered as guarantee, but could not succeed. Latest amendment in IBC, has enabled creditors as well as personal guarantors to approach the Tribunal seeking to initiate proceedings against personal guarantors. Earlier lenders were moving to Debt Recovery Tribunals against the personal guarantors now the they can approach NCLT against personal debtors in order to settle claims in a time bound period.

In the words of Mr. Injeti Srinivas, Corporate Affairs Secretary, “Personal Insolvency regime is expected to be fully operational within a period of one year and a non-adjudicatory process is being worked out for entities having very small exposures“. Corporate Affairs Ministry is keen to develop a market place for stressed assets in order to achieve maximum participation and value of such assets. There are several challenges in the process of introduction of the Personal Insolvency Regime, as it is a very large subject because it will bring in every type of borrower in its ambit. The Corporate Ministry’s vision is to push the non-adjudication process that would be an online verification based system where the borrower’s assets and financial status could be ascertained and accordingly insolvency could be determined and relief could be granted. It further aims to include cross-border insolvency and group insolvency in the agenda.  

Though Personal Insolvency is at it’s very initial stage it brings hope for a number of lenders, who are stuck with insolvent companies and are backed by personal guarantors. As personal guarantors were not answerable to the NCLT before the 2019 amendment companies were taking advantage of the situation and were happy to be prosecuted under DRT as there is no time restrain.

Personal Insolvency was first introduced in Ireland in 2012. Personal Insolvency or Personal Insolvency Arrangement (PIA) that was first codified in Ireland under their Personal Insolvency Act, 2012. The act seems to have achieved its purpose as in the year 2019 alone, 1334 protective certificates were filed by the Personal Insolvency Practitioner (PIP) out of which 1197 arrangementswere sent for approval from creditors and a total number of 978 arrangements (Debt Relief Notice (DRN), Debt Settlement Arrangements (DSA) and Personal Insolvency Arrangements (PIA) ) were approved by the creditors. It is much hoped that India will also benefit by personal insolvency of guarantors.

Rishabh Mahipal

Associate

The Indian Lawyer

SUPREME COURT DISMISSES APPLICATION FOR AMENDMENT OF PLEADINGS AFTER COMMENCEMENT OF TRIAL

In a recent case of Pandit Malhari Mahale vs. Monika Pandit Mahale 2020, the Supreme Court passed an Order dated 10-01-2020, whereby the Court observed that an application for amendment of plaint can be allowed by a court even after the trial has begun only on the ground that such additional plea could not have been raised by the plaintiff before the commencement of trial and that the court is satisfied that such an amendment is necessary to decide the real dispute between the parties.

Generally, an application for amendment of plaint is made under Order VI Rule 17 of Civil Procedure Code 1908 as amended thereof, which provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

In the present case, a Suit of Partition was filed by the Plaintiff-Respondent. Upon reaching the stage of evidence, an Application for Amendment of Plaint was filed by the Plaintiff-Respondent, which was allowed by the Trial Court and subsequently, by High Court in Appeal, on the grounds such an amendment could not have been raised before commencement of trial.

Thereafter, the Defendant-Appellant filed an appeal in the Supreme Court against the Order of the High Court allowing the Amendment Application, on the ground that the amendment could not have been considered unless the court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

But the Apex Court held that no finding or reasoning has been given by the Trial Court and the High Court as to on what grounds the Courts are satisfied that in spite of due diligence, the Party could not introduce amendment before commencement of the trial, and thus, dismissed the Order of the Trial Court and the High Court.  

Priya Rana

4th year, Galgotias University

Intern, The Indian Lawyer

With

Harini Daliparthy

Senior Legal Associate, The Indian Lawyer

DELHI HIGH COURT UPHOLDS ARBITRATION AGREEMENT INCLUDING NON-SIGNATORIES

The Delhi High Court in the case of STCI Finance Ltd. v. Sh. Shreyas Kirti Lal Doshi & Anr. passed a Judgment dated 14/01/2020, where the High Court has reiterated the principle that the scope of an arbitration agreement is wide enough to include the non-signatories who are parties to a dispute in order to enable signatory parties to arbitrate the subject disputes. The Single Bench of Justice V. Kameswar Rao was hearing an Application filed by the Defendant under Section 8 of the Arbitration and Conciliation Act, 1996.

In the present matter the Plaintiff filed a suit for recovery of approximately Rupees Ten Crores. In the said case the Borrower Company stopped making payments to the Plaintiff Company under Loan Accounts resulting in overdue payments. A Demand Notice was issued by the Plaintiff for pending payments. The Defendants while placing reliance on Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification, 2013 contended that in view of the commonality of subject matter and transactions under the Loan Accounts including the Deeds of Guarantee and Share Pledge Agreements, it is a fit case for the Court to pass appropriate directions under Section 8 of the Arbitration and Conciliation Act, 1996 referring all the disputes between the parties to be decided by a sole Arbitrator. On the other hand the Plaintiff Company while referring to the case of SMS Tea Estates v. Chandmari Tea Company 2011 argued that the Supreme Court had held that even if multiple agreements have been entered into between the parties; Arbitrator can only be appointed with regard to the disputes relating to agreement containing arbitration clause. They further submitted that there was no arbitration clause in the Deeds of Guarantee, Facility Agreements, and as such an arbitration clause cannot be read into the same.

Dismissing the Application filed by the Defendants on the ground that it was misconceived the High Court held that in STCI Finance (supra) the Court had distinguished the judgment of Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification as in that case the Supreme Court held that a non-signatory or a third party could be subjected to arbitration without their prior consent but this would only be in exceptional cases. It would be essential for the Court to ascertain that there was a clear intention of the parties – both the signatory as well as non- signatory – to refer all disputes between all parties to the Arbitral Tribunal to resolve the disputes by arbitration. The Court would examine the exceptions on the touchstone of the direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject matter and the agreement between the parties being a composite transaction.

Hence the principle laid down in Chloro Controls (supra) that has made non-signatory parties, parties to an arbitration agreement, if there is commonality of subject matter has been followed. The said principle enables disputes to be resolved between non-signatories parties thereby bringing closure to disputes that hither to took years to be decided.

SUCHITRA UPADHYAY

5TH YEAR

GGSIP UNIVERSITY, DELHI

ACID ATTACKS: EVOLUTION OF INDIAN LAWS

Acid attack or acid throwing is a form of violent assault on the body of another by the use of hydrochloric, sulfuric and nitric acids, with the intention to disfigure, maim, torture or kill, the victim.

In the landmark case of Laxmi v. Union of India, 2014, an acid attack survivor, Ms. Laxmi Agarwal (Petitioner) had filed a public interest litigation (PIL) in the Supreme Court seeking ban on the sale and use of acid. The Apex Court passed an Order dated 18-07-2013 whereby the following guidelines were issued on restriction and regulation of sale of acid:

1- Over the counter sale is prohibited unless the seller maintains a register recording the details of the acid purchased, purchaser, reasons for such purchase, etc

2- Sellers shall sell the acid only after the purchaser has shown a photo ID proof and an address proof

3- Sellers shall declare the stocks of acid with the Sub-Divisional Magistrate within 15 days, otherwise, such stock would be confiscated and fine may be imposed on the seller

4- Sellers shall not sell the acid to any person below 18 years of age

5- Educational, research institutions, laboratories, hospitals, government departments etc would also have to keep a register of usage of acid, appoint a person who would be in-charge of safe-keeping of acid within such premises, etc

6- Government to provide funds under a separate scheme as compensation to acid attack victims or their dependents, which would be a minimum of Rs. 3 Lakhs, etc.

7- State Governments and Union Territories have to frame rules to regulate sale of acid and corrosive substance.

8- Government to work towards making acid attack offence cognizable and non-bailable.

Thereafter, amendments were made to the Criminal Laws, vide Criminal Amendment Act of 2013, which made following separate provisions for acid violence. Earlier, acid attack offence was considered under a general category of ‘grievous hurt’:

i) For voluntarily causing grievous hurt by use of acid, etc.— Minimum 10 years imprisonment, extendable to life imprisonment, and an amount of fine that would be just and reasonable to meet the medical expenses of the treatment of the victim

ii) For voluntarily throwing or attempting to throw acid, etc. –5 to 7 years imprisonment, extendable to life imprisonment, and fine.

iii) Compensation by State Government

The Courts have even gone to the extent of imposing death penalty on offenders who have committed the brutal act of acid attack, resulting in death. For instance, in 2016, the Bombay High Court imposed death penalty to an offender who committed the gruesome act of acid attack on the victim, namely, Ms. Preeti Rathi, which resulted in unbearable pain, loss of vision, face disfiguration, multiple organ damage, and death.

Thus, although there have been amendments in law, introduction of guidelines for regulation of sale and usage of acid, etc, but incidents of acid attacks have been on high. But it is hoped that the Government takes impromptu steps to curb such incidents and the Courts dispose of the matters in a fast track manner.

Riya Goyal

4TH Year Student, Galgotias University, Greater Noida

Intern, The Indian Lawyer

With

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

WHAT DOES CURATIVE PETITION MEAN?

In the recent times, one has heard the word curative petition several times as some of the Accused in the Nirbhaya Case have moved such a petition in the Supreme Court of India. A curative petition is the last resort available to a person before the Supreme Court of India.

The concept of curative petition is comparatively of recent times. Its’ jurisprudence has emerged from a Latin Maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. It is a discretionary power given to the Supreme Court that can be exercised in rarest of the rare cases.

The presence of this remedy is being developed with time through judicial precedents pronounced by the Hon’ble Supreme Court of India, to provide complete access to justice through a fair and just procedure under the law. Accordingly, its essence was found by the Supreme Court in case of Rupa Ashok Hurra Vs Ashok Hurra and Anr. ( AIR 2002 SC 1771),where the Court reconsidered its judgment in exercise of its inherent powers and laid down certain parameters that can be considered while filing and entertaining a curative petition under Article 142 of the Constitution of India, 1950.

This petition can be filed only when the final order/judgment is being pronounced by the Hon’ble Supreme Court and review petition against that final order/judgment is also dismissed. Thereafter, any person having a strong apprehension of any error, omission or mistake that has been committed in deliverance of a decision or a gross violation of the principle of natural justice can move such a petition Under Articles 129, 137, 141 and 142 of Constitution of India read with Order XLVIII of the Supreme Court Rules 2013.

For filing the curative petition, it is essential that it states the details of the judgment and final order against which a review petition has been filed and dismissed by the court. The curative petition must raise a question of law or laws of general public importance and at no point can it raise any facts in issue. The petition must state the same grounds as stated in the review petition filed earlier and must not state any new grounds.

It is also required that, a Senior Advocate needs to certify and point out substantial grounds for the petition to be entertained and the same will be reviewed by the three Senior-Most Judges of the Court alongside the Judges who passed the judgment and if the majority feels that there was a violation, then the curative petition would be heard by the same bench. However, Court can also impose exemplary costs on the petitioner if it finds any discrepancy during the proceedings.

Essentially, these Petitions are being heard by the Judges in chamber unless, it is specifically requested to be heard in an open-court. Also, the curative petition is not governed by the provisions of the Limitation Act but it must be filed within a reasonable time being the last legal remedy available to the aggrieved person.

Therefore, the provision of curative petition renders every aggrieved person to raise substantial grounds towards their innocence in order to prevent injustice. It is a constitutional right based on principles of natural justice, fair trial and lawful administration.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

SUPREME COURT DISMISSES CURATIVE PETITIONS AND UPHOLDS DEATH PENALTY OF NIRBHAYA CASE CONVICTS

Recently, a 5-Judge Supreme Court Bench has passed an Order dated 14-01-2020, thereby, rejecting the Curative Petitions filed by two of the convicts in the Nirbhaya case, namely, Mukesh Singh and Vinay Sharma, and further, rejecting the Application for stay on execution of death sentence issued by the Trial Court on 07-01-2020.

Earlier, the Fast-Track Court had issued the Order of Death Penalty dated 13-09-2013 to all 4 adult perpetrators, namely, Mukesh Singh, Vinay Sharma, Akshay Thakur and Pawan Gupta (Convicts), in the 2012 Nirbhaya case for the offence of brutal gangrape, unnatural offence and murder of the deceased victim (Nirbhaya), and attempt to murder her male friend. The said Order was upheld by the Delhi High Court on 13-03-2014 and subsequently, by the Supreme Court on 05-05-2017.

Thereafter, three of the Convicts, Mukesh Singh, Vinay Sharma and Pawan Gupta had filed Review Petitions in the Supreme Courtseeking review of the Order of Death Penalty upheld by the Supreme Court on 05-05-2017. But a 3-Judge Bench of the Apex Court dismissed the said Review Petitions vide Order dated 09-07-2018 on the grounds that the submissions and evidences put forward in the Review Plea were the same as in the Appeal in 2017 and that the Petitioners could not be allowed to re-argue the appeal on merits of the case, after the case has already been looked into by the Trial Court, the High Court and the Apex Court at length.

Fearing more delay in execution of death penalty of the 4 Convicts, Nirbhaya’s parents had approached the Patiala House Trial Court on 13-12-2018, seeking execution of the Order of Death Penalty dated 13-09-2013 at the earliest.

Thereafter, one of the Convicts, Vinay Sharma had filed a Mercy Petition with the Delhi Government on 08-11-2019, which was forwarded to the President of India on 06-12-2019. The same is still pending for decision by the President.

Meanwhile, one of the Convicts, Akshay Thakur, filed a Review Petition on 10-12-2019 in the Supreme Court seeking review of the Order of Death Penalty upheld by the Supreme Court on 05-05-2017, which has been dismissed by a 3-Judge Bench of the Apex Court on 18-12-2019, on the grounds that the submissions and evidences put forward in the Review Plea were almost a repetition of what were argued in the Appeal and as such dismissed by the Trial Court, the High Court and the Apex Court.

Thereafter, the Additional Sessions Judge, Patiala House Court in Delhi had issued Death Warrants to all 4 Convicts vide Order dated 07-01-2020 for their hanging on 22-01-2020 at 7 AM, which has been postponed to 01-02-2020 at 6 AM vide Order dated 17-01-2020. The said Order dated 07-01-2020 has been challenged by one of the 4 Convicts, Mukesh Singh, in the Delhi High Court on the ground that the Convicts are still left with a remedy of filing mercy petition with the President, but the  issue of Death Warrants would render their Constitutional Right of seeking mercy from the President infructuous. But the Delhi High Court dismissed their challenge on 15-01-2020, directing them to approach the Sessions Court which passed the Impugned Orderdated 07-01-2020.

Meanwhile, two of the Convicts, Mukesh Singh and Vinay Sharma had filed Curative Petitions in the Supreme Court to review the Order of Death Penalty upheld by the Supreme Court on 05-05-2017, and reconsider their submissions. But a 5-Judge Bench of the Apex Court dismissed both the Curative Petitions on 14-01-2020, on the grounds that there was no violation of principles of natural justice in dismissing the Review Petitions and upholding the Order of Death Penalty on 05-05-2017, and there were no additional contentions of the Convicts in the Curative Petitions that had not been dealt at length by the courts, etc.

Recently, one of the Convicts, Mukesh Singh, had filed a Mercy Petition on 14-01-2020, which has eventually been rejected by the President on 17-01-2020, as per various newspaper reports.

Thus, rest of the Convicts have been left with the following legal remedies which may be exhausted before they are hanged to death on 22-01-2020 at 7 AM:

1)Vinay Sharma- Await the decision of the President about grant or rejection of his Mercy Plea dated 08-11-2019

2) Akshay Thakur and Pawan Gupta –

i) Curative Petition may be filed in the Supreme Court to review the Order of Death Penalty upheld by the Apex Court on 05-05-2017

ii) Mercy Petition may be filed with the President

Thus, amid nationwide outrage over multiple cases of rape and murder, the country awaits the decision of the President in the mercy petitions, if at all filed by the other Convicts, and the execution of their death sentence on 22-01-2020 at 7 AM in Tihar Jail.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

GUEST POST CONTRIBUTION:

ALL YOU NEED TO KNOW ABOUT THE CITIZENSHIP AMENDMENT ACT 2019

The Constitution of India under Part II (Article 5-11) provides provisions regarding citizenship. Article 11 gives the Parliament the power to make provisions regarding the acquisition and termination of citizenship and other related matters. However, the Parliament must not derogate anything contained in the Part II while making such provisions. The Citizenship Act of 1955 (further referred to as ‘the Act’) was the result of such power of the Parliament as provided by the Constitution. Thereafter, the Act has been amended in 1986, 1992, 2003, 2005 and 2015.

Post-independence, India has witnessed an influx of religious minorities from neighboring countries whose fundamental rights have been suppressed. Recently, a new Citizenship Amendment Bill, 2019 was introduced and passed by the Lok Sabha on 9th December 2019, passed by Rajya Sabha on 11th December 2019 and the President gave his assent on 12th December 2019 (further referred to as ‘the Amendment Act’).

Following are the amendments which have been brought into the Act by the 2019 Amendment Act:

1) Definition of “illegal migrant”

Section 2(1) (b) of the Act provides that a foreigner who has entered into India­­-

  • without a valid passport or other prescribed travel documents, or
  • with a valid passport or other travel documents whose permitted time limit has expired

will be considered as “illegal migrant”.

The 2019 Amendment made certain exclusions to the definition of illegal migrant which are:

Every person belonging to any of the religious communities of Hindu, Sikh, Buddhist, Jain, Parsi or Christian from Afghanistan, Bangladesh or Pakistan who has entered into India on or before 31st December 2014.

Further, the insertion of Section 6B allows citizenship to those excluded from the definition of illegal migrant by granting a certificate of registration or naturalization and any proceeding pending against any such person concerning illegal migration or citizenship shall stand abated.

Also, Section 6B(4) provides that tribal areas of Assam, Meghalaya, Mizoram or Tripura which are specified in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” as notified under the Bengal Eastern Frontier Regulation, 1873 are exempted from applying the provisions regarding citizenship provided under the 2019 Amendment.

Additionally, the amendment, by the addition of Clause (eei) in Section 18(2), provides that the Central Government may make rules regarding conditions, restrictions and manner for granting certificate under Section 6B(1) for fulfilling the purpose of this amendment.

2) Cancellation of Registration as Overseas Citizen of India

Among various other grounds for the cancellation of registration as an OCI provided under Section 7D, another ground has been added through Section 7D(da). It says that the registration of an OCI cardholder may be cancelled if he violates any of the provisions of the Act or any other law in force- but only after being given a reasonable opportunity of being heard.

Attention must be brought to this amendment as it provides wide discretion to the Central Government without prescribing for any further rule in this regard.

3) Amendment to the Third Schedule

The Third Schedule of the Act specifies qualifications for naturalization of a person. Amendment to Clause (d) by the insertion of proviso states that persons belonging to the above-mentioned six communities from Afghanistan, Bangladesh or Pakistan are only required to-

  • have resided in India, or
  • to have been in the service of Government in India

For the aggregate period of at least five years during the fourteen years immediately preceding twelve months preceding the date of application made for the grant of certificate of naturalization.

This has resulted into the effect that any person belonging to any of these six communities from any of these three countries who has entered into, and has been residing in India on or before 31st December 2014 shall be eligible to be a citizen of India. Before this amendment, the said aggregate period was eleven years for every such person otherwise eligible for naturalization.

Since the Bill has been introduced in the Lok Sabha, people including political parties from opposition and students’ bodies all over the country have started protesting and showing their outrage towards the Bill. However, the reasons for these protests are two-fold:

Firstly, protests are coming up from Assam and other Northeast states as they fear that it would result in an influx of religious minorities from Bangladesh into their states which will destroy the ethnic culture and interests of the indigenous communities in the Northeast.

Secondly, people from all over the nation are coming up for protest mainly because of non-inclusion of the Muslim community into the special provision regarding citizenship which has been granted to other six religious minorities from the three neighboring Islamic nations. The protesters consider it to be violative of Article 14 of the Constitution and its basic structure which provides for India to be a secular State.

However, these protests have turned up into violence on the part of both the protesters as well as the Policing Department who were supposed to control the situation. The protests have taken up this form because majority of people- including the protesters from various students’ bodies and universities across the nation- do not know exactly what amendments have been brought into the Act and what is more saddening is the fact that they do not even care to get into the root of their causes. They are simply listening and responding to the provocations by their religious or political heads and are just being the sheep in the herd. Such action is impractical and is leading us to nowhere. The situation has even more aggravated by the spread of rumors and fake news over various social media platforms also by the news media and political leaders from various political parties as such things are blatantly being followed and shared by the general public. This has made the situation worse and led to the increased gravity of concern needed for what the nation is currently facing.

Therefore, certain clarifications are the need of the hour in this regard. Firstly, the amendment does not change or remove other ways available in the Act for the grant of citizenship to the people belonging to any faith or religion. It has only provided for special provision for citizenship to religious minorities who have fled their country namely Afghanistan, Bangladesh and Pakistan from religious persecution or from the fear of such religious persecution. Secondly, the amendment only deals with providing citizenship to religious minorities; the procedure for persecuted Muslims to seek asylum in India is still the same and the Amendment Act does not prohibit in any way the grant of asylum to Muslims.

Among other debates over the Amendment Act, one was that not including religiously persecuted Sri Lankan Tamil Hindus into the Amendment Act is discriminatory to which Mr. Harish Salve has very well put forward as to why it is not the case, saying- “a law which addresses one evil need not address all possible evils or similar evils- that’s a well-settled law under Article 14 and that is never a ground to challenge a law”.

Amidst these protests, the Supreme Court finally agreed to hear the petitions challenging the Citizenship (Amendment) Act, 2019 on December 18, where it refused to stay its implementation. The Court, then, issued a formal Notice to the Government where it has admitted 59 Petitions filed by people challenging the constitutional validity of the Amendment Act and the Apex Court has further agreed to hear these Petitions on 22nd January 2020.

Payal Goyal