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The delusion of inclusivity in the National Education Policy, 2020

Delving into the aspect of digitisation, NEP 2020 has called for substantial investment for upgrading the digital infrastructure and for establishing digital repositories, online teaching platforms, high-quality online content, and so on. The policy has strongly addressed the significance of technology and has intended to introduce the pedagogy for online teaching and learning. The National Educational Technology Forum (NETF) is an innovative component of the policy through which the field of research has been centralised and which aims to channelise the dissemination of academic information.

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The National Education Policy (hereinafter referred to as “NEP”), approved in July 2020, has espoused notable changes in the education system in India. The committee headed by former ISRO Chief K. Kasturirangan has advocated a holistic approach to address the incumbent challenges that are being faced by the marginalized sections of the society. It is aiming at a complete restructuring of academia with the cardinal intent to ensure equity and inclusivity. Deliberating on the issue of cultural and economic inclusivity, it would be prudent to analyze the surrounding factors associated with the aspects of digitization, language, and privatization in the sector of education.

Delving into the aspect of digitization, this policy has called for substantial investment for upgrading the digital infrastructure and for establishing digital repositories, online teaching platforms, high-quality online content, and so on. The policy has strongly addressed the significance of technology and has intended to introduce the pedagogy for online teaching and learning. The National Educational Technology Forum (NETF) is an innovative component of the policy through which the field of research has been centralized and which aims to channelize the dissemination of academic information.

The aforementioned issue is sorely affected by the aspect of accessibility that is strongly hindered by the pre-existing rural-urban divide. Digital education is not only about lecture videos but also about the various digital platforms, technology, tools, interactivity, curation, content, and a lot more. The lack of resources to provide digital education will further make the rural versus urban divide even stronger on account of absent or inefficient internet connectivity in the rural areas. According to data released by the National Sample Survey Office (NSSO), only 4.4% of rural households and 23.4% of urban households own computers. Out of which only 14.9% of the rural households have an internet connection in their computers. It was quite surprising to note that 70% of the rural population lacks access to an active internet facility, as per a report by Nielson in 2019. The NITI Aayog in one of its reports, namely “Strategy for New India@75” had asseverated that more than fifty-five thousand villages are in need of mobile network coverage. The factual scenario has been largely overlooked, and the present allocation of funds to the sector would not suffice for such drastic infrastructural change. The ongoing pandemic situation has highlighted the glaring inequalities among the array of opportunities for learning and educational support.

In the landmark case of State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., it was held that “There has been a campaign that right to education under Article 21-A of our Constitution be read in conformity with Articles 14 and 15 of the Constitution and there must be no discrimination in the quality of education….” Going by the aforementioned dictum, it is an obligation on the State to effectively repress any form of inequality that might emerge out of its policies. Addressing the digital divide in the nation, there have been notable suggestions of the use of television and radios for the broadcasting of educational programs but how far will it be successful in bridging the digital gap is still a matter of concern.

In consonance to the first NEP, the continuance of the Three-Language Formula (hereinafter referred to as “TLF”) is a notable feature in the present NEP, 2020, which recommends mother tongue as the prescribed medium of instruction. According to the Census released in the year 2011, there are 270 identifiable mother tongues; however, only 47 of them were used as mediums of instruction in Indian classrooms as per a 2017 study. It is not feasible for teachers to impart lessons in so many languages as students often have different mother tongues. It is not a viable option for those children whose parents have transferable jobs. Moreover, students often migrate to other States as well as other countries to pursue their higher education and under such a scenario, it is imperative to have a common language for classroom interaction. Most of the academic resources are available in English which makes it all the more important to have a good grasp of the subject. Even within the country, it is not feasible for every university to have faculties who can explain in so many regional languages. The aforementioned contentions portray the problems that shall be created due to the implementation of TLF.

While the government intends to upgrade the education system and match it to the global standards, making English optional is worrisome for the reason that English is a global language. It is important to formulate the academic curriculum in consonance with the requisites imposed by the industries. From a perusal of the basic requisites imposed by the employment sector, it is discernible that candidates who are affluent in English have always been preferred and such requirement is mandatory in the majority of jobs, especially in the corporate sector. This is the cardinal reason why parents strive to get their wards enrolled in an English medium school. Although the policymakers had the intention to make way for the vernacular subjects, one also needs to consider the opportunities available. From such a viewpoint, the dominance of English is quite vivid, and people with no access to English are often excluded from all spheres of socio-economic and political life. Any form of detachment from English will thus create a huge disparity among the students.

Another striking facet of the policy is its attempt to shore up the involvement of private bodies, which was once criticized when brought forth by the policy of 1986. The concept of “alternative models of education” has eased the statutory restrictions and has thereby created a convenient road map for the “non-governmental philanthropic organizations” in the establishment of schools. To establish private schools, the policy has not sufficiently emphasized the strict adherence to the various norms enumerated in the Right to Education Act (hereinafter referred to as “RTE Act”). As a consequence, certain states like Himachal Pradesh which had done away with one teacher schools will again be pushed back into promoting such educational inequity. This aspect brings forth a reasonable apprehension that certain individuals camouflaged under the garb of the term “public-spirited private” might misemploy the provisions of the policy to proliferate their profits. The policy has inconspicuously made enough room for them as it states, “…the encouragement and facilitation of true philanthropic private and community participation.”

Furthermore, extending the scope for autonomy will empower the colleges to initiate self-financed courses and indiscriminately enhance the fee structure. This unhindered authority will promote inequality within the sector, which will surely affect the outreach of higher education among the lower class. Government scrutiny, coupled with strict regulations is of paramount importance to ensure a preventive and punitive framework to subvert any high-handedness by the private bodies.

Deliberating on the schooling system, it has been observed that the majority of government schools have been infamous for their outdated infrastructure, the dearth of well-equipped laboratories, and lack of opportunities in non-conventional subjects. These factors cumulatively compel the students to opt for private schools which charge significantly higher than the government ones. In India, at least 45% of the school enrolment is in private institutions. For the professional courses, 72.5% of the undergraduates are enrolled in the private sector while for the post-graduate students it is 60.6%. The above statistics substantiate the high dependency of parents on private institutes which makes it all the more important to cap the educational charges, otherwise, quality education shall remain a privilege accessible only by the rich and the urban middle-class students. Although some states like Gujarat have passed laws to regulate the fees chargeable by private schools, it still imposes a financial burden on the majority of the Indian population. Under such a scenario, the policy should have ensured drastic improvisation in the government schools and institutions so that the commoners considered them at par with the modern private institutions. Privatization will upgrade the quality of education in the country, but it will not cut the Gordian knot which led to the enactment of the RTE Act. To substantiate further, it would be appropriate to bring forth the views of the United Nations Special Rapporteur on the Right to Education, Mr. Kishore Singh, who had stated that, “Privatisation negatively affects the right to education both as an entitlement and as empowerment. It breeds exclusion and marginalization, with crippling effects on the fundamental principle of equality of opportunity in education.” Instead of privatization at such a large scale, it would have been more pragmatic if education at all levels could have been enclosed as a legal right. Without this, this imminent commercialization of education is bound to affect the Constitutional ethos of equality and inclusivity.

The apparent outcomes of the policy seem contradictory to the goal of ensuring quality education to all. In a country where nearly 50% of the students depend on free education, the increasing intervention of corporates in the education system is not a viable remedy to its core problems. Moreover, the implementation of TLF will lead to several difficulties, as this formula is an outdated solution to multilingualism and to the idea of having a connecting language in this diverse linguistic demography called India. Thereby, the policy appears to be antithetical to the very core idea of inclusivity.

The continuance of the Three-Language Formula is a notable feature in the present NEP, 2020, which recommends mother tongue as the prescribed medium of instruction. According to the Census released in the year 2011, there are 270 identifiable mother tongues; however, only 47 of them were used as mediums of instruction in Indian classrooms as per a 2017 study.

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REFORMATION IN INDIA’S PUNISHMENT AND SENTENCING POLICY: A SINE QUA NON

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“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery system, but in our country, it is the weakest part of the administration of criminal justice.”

– Soman v. State of Kerala

The above mentioned lines are very well depicting the significance of awarding proportionate punishments in the domain of criminal justice system. At the same instance, it is showing its current situation. Nowadays, the problem that is underlying in the criminal law is that the very purpose of punishment is not being fulfilled. Most often, Punishment is considered as the stage where all functionaries as defined by the Criminal Procedure Code, 1973 (2 of 1974) as well as the victim and the convict acquired the central position. It serves as a link between the criminal justice system and the society as “Justice must not only be done, but must also be seen to be done”. Punishments play a guiding role in avoiding harm to our society, in proper implementation of morals and values and in attaining a peaceful society.

This is not something that is recently developed. From ancient times, the concept of punishing the person who breaches the rules and regulations were in existence. Since then, this mechanism was used in order to regulate the social order and maintain harmony and peace in the society. Back then, the provisions of punishment and sentences were more stringent so as to set the example, giving it the deterrence effect. With the change in the perspective of the society and development, this notion of punishment became rational and tilted more towards the concept of reforming the convict rather than deterring them. Punishments can be divided into various types such as deterrent, rehabilitative, restorative and retributive. The purpose of each type of punishment is different but the ultimate goal is same, that is, to safeguard the society. All this will become crystal clear when in the initial section of this article, we will carefully analyze the meaning of sentence and punishment and policies, thereof, prevalent in India. This will pave the way for the discussion of major challenges faced by current sentencing policy and the need for well-defined sentencing policy as in England, Whales and America. The concluding section of this write-up will talk about the measures enshrined by the legislature, the judiciary and the committees also focusing upon their suggestions.

PUNISHMENT & SENTENCING: MEANING

Punishment and Sentencing, though, two distinct entities but at the end, they both form the union. Most often, they are used interchangeably which lead to contradictions and confusions. That’s why, here, it becomes essential to know what exactly punishment and sentencing constitutes and how they differ from each other.

According to Britannica“Punishment is the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the transgression of a law or command). Punishment may take different forms ranging from capital punishment, forced labour, flogging, imprisonment and fines.”

Macmillan Dictionary defines the term Sentencing as “an occasion when someone who has been found guilty in a court of law is told what their punishment will be.”

In general parlance, ‘Punishment’ is a method which is legally approved to control the task of crime. ‘Sentences’ are statements contained in the judgments which lay out the punishments for a particular offence according to the law. And, when the sentences get operationalized, it is known as ‘punishment’. The term ‘Punishment’ can be considered as the way of not only penalizing the one who commits any guilt but also a process to prevent the offender repeating further commission of heinous crimes. Thus, it can be rightly said that both sentences and punishments are closely interlinked, where former one is said to be the predecessor in order to actually inflicting the latter one.

SENTENCING AND PUNISHMENT POLICY: FRAMEWORK

Every country has a different set up of criminal justice system. Some are more focused towards harsh punishment that should be inflicted to the perpetrators of the crime where as some nations are concerned about rehabilitating or reforming the convict. Some nations are more concerned about the victims whereas some are concerned about the offenders. However, sentencing and punishing the criminal is most important component of any criminal justice process. For imposing accurate, just and proportionate punishment, a systematic procedure is something must that should be formulated. This structured process adopted by a specific country commonly known as ‘sentencing policy’. The sentencing policy is the culmination of many things like it contains the formula in order to calculate the right or appropriate punishment for a particular offence. Also, it reflects certain principles and other factors which must be taken into account by the court while deciding punishment. Thus, the prime objective of the justice system of any nation is to adopt a fixed regime of sentencing policy which, in turn, regulates all the inhumane activities happening in the society.

Indian justice system stick towards the reformative approach of giving punishment where primary aim of law is to promote rehabilitation, re-educate and reshape the personality of the criminal. Despite of such an inspiring approach, still, there exists no strict set of guidelines for regulating the sentencing policy in India. This is considered as a major lacuna, which not only hampers the basic purpose of criminal justice delivery system but also give rise to numerous violations of various fundamental and human rights. As said by the prominent judge D.P. Wadhva J, “Reformative theory is certainly important but too much stress to my mind cannot be laid down on it that the basic tenets of punishment altogether vanish.” However, the main legislations in India governing the sentencing and punishment system as well as criminal law are The Indian Penal Code, 1860 (IPC), The Indian EvidenceAct, 1872,The Code of Criminal Procedure, 1973 (CrPC),Probation of Offenders Act, 1958. Some provisions relating to Indian punishment and sentencing are described below-

Section 53, Chapter III of The Indian Penal Code, 1860 specifically states the different kinds of punishments which can be given by the Criminal Court to the offenders liable for various offences. The six mentioned punishments are–

1) Death

2) Imprisonment for life

3) Imprisonment – Rigorous with hard labour or Simple

4) Forfeiture of property

5) Fine

According to the Section 60 of the IPC, it is the discretion on the part of the competent court to decide the description of the sentences to which an offender is punishable. Further, it lays down the following types-

1) Wholly or partly rigorous; or

2) Wholly or partly simple; or

3) Any part to be rigorous and the rest are simple.

Section 235 of CrPC talks about judgment of acquittal or conviction under which it ensures that first accused will have an opportunity of last say then the judge after adjudicating upon relevant mitigating and aggravating factors shall pass sentence on him.

Section 354(1)(b) of the CrPC impose duty on judges to record the reasons for the decision of awarding a particular sentence and clause (3) of the same section states that whenever the conviction is for an offence punishable with life imprisonment or death penalty, special reasons must be recorded for passing such sentence.

SENTENCING POLICY: CHALLENGES AND ISSUES

Prima Facie, the existing sentencing policy does not seem to contain any flaws in it. However, a careful study shows that there are many challenges faced by this unregulated policy of sentencing. Let’s throw some light on the issues faced due to the lack of pronounced sentencing policy in India. The defects can be broadly categorized into following heads –

• Absence of fixed punishment: Under the Indian Criminal Law, the pattern that is prescribed for the punishments of all crimes contains only minimum and maximum penalty for a particular sort of offence. Due to this, a wide gap is generated which majorly affects the administration of sentencing. Exactlywhat sentence should be given from this gap to the offender solely depends on the judge’s discretion. Thus, judge while deciding the cases and awarding the punishments enjoys the latitude of power.

• Discretion of Judge: In India, no doubt several general factors such as severity, liability, guilty mind, etc. must be taken into account by judges while concluding cases. However, final decision is based on the judge’s personal experience, prejudice and considerations. Here, it is not wrong to refer judge as a king because the ultimate discretion lies in his hand only.

• Lack of consistency and faulty rationales: Due to the lack of structured guidelines, many times conflicts and contradictions arises when the courts awards different sentences in cases having almost same circumstances, using different reasoning. This leads to the inconsistency.

• Lack of binding force: While the court from case to case attempt to create a framework to limit discretion of judges and prevent arbitrary award of sentences but the larger bench observed that guidelines mandated by judiciary would go against the intent of legislature. This is the reason why, the apex Court highlighted that guidelines are indicative rather than exhaustive in nature. Therefore, courts have not followed their own sentencing guidelines strictly.

• Immense Disparity and Discrepancy: It has been noticed that in many cases judges imposes the different type of sentence on offenders while being tried under the same offence. This is because of the fact that every judge has their own considerations and reasons to believe whether a particular factor constitutes aggravating or mitigating circumstances for a particular case. Thus, due to the discrepancy and disparity, there exists an imbalance in the criminal justice system which is highly undesirable. As a result of it, offenders spend unnecessary time in prison.

• Indefinite and Scattered procedure: In India, the procedure of criminal law is disintegrated into enormous sections such as CrPC has 484 sections, 2 schedules which in turn contains 56 forms and IPC has more than 500 sections which increase the burden that is already present on the judges due to vast range of pending cases.

• Not defined reliable standards of proof: When it comes to produce sentencing material upon which Court will rely for giving the sentence to the accused still the Courts in India have not well established reliable standards of proof.

• Extracting sentencing material: Indian Courts have placed the whole burden of producing the sentencing material on the parties. If any of the party is not able to produce the sentencing material then the Court without any hesitation take the ex-parte decision. In many instances, the decision is delivered after only considering aggravating factors because of the simple reason that the defence have not produce sentencing material on mitigating circumstances with respect to the accused.

• Ambiguity in the quantum of sentences: In hierarchy of the judicial system, the quantum of sentences entirely changes from up and down. In absence of any proper guidelines, the Trial Court, the High Court and the Supreme Court mostly differ in awarding sentences, thereby causing confusion.

These challenges throw a serious concern on the part of the Indian legislature. This gives a red signal to the Parliament and other authorities to formulate a well-structured sentencing policy to safeguard the rights of the parties involved in a particular case.

NEED FOR STRUCTURED SENTENCING POLICY

From the above presented material, it can rightly be inferred that in India, there lies a huge disparity, inconsistency, arbitrariness and unguided discretionary power when it comes to deciding the punishment and awarding a sentence for a particular offence. It is an undisputable fact that there is a dire need of regulated sentencing policy for curtailing number of lacunas that are already discussed above. There exist the need of well-defined policy for sentencing and punishment even after the completion of the trial while determining the probation period of offenders. Section 360 and section 361 governs the principle of releasing the convicts on the basis of good behaviour and conduct and also states that special reasons must be recorded for the same. Here again, there is noclear-cut definition of ‘good conduct’, it varies from one jail authority to the other and also depends on the circumstances and type of offence committed by the offender. The implementation of the same legislation over two persons resulting in the different consequences despite of having same set of circumstances violates the right to equality defined under article 14 of Indian Constitution. When the person detained in the custody for a longer term than required, it violates another constitutional right. Thus, here, it becomes important to implement the policy which is well regulated, formulated and structured.

COMMITTEES’ REPORTS

Apart from the members of legal fraternity such as lawyers, advocates, judges, activists, various committees also recognized the need for a statutory sentencing policy. On various occasions, several committees have emphasized on the need of well-regulated policy for governing the sentencing and punishment system in India. The committees also stated that punishment should not be harsh rather it must be moderate enough to be effective. The reports of the committees suggest various other aspects which will improve the sentencing and punishment mechanism. In general, committees have pointed out the need to adopt such system that will ensure certainty during the whole process of giving sentences. Let’s briefly take alook on the report published by various committees –

In 2000, the Ministry of Home Affairs established the Committee on Reforms of Criminal Justice System, popularly known as the Malimath Committee for giving recommendations on the prevalent system of criminal justice. In March 2003, Committee issued the report which is of the view that despite of having provisions of maximum and minimum punishment in the Indian Penal Code, the judge enjoys the wide discretion within the statutory limit while inflicting sentences. With regard to selecting the most appropriate sentence, there is no proper guidance provided anywhere for the judges. The members of committee went on to criticize this unguided power and felt the need to minimize it to the some extent by using the law force and authority. Further, the Committee also noticed the fact that not every judge has the same set of mind and attitude while deciding the sentences, for instance, something may be grave for one judge but at the same time may not be as grave for other one. For the depth study of this matter, committee asserted that there is a requirement of an expert committee, which will evaluate the whole concern. This committee consisted of experts pointed out the need for a new code which classify the offences other than the parameters of cognizable and non- cognizable and a policy having the goal of social welfare should be adopted.

The Law Commission of India in its 47th report by reasserting the same states that an appropriate sentence is a culmination of different numerous factors such as the nature and circumstances under which offence is committed; the age, background, mental health, character, education, etc. of the offender; prior criminal record of the offender; prospective of rehabilitation, training or treatment and so forth. Further, the commission recommended for a committee that must be statutory in origin, to lay out the regulation under the Chairmanship of a former judge of Supreme Court or a former Chief Justice of a High Court, whosoever experienced in criminal law and with such other member as necessary. The summary of the report states that there should be a punishment harsher than imprisonment for life but at the same time it must kept in mind that it should be lenient than capital punishment.

Later, the Committee on Draft National Policy on Criminal Justice, popularly known as the Madhava Menon Committee also recognized the need to have a radical change in the law of sentencing. The committee in its report states that there is a need to re-think on the philosophy of sentencing in the criminal justice administration. Equality in every aspects of sentencing must be pursued vigorously. In news report of October 2010, the Law Minister stated that Government of India is in a stage of preparation where it is planning to establish ‘a uniform sentencing policy’ similar to the policy of that USA and UK. However, even after all such recommendations, no effort has been taken towards its creation.

JUDICIAL VIEWS ON SENTENCING POLICY

While the legislature has not given any particular guidelines regarding the sentencing and punishment, the higher Courts from time-to-time have enunciated certain principles regarding this. The Indian Courts, over the period of time, through inconstant and faulty decision making process have indirectly pointed out the need for a sentencing policy. The Courts recognizing the absence of any such regulatedpolicy have provided judicial guidance by setting out certain factors that courts must look into while deciding punishments.

In Soman v. State of Kerala the Court put emphasis on the principles such as proportionality, deterrence and rehabilitation that need to be taken into consideration while giving judgment. Here, proportionality factor also contains the mitigating, aggravating and such other factor. Also,the Court noted that it is not good that our criminal legislation has no legislative or judicially laid down regulations to guide the court trial.

Further, most importantly the court in the State of M.P v. Bablu Natt said that the imposition of the principles laid down in the above case vary from case to case and depend on facts and circumstances of each case.

Moreover, the apex court in the Rajendra Pralhadrao Wasnik v. the State of Maharashtra acknowledge these above mentioned principles but at the same time held that since they are not absolute rules, the judiciary cannot be restrained with them.

In the case of State of Punjab v. Prem Sagar,it was pointed out by Justice S.B. Sinha that our legal system has so far not been able to develop certain principles as regards of sentencing and even the apex Court just made observations to this regard and left the matter untouched whereas other developed countries have done so.

In the famous case of Bachan Singh v. State of Punjab, the Hon’ble Supreme Court apart from the constitutionality of death penalty also addressed on the issue of lack of sentencing guidelines. The majority is of the opinion that it is upon the legislation to standardize the sentencing discretion if it deems fit. However the Court went ahead and formulated the guidelines for imposing death penalty and specifically defining the term ‘special reasons’ in Section 354(3) of CrPC thus set forth the doctrine of ‘rarest of rare case’.

Later, the court in the case of State of Madhya Pradesh v.Mehtab, pointed that there is a development of guidelines by judiciary, but the implementation is so far from reality which raises the major concern regarding the methodology of sentencing in India. Also,it stated that the development of a strict policy would lead to an obstruction of justice. So it is important to have a look on a larger picture which will improve our justice system and a major method through which same can be achieved is the development and implementation of a uniform sentencing policy.

CONCLUSION

Indian criminal justice has no doubt adopted the mechanism of sentencing as a restorative justice. But it is not considered much by the judges. Indian system, depending upon its convenience often fluctuatesbetween the three theories of punishment, namely, deterrence, retributive and reformative. This itself shows that justice system, particularly criminal, is in a state of ambiguity and is also directionless. There is a huge docket explosion in the statistics of the crime rate all over the world and India is no exception. Apart from this, India has also been experiencing an alarming increase in delay and arrears of pending cases. There are many reasons responsible for this problem. One of the major concerns is requirement of a fixed sentencing and punishment policy, a concept on which this whole article is based.

As we have already discussed, in detail, the number of infirmities faced by the current sentencing and punishment policy. There exists an exigency to fix those shortcomings to get an effective policy. There is a need for a policy which strikes balance between the rights of an accused and the rights of the citizens. So this is the high time that legislature must come forward to prepare a road map and take vital steps to draft a systematic and clear policy. While formulating a policy, the legislature should also take aid from the successful policies of various other jurisdictions such as US, UK and embed it in India according to the Indian needs. It is also mandated that this draft must be in the line to the proposals and work done by the Malimath Committee, the Madhava Menon Committee and the Law Commission of India in this regard. It is important to note that legislature cannot do this task in isolation. The judiciary would also play an important role in this exercise by ensuring that discretion power vested with them must be used in the interest of justice and should not be misused.

The criminal law mostly contemplated as an expression of the relationship between the society and its subjects. Therefore, it becomes necessary to revise this law through the principled and guided amendments. As said by Justice Chandrachud, “The need of the hour to mitigate the problem of pendency is to think out of the box”. Thus, policy makers must take immediate steps to counter the problems arising from indefinite punishment and sentencing system so that the people of the nation don’t lose their faith in the judiciary and also judiciary serve justice properly. With the help of this article, an endeavour is made to build a proper legislation for executing just and fair sentence and removing any kind of disparity before, after and during the trial.

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Young police officer lynched to death by mob has put humanity, spirit of Kashmiriyat to shame: J&K & Ladakh HC

‘It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.’ If bail is given even in such cases then who will fear the ‘rule of law’?

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In a brief, brilliant, bold and balanced judgment titled Peerzada Mohammad Waseem Vs Union Teritory of J&K in CrlA(D) No.10/2021 that was reserved on 26.08.2021 and then finally pronounced on 02.09.2021, the Jammu and Kashmir and Ladakh High Court has denied bail to a man accused of lynching a Deputy SP of 3rd Battalion Security after observing that his act has put humanity and spirit of Kashmiriyat to shame. While calling it a heinous and serious offence, Chief Justice Pankaj Mithal and Justice Sanjay Dhar observed most candidly, commendably, cogently and convincingly that, “It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.” If bail is given even in such cases then who will fear the “rule of law”? The best example to cite here is what happened in Kashmir Valley in 1990 when lakhs of Kashmiri Pandits were either killed or forced to leave as refugees in their own country as their houses were burnt, women were raped and still we saw little action on the ground! This was when Kashmiriyat was worst vandalized and burnt in reality as we all saw for ourselves!

To start with, this learned, laudable, latest and landmark judgment authored by Justice Sanjay Dhar for himself and Chief Justice Pankaj Mithal of Jammu and Kashmir and Ladakh High Court sets the ball rolling by first and foremost observing in para 1 that, “Through the medium of instant appeal under Section 21(3) of the National Investigation Agency Act (hereinafter referred to as the NIA Act), appellant has challenged the order dated 12.05.2021 passed by learned Additional Sessions Judge, TADA/POTA (Special Judge Designated under NIA Act), Srinagar, whereby bail application of the appellant has been dismissed.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts giving rise to the filing of the instant appeal are that on 22.06.2017, while the holy festival of Shabe Qadar was being observed in Jamia Masjid, Nowhatta, the appellant and the co-accused raised inflammatory slogans against the Government of India and they caught hold of deceased Mohammad Ayoub Pandit Dy. S. P. of 3rd Battalion Security, who had been deployed in the area to supervise the manpower for access control at Jamia Masjid on the occasion of Shabe Qadar. The deceased was beaten up, dragged and lynched to death by the mob, of which the appellant was a part. His pistol was also snatched and the dead body was dragged and left at Batagali Nowhatta. Police registered FIR No.51/2017 for offences under Section 302, 148, 149, 392, 341 RPC read with 13 of Unlawful Activities (Prevention) Act and investigation of the case was set into motion. After conducting investigation of the case, the challan was presented before the trial court against 20 accused. Out of these, 17 accused were arrested and produced before the trial court at the time of presentation of challan whereas one accused Sajad Ahmad Gilkar was killed in an encounter prior to presentation of the challan. Two more accused including appellant herein absconded and they could not be produced before the Court at the time of presentation of the challan.”

To put things in perspective, the Bench then enunciates in para 3 that, “In terms of order dated 12.12.2017, the learned trial court framed charges for the offences mentioned in the charge sheet against 17 accused who had been produced before it at the time of presentation of the challan. During pendency of the trial, the appellant was also arrested and produced before the trial court. Charges against him for offences under Section 302, 148, 392, 341 RPC read with Section 13 ULA(P) Act were framed by the trial court in terms of its order dated 16.05.2019. The appellant/accused pleaded not guilty and trial against him also commenced.”

While continuing in the same vein, the Bench then envisages in para 4 that, “It appears that after recording of statements of some of the prosecution witnesses, the appellant/accused moved an application before the trial court for grant of bail on the ground that material prosecution witnesses to the extent of his case have turned hostile and, as such, he deserves to be enlarged on bail. The bail application came to be dismissed by the learned trial court vide its order dated 16.09.2020. The appellant preferred an appeal against the said order before this Court which was registered as CrlA(D) No.17/2020. Vide order dated 26.02.2021 passed by this Court, the order of learned trial court was set aside and the appellant was given liberty to move a fresh application before the trial court.”

As we see, the Bench then observes in para 5 that, “It appears that the appellant moved another application before the trial court on similar grounds as were projected by him in his earlier bail application and the same has been rejected by the learned trial court vide the impugned order dated 12.05.2021.”

Be it noted, the Bench then points out in para 9 that, “The contention of learned counsel for the appellant that the appellant was impleaded as an accused at the time of filing of supplementary challan and he was not an accused in the original challan is factually incorrect. In the first charge sheet itself filed by the Investigating Agency before the trial court, the name of appellant is shown in Column No.2 indicating therein that the said accused has not been arrested. In fact, after the presentation of the challan, the learned trial court has, vide its order dated 16.10.2017, issued general warrants of arrest against two accused including the appellant herein after recording satisfaction that there are no immediate prospects of his arrest. So, it is not a case where appellant/accused has been implicated in the case after presentation of the charge sheet but it is a case where involvement of the appellant/accused is based upon the evidence collected by the investigating agency which forms part of the first challan itself.”

Furthermore, the Bench then hastens to add in para 10 that, “The record further shows that the contention of the learned counsel for the appellant that he has moved an application before the learned trial court in terms of Section 272 of J&K Cr. P. C, wherein he has admitted the remaining part of the evidence which the prosecution proposes to lead in support of its case, is also factually incorrect. We could not lay our hands on any such application on the trial court record nor there is any interim order of the trial court evidencing the said fact.”

It is worth noting that the Bench then remarks in para 11 that, “That takes us to the merits of the contention of the appellant that material witnesses who have deposed about the involvement of the appellant having turned hostile, as such, no amount of evidence that may be led by the prosecution in support of its case would lead to his conviction. In this regard, a perusal of the trial court record shows that protected witnesses Mark E, F and K, who, during investigation of the case, have in their statements recorded under Section 164 of Cr. P.C, deposed about the involvement of appellant in the occurrence being part of the unlawful assembly, have turned hostile when their statements were recorded before the Court. All these three witnesses have admitted having made statements under Section 164 Cr. P. C before the Magistrate in which they have implicated the appellant/accused. Protected witnesses Mark F and K have stated that they made these statements under pressure from police whereas protected witness Mark E has stated that he does not recollect what was stated by him. These three witnesses have been cross-examined by the prosecution as well as by the defence. The question arises as to whether at the time of considering the bail application, it is open to this Court to give a finding even on prima facie basis with regard to reliability and evidentiary value of the statements of these witnesses.”

Quite significantly, the Bench then makes it a point to state in para 12 that, “At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case cannot be undertaken. What is the effect of statements of hostile witnesses would be a moot point to be decided during the course of trial of the main case and cannot be decided during bail proceedings. The mere fact that material witnesses have turned hostile, in our opinion, by itself is not sufficient to grant bail because of the simple reason that this Court cannot imagine what would happen till the disposal of the case. If the Court were to accept or to rely upon the evidence of the prosecution recorded by the trial court, it would amount to appreciation of evidence on record which is impermissible in these proceedings. Till the completion of evidence and the trial, appreciation of evidence at the time of granting or rejecting bail, this Court cannot step into the shoes of the trial court for the purposes of appreciating the material on record.”

Adding more to it, the Bench then makes it clear in para 13 that, “What would be the effect of prosecution evidence led so far, is an issue which cannot be determined by this Court and the same has to be determined by the learned trial court at the conclusion of trial. Even the Investigating Officer, who is a star witness in the case, is yet to be examined and without examining him, this Court cannot even frame a prima facie opinion as to the merits of the prosecution case. It is a settled law that conviction of an accused can be based even on the statements of hostile witnesses and the Investigating Officer provided the same inspire confidence. This question can be determined only by the trial court and not by this Court in these proceedings.”

As an aside, the Bench then brings out in para 14 that, “Learned counsel for the appellant has contended that the appellant has been in custody for quite some time now and in the face of the fact that material witnesses have turned hostile, it may work harshly against the appellant if he is kept in custody till the remaining evidence of the prosecution is recorded, particularly when there are no chances of his conviction.”

Truth be told, it cannot be just glossed over that the Bench then specifically points out in para 15 that, “A perusal of the trial court record shows that it is only in May, 2019, that charges have been framed against the appellant/accused and until that date, he was absconding. Due to COVID-19 pandemic, the normal work of trial courts got seriously hampered and in spite of this, a large number of witnesses have already been examined by the prosecution in the case. Therefore, it cannot be stated that there has been any delay in trial of the case.”

Most significantly, what forms the cornerstone of this remarkable, robust and rational judgment is then illustrated best in para 16 wherein it is held that, “Apart from the above, we also need to take into account the gravity of the offence and the circumstances in which the offence has been committed by the accused including the appellant herein. It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.”

Finally and as a corollary, the Bench then holds in the last para 17 that, “For the foregoing reasons, we do not find any merit in this appeal and the same is, accordingly, dismissed.”

In conclusion, every Indian must feel proud that this notable judgment by Chief Justice Pankaj Mithal and Justice Sanjay Dhar of Jammu and Kashmir and Ladakh High Court has made it absolutely clear that there has to be zero tolerance for mob lynching. Kudos to them for this! The Court very rightly refused bail to the offender. If they are not deal most firmly then we will only see the rise of Talibani forces in our country also whom even hard line Muslims like the most famous AIMIM chief Asaduddin Owaisi demands should be declared a terror organization!

Of course, it goes without saying that Owaisi has hit the “biggest and tightest slap” with “full force” on the ‘face’ of all such “Muslim Maulvis” and “other Muslims” and so called “secular leaders” who are welcoming Taliban like former CM Farooq Abdullah and Mehbooba Mufti among others who are demanding that India maintain bilateral relations with Taliban as they have become a reality now! Shame to UN if it watches all this like a mute and helpless spectator! Violence in any form can never be justified and if India starts justifying Taliban then this will ensure the return of hardline Islam in India just like it existed prior to the advent of Britishers during Aurangzeb’s rule among others which India can never afford under any circumstances as it will ensure that democracy is buried and India is converted into a hard line Islamic state or India is partitioned again and again which no true Indian no matter whether he is a Hindu or Muslim or anyone else would ever justify under any circumstances just like imposing monogamy on Hindus alone in 1955 can never be justified under any circumstances and this my best friend Sageer Khan resented most!

It is high time and monogamy also must be imposed on one and all straightaway as the population explosion is rocking our country and hitting us hard which alone explains why Sageer Khan felt most strongly that it should be abolished for one and all as this will ensure that India progresses, prospers and emerges powerful! Even Delhi High Court had recently called for uniform civil code! If uniform civil code is going to take time then why can’t polygamy be outlawed just like Pandit Nehru most commendably outlawed polygamy and polyandry for Hindus in 1955 even though Dr BR Ambedkar in his Hindu Code Bill favoured retention of polygamy among Hindus in his Hindu Code Bill 1951 due to which I term Pandit Nehru as “Real Father And Real Reformer Of Hindus”?

It merits no flogging again and again that law must be same for one and all as Sageer Khan used to often underscore so that no Hindu like eminent film actor Dharmender among others are forced to convert to Islam just for the sake of marrying and same was the case of son of former Haryana Chief Minister and Congress leader Bhajan Lal! Kowtowing in front of “hardline Islam” which Taliban preaches will definitely destroy our nation as Sageer Khan often pointed out way back in 1993-95 and now even Owaisi just recently has gone all out in making it absolutely clear and thundering that Taliban is a “terror organization” which has to be mocked with full force and it must be declared so by the Centre right now without wasting any time! Very rightly so!

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Non-communication of right to make representation against detention order violates constitutional right: MP HC

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While fully, firmly and finally endorsing the Constitutional right to make representation against the detention order, the Indore Bench of Madhya Pradesh High Court has in a learned, latest, laudable and landmark judgment titled Lokendra Singh v/s The State of Madhya Pradesh & Others in Writ Petition No. 12166/2021 delivered just recently on September 6, 2021 has quashed a detention order on the ground that it did not contain a stipulation informing the detenue about his right to prefer a representation against his detention by the detaining authority. It must be mentioned here that a Division Bench comprising of Justice Sujoy Paul and Anil Verma relied on a catena of judicial precedent to support their observations which they drew and they shall be discussed later on. It must also be apprised here that it was the petitioner’s case that the detention order did not mention that a representation can be sought before the same authority, thereby violating a valuable right of the petitioner under Article 22 of the Constitution of India.

To start with, the Division Bench comprising of Justice Sujoy Paul and Anil Verma of Indore Bench of Madhya Pradesh High Court who authored this brief, brilliant, balanced and bold judgment sets the ball rolling by first and foremost observing in the opening para that, “The singular point raised by the petitioner is that in the detention order dated 07.06.2021, the learned District Magistrate has not mentioned that detenue – Narendra Thakur can prefer representation against the detention order before the same authority namely District magistrate thereby violating a valuable right of the petitioner flowing from Article 22 of the Constitution of India. This point is squarely covered by a recent Full Bench Judgment of this Court passed in W.P. No.22290/2019 (Kamal Khare v/s The State of Madhya Pradesh) which is followed in W.P. No.9630/2021 (Gurubachan Singh Saluja v/s The State of Madhya Pradesh & Others) by this Court.”

It certainly cannot be just glossed over that the Division Bench then very rightly points out in the next para that, “Shri Vivek Dalal, learned Additional Advocate General for the respondents / State fairly admitted that the detention order does not contain any such stipulation that petitioner can prefer representation against the detention order before the same authority. He further agreed that on this ground, Full Bench in Kamal Khare (supra) has held that the detention order stands vitiated because of infringement of said right.”

Quite significantly, the Bench then observed in the next para that, “This Court in Gurubachan Singh Saluja (supra) followed the Full Bench decision and opined as under:-

“6) In one of the aforesaid matters (WP No.9792/2021), this Court held as under:-

31) Indisputably, the detention order does not contain any stipulation that the detenu has right to prefer representation before the same authority namely, District Magistrate. The reliance is placed on the recent Full Bench judgment of this Court passed in the case of Kamal Khare (supra). To counter this argument, the bone of contention of learned AAG was that the said Full Bench decision is distinguishable. Full Bench judgment is based on a constitution bench judgment in the case of Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51. In Kamleshkumar (supra), the Apex Court was dealing with the provisions of COFEPOSA Act and the PIT NDPS Act and not with NSA Act. Hence, the said constitution Bench judgment could not have been relied upon.

32) We do not see much merit in this argument because similar argument was advanced by the Govt. before Full Bench in the case of Kamal Khare (supra) which is reproduced in extenso in para-14 of the said judgment. The similar argument could not find favour by the Full Bench.

33) In Kamleshkumar (supra), Apex Court opined as under:-

“6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya [1951 SCR 167, 186 : AIR 1951 SC 157] .) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention.

14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.

38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.”

EMPHASIS SUPPLIED

34) The Full Bench after considering the constitution Bench judgment opined as under:-

“20. The Supreme Court in Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315 dealing with the aspect whether the Life Insurance Corporation Act, 1956 is a special statute qua the Industrial Disputes Act, 1947 when it came to a dispute regarding conditions of service of the employees of the Life Insurance Corporation of India held that the Industrial Disputes Act would prevail over the Life Insurance Corporation of India Act as the former relates specially and specifically to industrial disputes between the workmen and employers. Relevant discussion in paragraph No.52 of the report would be useful to reproduce hereunder:-

“52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes – so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission – the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, or management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to.”

30. Now coming to the question as to what would be the effect of not informing the detenu that he has a right of making representation, apart from the State Government and the Central Government, also to the detaining authority itself, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) even examined this aspect in paragraph No.14 of the report and categorically held as under:-

Please read concluding on thedailyguardian.com

“14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”

33. In view of the above, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) analyzed the effect of not informing the detenu of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal. The relevant paragraph No.47 is reproduced hereunder:-

“47. In both the appeals the orders of detention were made under Section 3 of the PIT NDPS Act by the officer specially empowered by the Central Government to make such an order. In the grounds of detention the detenu was only informed that he can make a representation to the Central Government or the Advisory Board. The detenu was not informed that he can make a representation to the officer who had made the order of detention. As a result the detenu could not make a representation to the officer who made the order of detention. The Madras High Court, by the judgments under appeal dated 18-11-1994 and 17.1.1994, allowed the writ petitions filed by the detenus and has set aside the order of detention on the view that the failure on the part of the detaining authority to inform the detenu that he has a right to make a representation to the detaining authority himself has resulted in denial of the constitutional right guaranteed under Article 22(5) of the Constitution. In view of our answer to the common question posed the said decisions of the Madras High Court setting aside the order of detention of the detenus must be upheld and these appeals are liable to be dismissed.”

Emphasis supplied

35) Another Division Bench in WP No.5866/2015 (Salma vs. State of MP) opined as under:-

“On the last date of hearing opportunity was granted to the learned counsel for the State to examine the law laid down b the Apex Court, which has been made applicable in the various cases by the Division Bench of this Court, in the matter of compliance of provisions of Article 22 (5) of the Constitution of India in the matter of detention itself, intimating the detenu that he/she is entitled to make a representation before the Detaining Authority himself against the order of detention. Such law was considered and made applicable in view of the law laid down by the Apex Court in the matter of State of Maharashtra and others Vs. Santosh Shankar Acharya (2000) 7 SCC 463, vary same law was made application by this Court in W.P. No.1830/2015, W. P. No.3491/2015, W .P. No.3677/2015 & W. P. No.3683/2015 in the following manner :

Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others vs. Santosh Shankar Acharya (2000) 7 SCC 463 in para 5 and 6 in particular. The Supreme Court following the dictum in the case of Kamleshkumar restated that noncommunication of the fact to the detenu that he could make a representation to the detaining Authority so long as order of detention has not been approved by the State Government in case the order of detention has been issued by the Officer other than the State Government, would constitute infringement of right guaranteed under Article 22(5) of the Constitution and this ratio of the Constitution Bench of the Supreme Court in Kamlesh kumar would apply notwithstanding the fact that same has been made in the context of provisions of COFEPOSA Act. In para 6 of the reported decision, the Supreme Court rejected the similar objection canvassed by the learned counsel for the State relying on Veeramanâ s™ case and noted that the said decision does not help the respondents in any manner. Inasmuch as, in that case the Court was called upon to consider the matter in the context of situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. In none of the cases on hand the observation in the case of Veeramani will have any application. Suffice it to observe that the detention order and the disclosure of the fact that detenu could make representation to the detaining Authority before the State Government considered the proposal for approval has abridged the right of detenu under Article 22(5) of the Constitution. As a result, the continued detention of the detenu on the basis of such infirm order cannot be countenanced.

These petitions, therefore, must succeed. The impugned detention orders in the respective petitions are quashed and set aside and respondents are directed to set the petitioners/detenu at liberty forthwith unless required in connection with any other criminal case.” Emphasis supplied

36) In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order. Resultantly, impugned order of detention dated 10/05/2021 is set aside.

37) In view of foregoing analysis, the impugned order of detention cannot sustain judicial scrutiny.

38) Before parting with the matter, we deem it proper to observe that the main grievance of detenue/complainant was that the District Magistrate while passing the order of detention did not inform him about his valuable right to prefer a representation against the detention order before the same authority namely District Magistrate. Full Bench recognized the said right of the detenue in light of the constitutional bench judgment in the case of Kamleshkumar Ishwardas Patel (supra). Thus, in the fitness of things, it will be proper for the State to ensure that henceforth in the order of detention, it must be mentioned that the detenue has a right to prefer a representation before the same authority.” Emphasis Supplied

7) In view of the Full Bench decision in Kamal Khare (supra) which was followed by Indore Bench in aforesaid matter, we deem it proper to set aside the impugned orders of detention.” Emphasis Supplied.”

Finally, the Division Bench then holds that, “In view of dicta of Full Bench in Kamal Khare (supra), the impugned order dated 07.06.2021 has become vulnerable and is accordingly set aside. The Writ Petition stands allowed.”

In a nutshell, it can thus be said that the Indore Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Anil Verma have made it absolutely clear that the non-communication of ‘right to make representation against detention order’ violates Constitutional right under Article 22 of the Constitution of India. It was rightly mentioned that the Constitutional Bench in Kamleshkumar Ishwardas Patel case noted that Article 22(5) must be construed to mean that the person detained has a right to make representation against the order of detention. This representation can be made not only to the Advisory Board but also to the detaining authority and any other authority that is competent under law to revoke the order for detention and thereby give relief to the person detained.

Sanjeev Sirohi, Advocate,

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One contract, two arbitrations: Res Judicata in international arbitration contradicting public policy

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Speed is the essence of arbitration. Parties opt for arbitration believing that it is a timelier dispute resolution cog. Unfortunately, however, this is often not the case. Complex, commercial arbitrations take momentous time to finish off and prosperous parties would then have to corroborate with challenges to the tangibility as well as enforcement of the arbitral award. Arbitrations are an increasingly civil element of long-term commercial relationships. However, the confidentiality of arbitral proceedings means there is a little publicly available aisle in the contour of awards to work for us to understand the complex legal and practical issues that arise in subsequent proceedings when an earlier tribunal has rendered a decision on a particular matter.

So, in general words resolution of the disputes emanating under the international commercial contract via the rotation of arbitration is known as International Commercial Arbitration. In addition, the 1996 Arbitration & Conciliation Act discerns ICA specifically as arbitration of a legitimate linkage which shall be contemplated commercially if either of the bands is a foreign national or an inhabitant or a foreign person in a commercial context, in accordance with section 2(1) (f) for International Commercial Arbitration. It is used as a better alternative to litigation, and the complete process is controlled primarily by the parties themselves instead of following the national legislation or an established procedure rules. Most of the international commercial contracts contain a dispute resolution clause that specifies that if any dispute arises under the contract, it could be resolved through arbitration, rather than litigation.

The rule of res judicata is the enormous regulation which is solidified in all refined countries by the authorised structures. The precepts of the res judicata should be blended to arbitral tribunals since arbitral courts are an alternative to courts and when an award is required to be included in the country’s lawful order.

OVERVIEW: COMMON LAW STILL MUDDIED WATERS OF COURT, SOMEWHAT

That’s an interest that is in principle, Common to all disputes whether common law, civil law, or even international or any other system form whether in litigation or arbitration. However, an international arbitration difficulty arises when you try to drill down in any given case on precisely what has been decided, and what can be revisited the multiplicity of governing laws that have a bearing on rescue gives rise to complexities that tribunals need to resolve as part of their mandate. Questions of rescue as they commonly arise in long term legal relationships can take many forms, including international projects, a natural resource can check concessions partnerships shareholder agreements and various other long-term investments. Unfortunately, the private and confidential nature of arbitration means that judicial guidance is in the way of the waters.

OBLIGATORY LAWS APPLICABLE TO ARBITRATION: A STANDPOINT

Indian laws procure for dispute resolution of any international commercial disputes through arbitration and conciliation act 1996 arbitration involving a foreign party, and with its seat in India will be considered as an ICA. In this case, the first part of the 1996 act of arbitration and conciliation will apply. If the seat is outside India, however, part two of the Act would apply rather than part one. This mechanism aims to nail the commercial disputes between the foreign and Indian entities within the framework of the Indian arbitration laws. Now being an international or domestic arbitration, the arbitration is of two types, number one, institutional arbitration. Secondly, in ad hoc arbitration, the parties agree to have an arbitral institution, administer the dispute. These institutions establish their own arbitration rules which would apply to their arbitration procedures. These rules supplement the existing provisions of the Arbitration Act in matters of procedure, and the other details, as the legislation permits the dispute dealt by There may also be general and specific in nature, the arbitration Institute’s have fixed the arbitrators fees, administrative expenses, qualified arbitration panels rules governing the arbitration proceedings, etc, which exalted in smooth and orderly conduct of arbitration in India.

FINAL AWARD: INITIATING ARBITRATIONS UNDER MULTIPLE ARBITRATION AGREEMENTS

The filing of arbitrations established in multiple arbitration agreements, incorporated in two (or more) diverse agreements, in a single arbitration proceeding may be conceivable, but must be accomplished with caution.

ADR is an undertaking to ad lib machinery which ought to be competent of rendering substitute to the conventional outlines of untangling confrontations. The genealogy of the alternative resolution of disputes may be described in India. Corpses like the Panchayat, a group of people in a geriatric or persuasive hamlet who agree on a quarrel among locals, are still not exceptional today. The appointed judicial agent was the Kazi, which adjudicated disagreement between persons under the Principles of Muslim Law in Indian culture. There are several instances documented where the Kazi decided on a matter outside the law by getting the parties to approve a solution reached through conciliation without really adding that colour to the judgement. The 1996 Arbitration and Conciliation Act is a Parliament attempt to adopt an overall strategy to the settlement of alternatives to disputes in India. It is an act that enables conflict settlement either through arbitration or conciliation. In connection with international arbitration, the doctrine of res judicata might be combined. Res judicata fits in with the symposia on “post-award issues” solely to the extent that it concerns the repercussions of arbitrative awards. In this context, questions are arising as to whether a given arbitral award is res judicata in the same arbitrage (whereas the question arises of the effects in the subsequent phases of the same arbitrations of partial or interim awards), other arbitrations (whether or not based on the same arbitration agreement) and proceedings before domestic courts. Additional aspects of the doctrine which do not involve awards and which are therefore beyond the scope of this discussion are the res judicata effects of domestic judgments (for example findings of nullity or ineffectiveness of an Arbitrative Agreement) in arbitral or domestic courts and the res judicata effects in Arbitration Process.

The Final Award is the climactic ruling in an arbitration that has significant sequels, in the perception that it is the climax of an animosity, or a dispute shelved to an arbitral tribunal or a sole arbitrator, and it will concuss the contracts between the parties and may not chiefly be played against. In addition to stapling the legal or factual antagonisms between the parties, the Final Award may also speculate upon the version of contract stints or distinguish the respective liberties and obligations of the parties to a contract.

EPILOGUE

In other words, the arbitrator’s judgement on the application of the concept should also be respected by the court.

But while analysing circumstances of res judicata and restricting their powers accordingly, Arbitrators should meticulously do their analyses, since their wrong conclusion in relation to a prior award or judgement would likewise contradict public policy.

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Obliviating the oral regime

‘Judgments cannot be treated as mere counters in the game of litigation.’

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The above excerpt from the judgment of Lord Atkinson in ‘Somasundaran vs. Subramanian; AIR 1926 PC 136’, encapsulating the sanctity and solemnity of the court orders and judgments, was quoted with approval by Justice Chinnappa Reddy in ‘State of Maharashtra vs. Ramdas Shrinivas Nayak; (1982) 2 SCC 463’, where the Supreme Court was seized of the questionwhether the State of Maharashtra could be allowed to resile from the concession made before the High Courtas recorded in the judgment. During the course of hearing before the Court, Shri A.K. Sen, who hadappeared for the State of Maharashtra before the High Court, protested that he never made any such concession and invited the Court to peruse the written submissions made by him in the High Court. However, the Supreme Court declined the request and categorically observed that, “we cannot and we will not embark upon an enquiry. We will go by the judges’ record.”. The Court mentioned that the “Matters of judicial record are unquestionable” and that it is restrained by judicial decorum and public policy from launching an inquiry as to what transpired in the High Court. It was further observed by the Court that, “We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.”. The Supreme Court accorded utmost precedence to the judicial record; not allowing it to be contradicted by either the lawyer or the litigant, except the judge herself.

The recent judgment of the Hon’ble Supreme Courtdated 31st August 2021 in ‘Salimbhai HamidbhaiMenon vs. Niteshkumar Maganbhai Patel & Anr.; 2021 SCC OnLine SC 647’, embarks on the same spirit and principle enunciated in R.S. Nayak(supra), and observes that, “Judges speak through their judgments and orders. The written text is capable of being assailed. The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable.”. This observation came to be made by the Court apropos the procedure followed by the High Court in issuing an oral direction restraining the arrest of the first respondent. While the text of the order of that particular date did not contain any such direction, however, the subsequent order passed by the High Court adverted to such oral direction and directed immediate release of the accused. The Supreme Court found it ‘irregular’ and observed that a specific judicial order was necessary for grant of an interim protection against arrest to the accused. It also observed that, “Oral observations in court are in the course of a judicial discourse. The text of a written order is what is binding and enforceable.”. The Supreme Court, in this matter, has gone even a step further from R.S. Nayak(supra) and said that even a Judge cannot contradict the judicial record and are accountable for their actions.

Albeit, the Supreme Court has confined itself to the shortcomings of issuing oral direction in a criminal proceeding and the concomitant necessity of a written order, and has distinguished a criminal proceeding from a civil proceeding based on the infusion of interests of State and society in prosecution of the former, the same yardstick has been consistently applied by the Supreme Court in civil cases also. The principle is well settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.

In ‘Associated Tubewells Ltd. v. R.B. GujarmalModi; AIR 1957 SC 742’, the Supreme Court had deprecated the practice of referring to a conversation which took place in Court but not found a place in the written order, stating that,

“3. We cannot, however, part from this matter without placing on record our very strong disapproval of the course that the advocate — a very Senior Counsel of this court — has adopted in making this application. In the review application he has referred in detail as to what, according to him, happened in court on the prior occasion and what each Judge said in the course of the arguments. The review application sets out at length what the presiding Judge said and expressed in the course of the arguments and what his views were and what the other Judges of the Bench said and expressed and what the view of each was. These statements are followed by a confident assertion how and why the application was dismissed.

5. Judges of this Court cannot be dragged into a controversy as to whether the statements ascribed to them are correct, or express correctly and fully what they had in view. …. ..It is not consistent with the dignity of the Court and the decorum of the Bar that any course should be permitted which may lead to controversy as to what a Judge stated in Court and what view he held. Such matters are to be determined only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. To permit the atmosphere of the Court to be vitiated by such controversy would be detrimental to the very foundation of the administration of justice.”

The Supreme Court, with its earlier judgments, had set the tone for the course to be followed by the judges in abstaining from issuing oral directions. Now, with its latest pronouncement in Salimbhai(supra), the Supreme Court has decisively and succinctly laid down thereasons for eschewing such conduct, and observed that,“Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse. Most High Courts deal with high volumes of cases. Judicial assessments change with the roster. Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations.”.

A couple of months ago, the author also has had the misfortune of being caught up in such an ugly spectacle. There was no written order/direction by the Ld. Judge, yet the Counsel for the other side insisted than an oral direction was indeed issued. To the great dismay and discomfiture of the author, the Ld. Judge observed that this is a long-standing practice of this (Delhi) High Court that, at times, the Court issues oral directions and the parties abide by such directions. Hopefully, with the latest pronouncement of the Supreme Court, such things would cease in all High Courts, including the Delhi High Court. It can be very embarrassing for the Court and the Counsel. Your humble author can only add that in this day and age of virtual hearings, the written orders assume even a greater significance. It requires no gainsaying that VC is prone to frequent disturbances and disconnections, and this could potentially and occasionally lead to oral directions of the Court or oral undertaking of the Counsels going unnoticed, unheard or unregistered by the parties concerned. And when such oral directions/undertakings are not recorded in the written order, it may lead to a myriad of consequences and complexities; one such we have already seen in Salimbhai(supra). This may well change with the live transcription or telecast of court proceedings, as is done in the Central and State legislature/s and jurisdiction of other democracies like Australia, Brazil, Canada, England, Germany and US. While web portals like Bar&Bench, LiveLaw etc. have been transcribing the court proceedings in a few matters, there has been no occasion for the Court/lawyers hitherto to rely upon or refer to such transcriptions as means of confirming the oral directions/observations made by the Court. It’s anybody’s guess whether the Courts would repose their faith and trust in these online transcripts, or introduce a Court approved transcription/recording of proceedings. But until then, Hon’ble Justice D.Y. Chandrachud has sounded a cautionary note for all Courts to follow, and rightly so.

The Court mentioned that the “Matters of judicial record are unquestionable” and that it is restrained by judicial decorum and public policy from launching an inquiry as to what transpired in the High Court. It was further observed by the Court that, “We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.”. The Supreme Court accorded utmost precedence to the judicial record; not allowing it to be contradicted by either the lawyer or the litigant, except the judge herself.

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Sentencing on the same day as conviction denies an effective hearing: MP HC commutes death sentence to life imprisonment

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In a well-articulated, well-researched, well-analysed, well-reasoned, well-written, well-substantiated and well-concluded judgment titled In Reference (Suo Motu) vs Yogesh Nath @ Jogesh Nath in Criminal Reference Case No. 05/2020 & Criminal Appeal No. 4965/2020 that was reserved on 26 August, 2021 and then finally pronounced on September 8, 2021, the Gwalior Bench of Madhya Pradesh High Court made it absolutely clear that sentencing on the same day as conviction denies an effective hearing. This alone explains why the Gwalior Bench had just no inhibition in referring specifically to the most historic Bachan Singh’s case (Bachan Singh vs State of Punjab AIR 1980 SC 898) to observe clearly that the accused was denied an effective hearing. It must be mentioned here that a Division Bench of Justices GS Ahluwalia and Rajeev Kumar Srivastava made it a point to note that no sufficient opportunity was given to the accused-appellant for placing mitigating circumstances on record. It was further also pointed out that the trial court did not consider the grant of any alternative punishment or the possibility of reformation.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Rajeev Kumar Shrivastava for himself and Justice GS Ahluwalia of Gwalior Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost observing in para 1 that, “This judgment shall govern the disposal of Criminal Reference Case No. 05/2020 as well as Criminal Appeal No. 4965/2020, as both arise out of judgment dated 16.09.2020 passed by Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) in Special Sessions Trial No. 122/2017.”

To put things in perspective, the Bench then puts forth in para 2 that, “As per Criminal Reference Case No.05/2020, Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) vide judgment dated 16.09.2020 in Special Sessions Trial No. 122/2017, having found the accused guilty under Sections 363, 377, 302, 201 (Part-1) of IPC and under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’), has inflicted penalty of death sentence and has submitted the matter for confirmation under Section 366 of Cr.P.C.”

While elaborating on the facts of the case, the Bench then enunciates in para 4 that, “The short facts of the case are that on 28.04.2017, Ashok Adiwasi along with his family members, his wife Jasoda, daughters Pooja, Arti and sons Daulat & deceased ‘A’, attended the marriage ceremony of Varsha, who is the daughter of Dharmendra. Deceased ‘A’ was aged around 10 years. After attending the marriage function Ashok Aadiwasi returned back home with his family members excluding deceased ‘A’. As deceased ‘A’ was missing, hence Ashok Aadiwasi tried to search the deceased ‘A’ but his efforts left in vain. On the next day morning, he was informed that dead body of deceased ‘A’ is found in the dug of village Bara and the body of deceased ‘A’ is nude. This information was furnished to the Police Station Bahodapur. On account of that, Hemlata, Sub-Inspector of Police Station Bahodapur reached on the spot and recorded Dehati Nalishi. On the basis of Dehati Nalishi, thereafter FIR was set into motion at Crime No. 260/2017 and offence was registered under Sections 377, 302, 201 of IPC and under Section 3/4 of POCSO Act, on 29.04.2017, i.e., Ex.P/15.”

Needless to say, the Bench then states in para 7 that, “After completion of investigation, charge sheet was filed. The trial Court framed the charges under Sections 377, 302, 201 (Part-I), 363 of IPC and under Section 4 read with Section 3 of POCSO Act. The accused abjured his guilt and sought trial.”

Be it noted, the Division Bench then observes in para 109 that, “On perusal of trial Court’s judgment, it is apparent that the trial Court while passing the judgment on 16/09/2020, convicted the accused-appellant for offences as mentioned above. Thereafter, on the same day after hearing the counsel for the parties, awarded the accused appellant death punishment along with other punishments.”

Quite significantly, the Bench then observes in para 113 that, “On perusal of record, it is apparent that no sufficient opportunity was given to the accused-appellant for placing relevant mitigating circumstances supported with affidavit on record. The appellant-accused is aged around 25 years of age. The trial Court has not considered regarding alternative punishment to the appellant-accused and there is no any finding that in the absence of death sentence, the appellant accused would continue to be a threat to the Society. And also not answered that there is no possibility of reformation.”

Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in para 114 wherein it is postulated that, “For effective hearing under Section 235(2) of the Code of Criminal Procedure, the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court. This has not been done. The trial court made no attempt to elicit relevant facts, nor did the trial court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the accused has been denied an effective hearing.”

As a corollary, the Bench then finds no hesitation in observing in para 115 that, “Therefore, considering the aforesaid mitigating circumstances in the present case, we are of the considered view that in the case at hand verdict given by Hon’ble Apex Court in the case of Mulla & Anr. Vs. State of U.P. [AIR 2010 SC 942] followed for just decision of this case.”

As we see, the Bench then observes in para 116 that, “In the case of Mulla (supra), it is held that it is open to the Court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by the life imprisonment.

“85. … The court should be free to determine the length of imprisonment which will suffice the offence committed.” (emphasis supplied).”

It is worth noting that the Bench then observes in para 117 that, “Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the appellant, we feel that the appellant should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him.”

In view of the aforesaid, the Division Bench then in para 118 comes to the rational conclusion that, “For the above reasons, we are of the view that the present appeal is one of such cases where we would be justified in holding that confinement till natural life of the appellant-accused shall fulfill the requisite criteria of punishment considering the peculiar facts and circumstances of the present case.”

Truth be told, the Bench then ostensibly observes in para 119 that, “Accordingly, the death sentence awarded by the trial court to the appellant-accused is commuted to “life imprisonment” till his natural death. The appellant-accused shall not be entitled for any remission.”

As a kind gesture, the Bench then graciously concedes in para 120 that, “Before parting with this judgment, this Court would like to record its appreciation for the assistance rendered by Shri Vivek Jain and Shri S.S. Kushwaha, Advocates, who tried their level best to point out each and every minor discrepancy in the evidence of the prosecution in order to effectively put forward the case of the appellant-accused.”

Furthermore, the Bench then holds in para 121 that, “With aforesaid modification in sentence, the judgment dated 16/09/2020 passed by Fifth Additional Sessions Judge & Special Judge (POCSO Act), Gwalior in Special Sessions Trial No.122/2017 is hereby affirmed.”

Adding more to it, the Bench then holds in para 122 that, “The appellant-accused in Cr.A. No.4965/2020, namely, Yogesh Nath @ Jogesh Nath, is in jail. He shall undergo the remaining jail sentence till his natural death.”

In the fitness of things, the Bench then directed in para 123 that, “A copy of this Judgment be immediately sent to the accused-appellant in Cr.A. No.4965/2020, Yogesh Nath @ Jogesh Nath, free of cost.”

In conclusion, the Division Bench of Gwalior Bench of Madhya Pradesh High Court thus stands fully justified in this leading judgment in commuting the death sentence to life imprisonment and it has accorded valid reasons also for doing so as already discussed hereinabove and the most prominent being that sentencing on the same day as conviction certainly culminated in denying an effective hearing to the accused so that the accused could place the mitigating circumstances before the court. Moreover, there was no direct evidence in this case and there were various material contradictions and omissions in the statements of prosecution witnesses. In addition, no witness has proved last seen evidence. As if this was not enough, it also could not be glossed over that public hairs of the accused were collected by cutting them with the help of a razor and therefore the prosecution could not rely upon the DNA report of accused-appellant. To top it all, the DNA samples were also not collected properly for forensic test and sent after delay. So it was therefore quite palpable that death penalty had to be reduced to life term and the same was done accordingly!

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