The Supreme Court on Friday issued notice on CBI's plea alleging non-cooperation on the part of telecom operators Vodafone and Airtel in not sharing the Call Detail Records (CDR) of Saradha Group directors Sudipta Sen and Debjani Mukherjee.

The bench headed by Chief Justice Ranjan Gogoi required the companies to reply by April 8 even as Senior Advocate Mukul Rohatgi refuted the claims. Appearing for Vodafone, Rohatgi argued that "everything has already been handed over" and that the probe agency's contention is incorrect.

Further, Solicitor General Tushar Mehta advanced that there is a state of absolute "anarchy" and "lawlessness" in the state of Wes Bengal, in the face of the recent instance where the local police harassed the custom officials at the Kolkata Airport when the latter attempted to check the luggage of the wife of TMC MP Abhishek Bannerjee (CM Mamta Bannerjee's nephew).

In response, Senior Counsel Abhishek Manu Singhvi argued on behalf of the state government that the SG should abstain from feeding the media under the garb of making submissions.

Earlier, the Central investigative agency had moved the apex court alleging the destruction of material evidence in connection with the Saradha Chit Fund Scam on the part of the erstwhile Kolkata Police Commissioner Rajeev Kumar. In the wake of the face-off between the federal probe agency and the West Bengal government on February 3, the former had prayed for the surrender of evidence and contempt action against the state police.

The Court had then directed Kumar "to appear and make himself available before the CBI and to faithfully cooperate at all times" in connection with the investigations into the Chit Fund scam.

The bench had also issued notice to the Chief Secretary of the state of West Bengal, the DGP and the Police Commissioner on CBI's contempt plea, requiring the officials to file their responses.

On February 27, not convinced to act on the contempt petition, the Court had required the probe agency to file an affidavit furnishing substantive material to back its claims of tampering of evidence by the state police.

This week, perusing the CBI's latest status report, the top court was of the view that "very, very serious" revelations have been come to light upon Kumar's interrogation.

The Supreme Court Collegium has recommended transfer Justice Pradeep Nandrajog, the current Chief Justice Rajasthan High Court to Bombay High Court.

The Collegium comprising of CJI Ranjan Gogoi, Justices SA Bobde, NV Ramana, Arun Mishra and RF Nariman took note that the present Chief Justice of Bombay High Court Justice  N.H. Patil, is retiring on 6th April, 2019. 

":Office of the Chief Justice of the Bombay High Court would be falling vacant shortly, consequent upon retirement of Mr. Justice N.H. Patil, Chief Justice of that High Court on 6 th April, 2019. Therefore, appointment to that office is required to be made", the resolution reads.

Justice Pradeep Nandrajog was enrolled as an Advocate with the Bar Council of Delhi in the year 1981. He was elevated as an Additional Judge of the Delhi High Court on 20th December 2002 and became a Permanent Judge on 16th April 2004. He was appointed as Chief Justice of Rajasthan High Court on 2.4.2017.

It was reported that the Supreme Court collegium that met in December 2018 had taken a decision to elevate Justice Nandrajog to the Supreme Court. But, later the collegium decided to have a fresh look in the matter and instead recommended Justice Dinesh Maheshwari and Justice Sanjiv Khanna to Supreme Court. This change of decision had generated huge controversy.

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The Supreme Court has observed that criminal antecedents of an employee or a candidate cannot be said to be clear when he was acquitted in a criminal case on the ground of benefit of doubt and not because the case against him was found to be false.

Supreme Court has designated 37 lawyers as Senior Advocates. 

Here is the Full List

Madhavi Goradia Divan

R. Balasubramanian

Anitha Shenoy

Aruneshwar Gupta

Jugal Kishore Tikamchand Gilda

Sanjay Parikh

Preetesh Kapur

Ashok Kumar Sharma

Deepak Madhusudan Nargolkar

Ajit Shankarrao Bhasme

Nikhil Nayyar

S. Wasim A. Qadri

M. G. Ramachandran

Manish Singhvi

Gopal Sankaranarayanan

Mohan Venkatesh Katarki

Nakul Dewan

Devadatt Kamat

Anip Sachthey

Anupam Lal Das

G. Venkatesh Rao

Jayanth Muth Raj

Arijit Prasad

Jay Savla

Aparajita Singh

Menaka Guruswamy

Siddhartha Dave

Siddharth Bhatnagar

C. N. Sreekumar

Aishwarya Bhati

Santosh Paul

Gaurav Bhatia

Bharat Sangal

Vinay Prabhakar Navare

Manoj Swarup

Ritin Rai

Priya Hingorani

This is the second instance of SC conferring senior designation as per the "Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018", notified in August 2018.

In September last year, the SC had designated 25 former HC judges, who started practice in SC, as senior advocates.

The guidelines are notified pursuant to the SC judgment in Indira Jaising's case, which prescribed the parameters for senior designation. 

The guidelines empower a permanent committee called "Committee for Designation of Senior Advocates" to deal with all the matters relating to such conferment.

This committee shall comprise of the Chief Justice of India as its Chairperson, along with two senior-most Supreme Court judges, Attorney general for India, and a member of the Bar as nominated by the Chairperson and other members.

The committee is expected to meet at least twice in a calendar year. It will also have a Permanent Secretariat, the composition of which shall be decided by the CJI in consultation with other members of the Committee.

The four point criteria for assessment of advocates for senior designation is as follows :

Application and eligibility

A recommendation in writing can be submitted by the CJI or any other judge if they are of the opinion that an advocate deserves to be conferred with the designation. An Advocate on Record (AoR) seeking conferment of distinction as Senior Advocate may also submit an application in the prescribed format to the Secretariat.

The Secretariat will invite applications from retired Chief Justices or judges of the High Courts, and Advocates seeking conferment of the distinction every year in the months of January and July. The notice shall be published on the official Supreme Court website, and the information would also be provided to the Supreme Court Bar Association as well as the Supreme Court Advocates-on-Record Association.

As far as eligibility is concerned, an Advocate shall be eligible for designation as Senior Advocate only if he has 10 years combined standing as an advocate or a District Judge, or as a Judicial Member of any Tribunal whose qualification for eligibility isn't less than that prescribed for a District judge. Retired Chief Justices or judges of the High Courts are also eligible for the distinction

Procedure for designation

All applications and written proposals are to be submitted to the Secretariat, which will then compile data on the applicant's reputation, conduct, and integrity, including his participation in pro bono work and the number of judgments in which the advocate appeared during the past five years. The application or the proposal would then be published on the Supreme Court website, inviting suggestions and views of other stakeholders.

After the data-base on the Advocate is compiled, the Advocate's case would be put before the Committee for further scrutiny, which will assess the candidates on the basis of four-point criteria.

Post such overall assessment, the Advocates' candidature would be submitted to the Full Court, which would then vote on the same. The guidelines however clarify that cases of retired Chief Justices and judges of the High Courts will straightaway be sent to the Full Court for its consideration.

The Rules further specify that voting by secret ballot will not normally be resorted to in the Full Court except when "unavoidable". Cases which are rejected by the Full Court can be considered afresh after two years, and cases which are deferred can be considered after one year from such deferment.

The Rules clarify that if a Senior Advocate is found guilty of conduct, which according to the Full Court disentitles the Senior Advocate to continue to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same. The Full Court should, however, give an opportunity of hearing to the concerned Senior Advocate before any action is taken against them.

Today, the Supreme Court designated 37 advocates as senior advocates.

Six women feature in that list. They are :

1. Madhavi Goradia Divan
2. Anitha Shenoy
3. Aparajita Singh
4. Menaka Guruswamy
5. Aishwarya Bhati
6. Priya Hingorani

Madhavi Divan is at present an Additional Solicitor General in the Supreme Court. She was appointed ASG on December 17, 2018 and will hold office till June 30, 2020. Advocate Divan obtained her law degree from Pembroke College, University of Cambridge, UK, and began her practice in the Bombay High Court. She has since represented two state governments—that of Gujarat and Madhya Pradesh—while also being recognised as an accomplished author.

Anitha Shenoy is a 1995 graduate of National Law School of India University, Bangalore and has been the standing counsel for State of Karnataka in the Supreme Court for long.

Menaka Guruswamy is a 1998 graduate of National Law School of India University, Bangalore. She read law as a Rhodes Scholar at Oxford University where she was awarded a Doctor of Philosophy in Law (D. Phil.) and as a Gammon fellow for a Masters in Law at Harvard Law School.  She has worked as a human rights consultant to the United Nations and has taught at the New York University School of Law. In the Navtej Johar case which decriminalised homosexuality,  Guruswamy represented IIT students and graduates who belong to the LGBTQIA community. She had also assisted the SC as amicus in the Manipur extra-judicial killings case. She has the rare honor of having her portrait unveiled at Rhodes House in Oxford University. Her name was included in the Forbes list of 2019 trailblazers.

Aishwarya Bhati is an Advocate on Record. In year 2017 she was appointed as AAG of Uttar Pradesh in Supreme Court. Bhati described the senior designation as a "dream come true" and that she was conscious of the "great responsibility" that comes with the designation.

Priya Hingorani has been in active law practice since the year 1990 when she was enrolled as an Advocate with the Bar Council of Delhi. Her primary practice has been in the Supreme Court of India, and has also appeared in the High Courts of Delhi, Kolkata, Mumbai, Punjab & Haryana, Odisha, Jharkhand, Bihar, Uttarakhand and Jammu & Kashmir as also Tribunals and subordinate Courts. She has handled matters pertaining to diverse fields of law, including taxation, customs and excise, insurance, family and matrimonial law, commercial law, labour and service law, human rights and constitutional law. 

Aparajitha Singh was a junior to Senior Advocates Harish Salve and U U Lalit, before starting independent practice. She had assisted the apex court as amicus curiae to suggest measures for curbing air pollution, which led to the ban of sale of BSIII vehicles since April 2017. She was also part of a committee which had suggested a common working plan on rehabilitation of destitute widows. 

The Supreme Court yesterday upheld the life sentence awarded to P Rajagopal - the founder of famous South Indian restaurant chain Saravana Bhavan - and five of his aides for murder of Santhakumar in 2001.

The bench of Justices N V Ramana, Mohan M Shantanagoudar and Indira Banerjee dismissed the batch of appeals filed by accused against the 2009 judgment of Madras High Court. The trial court had held Rajagopal guilty under Section 304, Part I IPC (culpable homicide not amounting to murder) in 2004, which was enhanced to punishment under Section 302 IPC(murder) by Madras HC.

The crime was committed with the motive of Rajagopal to take Jeevajothi, the wife of deceased Santhakumar, as his third wife.

"Either upon the advice of an astrologer or having become besotted with PW1(Jeevajothi), Accused No.1(Rajagopal) had evinced a keen desire to take PW1   as   his   third   wife,   though   she   was   already   married   to Santhakumar (the deceased)", observed the Court in that regard.

In order to fulfill this desire, Rajagopal tried to get close to Jeevajothi, who was the daughter of a staff employed in Saravana Bhavan, by offering her financial help and gifts.  Gradually, he started interfering in her personal life,and persuaded her to break away from the relationship with Santhakumar. When she did not yield, Rajagopal resorted to more devious means.

On October 1, 2001, Santhakumar and Jeevajothi were abducted by Rajagopal and his henchmen, and were let off after threats. Eighteen days later, they were again abducted. Jeevajothi was taken to a village, where she was forced to undergo rituals, which were performed with the intention of making her leave Santhakumar.  Santhakumar, who was separately taken away, was supposed to have been killed by a hired goon Daniel. However, Daniel had a change of mind, and spared Santhakumar's life and told him to escape to Mumbai. Daniel told a false story to Rajagopal that Santhakumar had been killed. 

But Santhakumar, instead of escaping to Mumbai, came back to Jeevajothi.  Enraged on knowing this, Rajagopal and his aides abducted them again on October 24, 2001, and  Santhakumar and Jeevajothi were taken away to different locations in separate vehicles.  Weeks later, a dead body was found at Tiger Chola in Kodaikanal, which was identified as that of Santhakumar's.

In relation to the first incident of abduction, Jeevajothi had lodged a complaint before police, upon which an FIR was registered on October 12, 2001. After tracing the dead body of Santhakumar, another FIR for murder was registered on November 20, 2001.

In the appeal before Supreme Court, one of the main points raised by the counsel for accused was that the second FIR was illegal, as there was already an FIR registered for a crime in the same transaction. It was argued that  the second alleged offence was a continuation of the first alleged offence, and separate FIR could not have been registered. Therefore, the investigation and trial on the basis of illegal FIR are wholly vitiated, argued the appellants.

But the SC rejected this argument on the finding that both offences were separate transactions.

"Evidently,   the   time   and   place   of   occurrence   of   the   two incidents are different. Even the number of accused involved in the incidents is different. No continuity of action can be gathered from the sequence of events either", observed the bench.

It further held that mere commonality of motive will not make the offences part of same transaction.

"It may be noted that the motive for commission of both the offences may be the same, inasmuch as they were committed to enable Accused No. 1 to marry PW1, but merely because of their common motive, the second offence cannot be said to be in continuation of the first incident, in light of there being distinct intentions behind the two offences".

The first offence was committed with the intention of threatening and pressurizing Santhakumar. The intention behind the second offence was to permanently get rid of him, noted the bench.

"Therefore, it is evident that unity of purpose and design between the two offences is also absent. Thus, it is amply clear that the incident of murder is entirely separate and distinct from the earlier incident of abduction", observed the judgment authored by Justice Shantanagoudar. Reference was made to the decision in  T.T. Antony v. State of Kerala, (2001) 6 SCC 181 in this regard.

No further investigation for fresh offence committed during investigation 

The Court also rejected the argument that police should have carried out further investigation in relation to murder in the first FIR of abduction, instead of registering a separate FIR.

"In case a fresh offence is committed during the course of the  earlier  investigation,   which  is  distinct  from  the  offence  being investigated,  such  fresh  offence  cannot   be  investigated  as  part  of the pending case, and should instead be investigated afresh", ruled the bench, relying on Awadesh Kumar Jha v. State of Bihar, (2016) 3 SCC 8. 

First FIR can be used as corroborative evidence

The bench also rejected the argument of appellants that first FIR could not have been used as an evidence in the murder trial. The Court noted that the first FIR was not used as a substantive piece of evidence, but as a corroborative piece to show motive of the crime.

Chain of Circumstances Clearly Established.

The case was resting entirely on circumstantial evidence. The  prosecution  mainly   relied  upon  three  circumstances  to  prove the guilt of the accused -  motive, the last seen circumstance and the recovery of the dead body at the instance of one of the accused Daniel, a mercenary hired by Rajagopal.

The SC bench independently evaluated the evidence to "satisfy its conscience" and held that the incriminating circumstances were well established. The consistent testimonies of Jeevajothi and her family members established the motive of the crime. Their testimonies also revealed that the deceased was seen last in the company of the accused. The dead body was recovered based on the confession by one of the accused. Also, the personal belongings of the victim such as gold chain, wallet etc. were recovered from the accused persons. 

The dead body was found to have been identified by Jeevajothi based on his clothes and a scar on his body. Superimposition test was also done to identify the body. The appellants' argument that body could not have been identified without DNA test was not accepted by the bench. Though the court acknowledged that DNA test would have been the best course, it said that there were other pieces of evidence which established the identity. It also endorsed the superimposition test, saying that it was quite often used in police investigation such as Nithari murders, Russian tourist murder in Goa in 2008 and Paharganj bomb blast cases.

The Court termed the testimonies of prosecution witnesses 'overwhelming, steadfast, cogent,  homogeneous, consistent and reliable'. It noted that the accused had not offered any explanation to rebut the strong evidence placed against them.

"Though the burden had shifted onto the accused to explain the   said   circumstance   as   to  when  they   left   the   company   of   the deceased,   no   explanation   was   adduced   in   that   regard   by   the accused   herein.   Hence,   an   adverse   inference   has   to   be   drawn against the accused. It may be noted that such non­explanation by the   accused   provides   an   additional   link   in   the   chain   of circumstances.", said the bench.

The discrepancies in their testimonies pointed out by the appellants were ignored as 'minor' by the bench.

"It is worth recalling  that   while   it   is  necessary  that   proof   beyond  reasonable doubt should be adduced in all criminal cases, it is not necessary that   such   proof   should   be   perfect,   and   someone   who   is   guilty cannot get away with impunity only because the truth may develop some   infirmity   when   projected   through   human   processes", said the bench in that regard. 

"In  our considered opinion, the prosecution has proved the complicity of all the   appellants   in   murdering   Santhakumar   by   strangulating   him and thereafter throwing the dead body at Tiger­Chola", concluded the bench.  

Rajagopal, who was earlier released on bail by SC on medical grounds, has been given time till July 7 to serve sentence.

(Image courtesy : The Indian Express)

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Ahead of the General Elections of 2019, the Supreme Court on Friday issued contempt notices to three Deputy Election Commissioners for the failure of the Election Commission of India to ensure the disclosure of criminal antecedents of candidates, and to the Law Secretary and the Cabinet Secretary for the government of India's omission to bring a law debarring such candidates from contesting elections.

Acting on the plea of an original petitioner and BJP Leader Ashwini Kumar Upadhyay, A bench headed by Justice Rohinton Nariman sought the response of the Union of India and the ECI within one week for their lackness to comply with the constitution bench judgment of the apex court of September 25, 2018.

The five-judge Bench had held that criminalisation of politics is a bitter manifest truth and is a termite to the citadel of democracy, accordingly, thought it appropriate to issue the following directions-

(i) Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii) If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him / her.

(iv) The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

(v) The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media- "When we say wide publicity, we mean that same shall be done thrice after filing of nomination papers", the bench had stressed.

"While 17% candidates in 2014 elections had criminal charges framed against them, eventually the House had 33% of such individuals. Hence, 'prima facie' criminal antecedents did not deter them being placed in Parliament. Numbers of such elected individuals has risen thrice from 2009 elections...It cannot probably be presumed that the electorates of India are deliberately choosing those who are suspected criminals to be their legislative representatives. It could only be that true information of their backgrounds (qualification, criminal antecedents and total assets) and the contents of their affidavits have not been made known to the public. This is despite the Article 19(1) right that is available to a voter at the time of voting. It may be noted that in Krishnamurthy, (2015) 3 SCC 467, this Hon'ble Court has concluded that non-disclosure of antecedents amounts to 'undue influence' and hence the election can be set aside", Upadhyay avers in his contempt pleas.

He points out that on August 10, 2018, the ECI issued a direction to political parties and candidates for publication of criminal antecedents without amending the Election Symbol Order & the Model Code of Conduct, as a result of which the direction has no legal sanction. It had also not released a list of leading Newspapers and News Channels, so the candidates published their criminal antecedents on unpopular platforms. The ECI had also not clarified the timing of the publication, so the criminal history came to be displayed at odd hours with hardly any viewers. The Political parties had neither published the details on their website nor in the newspapers/news channels during the Assembly Elections, but the ECI took no action.

Finally, on March 10, the ECI announced the dates of the Lok Sabha Elections again without amending the Election Symbol Order & Model Code of Conduct.

As an interim relief, Upadhyay has prayed for direction to the ECI "to insert the additional condition: 'political party shall not setup candidate with criminal antecedents' in Paragraph 6A 'Conditions for recognition as a State Party', Paragraph 6B 'Conditions for recognition as a National Party' and Paragraph 6C 'Conditions for continued recognition as National or State Party' of the Election Symbols (Reservation & Allotment) Order, 1968, by using its plenary power conferred under Article 324 of the Constitution"

Further, it shall also "introduce a definition: 'candidate with criminal antecedents means a person against whom charges have been framed at least one year before the date of scrutiny of nominations for an offence with a maximum punishment of five years or more' in paragraph 2 of the Election Symbols (Reservation & Allotment) Order 1968"

The Supreme Court, in its order sentencing Advocate Mathews Nedumpara for contempt, have also issued notice to Vijay Kurle, Rashid Khan Pathan, Nilesh Ojha and Mathews Nedumpara for filing frivolous complaints against Justices RF Nariman and Vineet Saran.

"I have to conclude this judgment with deep pain and anguish as a dastardly act of violence remained unpunished for want of credible and admissible evidence", observed Jagdeep Singh, Special Judge of NIA Court Panchkula, while acquitting all accused in the case relating to bomb blasts in Samjauta Express in 2007 which led to the killing of 68 people.

Former Rashtriya Swayamsevak Sangh (RSS) member Naba Kumar Sarkar alias Aseemanand was a prime accused in the case along with other suspects — Lokesh Sharma, Kamal Chauhan and Rajender Chaudhary. All were acquitted in the verdict pronounced on March 20. The detailed 160 pages judgment was released two days back.

The blasts occurred on the intervening night of February 18/19, 2007, when Samjauta Express, which was bound to Lahore from Delhi, had passed a station near Panipat. As per the prosecution case, the blasts were a part of the concerted design of the accused, who had allegedly formed a hardline organization named 'Abhinav Bharat' to avenge jehadi terrorism. Swami Aseemanand was also alleged to be the mastermind of Mecca Masjid blasts and Ajmer dargah blasts, which occurred in 2007 few months after Samjauta blasts and was acquitted in both the cases by NIA Courts at Jaipur and Hyderabad in May 2017 and April 2018 respectively.

The case was mostly founded mostly upon the confessional statements of Swami Aseemanand. The NIA court found that the confessional statements, which were made before Judicial Magistrate under Section 164 CrPC, were later retracted by him. Since it is settled law that retracted confession cannot be used as a substantive piece of evidence, the Court had to search for corroborative evidence, which was not forthcoming. 

Even otherwise, the court held that the so-called confession of Aseemanand did not contain anything incriminating, as its nutshell was that Sunil Joshi (one of the accused who died during investigation) had told him that Joshi's men had carried out the blasts. 

The extra-judicial confessional statements made by Aseemanand - one to Ajay Chouhan & Shakti Singh in Haridwar while he was hiding from police under the name Swami Omkaranand and another to a prison mate- could not be proved as those witnesses turned hostile. 

No CCTVs, Call Records, Test Identification Parade : Strange omissions by NIA

The NIA Court identified several lapses in the probe by National Investigation Agency(NIA), which prevented the coming of best evidence to the Court. At various places in the judgment, the Court used the expression "very strangely" to denote its surprise at the deficiency in investigation.

It noted that no attempt was made to produce CCTV footage in Court, which could have established the prosecution case that the accused had planted the bombs in the train while it was stationed at Old Delhi Railway Station. It said : 

"...prosecution has failed to collect and bring on record any CCTV footage in order to lend credence to its story regarding involvement of present accused in the crime, especially when investigating office PW224 has admitted in his cross-examination that some CCTV cameras were installed at certain locations of old Delhi railway Station on 18.02.2007.

This much admission on the part of investigating officers further lays bare chinks in the prosecution version, because the best evidence in the shape of CCTV footages has been withheld by the prosecution/NIA. Had the CCTV footages of old Delhi Railway Station been collected by the investigating agency and put to rigorous examination, then some vital leads might have been obtained by it in order to bring the real culprits to justice, but no such evidence has been brought on record". 

The entries in the dormitories of railway station, where the accused had allegedly stayed before planting the bombs, were the also not produced.

"…the record of dormitories, where the passengers made the entry in their own handwriting, were not disposed of and again this court has not got an opportunity to look into a vital piece of evidence because the entries in the handwriting of passengers might have been got compared with the handwritings/signatures of suspects, thereby further providing a vital clue about the involvement of real culprits.", the Court observed regarding this omission.

Also, the police had retrieved the bags in which bombs were planted and had traced that the bags were made in Indore. However, no Test Identification parade of the accused was carried out.

"However, investigating agency, very strangely, has not even bothered to get conducted Test Identification Parade (TIP) of suspects/accused so as to arrive at concrete finding that any of the accused persons facing trial had in fact got the suitcase covers stitched at the said shop and procured for using the same in the occurrence and thus  investigating agency has lost a very valuable piece of evidence by not conducting investigation properly in this regard.

Had the investigating agency got conducted TIP during the course of investigation, the same might have given some vital clue about real culprits involved in the present crime. However, the same has not been done for the reasons best known to the investigation agency". 

The shoddiness of investigation is evident from the fact that it could not even prove the extra-judicial confession stated to have been made by Kamal Chauhan to media when he was produced before court for remand. Chauhan had allegedly planted the bombs in the train.

This evidence was treated so casually that one of the CDs copied from the video camera got corrupted, making it incapable of being played in court. The other CD was not accompanied with the mandatory certificate under Section 65B of the Indian Evidence Act, which is necessary for admissibility of electronic evidence. The camera persons did not support prosecution case and expressed ignorance of any confessional statement being made by Kamal Chauhan.

The Court also noted that one of the prosecution witnesses, Istkaar Ali, had deposed that 10 minutes after the train had set off from Delhi, it halted somewhere for sometime, and someone told him that some persons had gotten off from general coaches. This seemed to suggest that the suspects who had planted the bombs had gotten off from the train during its journey. However, this fact was not investigated, and prosecution put forth the version that accused had not travelled in the train, which was diametrically opposite to the statement of witness.

The Court also noticed that no evidence regarding any meeting between the accused persons necessary to prove charges of conspiracy was produced. Neither any call detail records (CDRs) of any mobile phone nor any other evidence pertaining to ownership and possession of any mobile phone by the accused persons was brought on record. 

'Scientific evidence untapped' :Why finger prints of accused were not examined?

The NIA court could not mince words in expressing disappointment at the prosecution's failure to examine the fingerprints of the accused to match them against the finger prints in the plastic bottles used for blasts. It said :

"...very strangely, it is nowhere made out from evidence produced on record by the NIA that such report of Finger Print Expert was got matched/compared with the finger prints of the suspected persons or the accused so as to get vital clue about the use of plastic bottles in the explosions carried out in Samjhauta Express train blast and again vital piece of evidence in the shape of scientific evidence has remained untapped"

No evidence to prove motive

The Court also bemoaned the fact that there was no evidence to establish the alleged motive behind the crime.

The sole evidence in that regard was a statement by a witness that he had heard Aseemanand speak at Bhopal in April 2008 that Hindus should retaliate jehadi attacks. 

It was found to be sorry attempt by the prosecution, as the said statement was made more than a year after the blasts, and did not reflect that the accused had any such intention prior to the crime.

The Court listed the chinks in prosecution case as follows :

• No iota of evidence to make out any motive on the part of accused
• No evidence to show how the explosives were sourced, prepared, assembled, and planted.
• No credible evidence regarding meeting, planning, association and execution of conspiracy by the accused persons.
• No evidence regarding previous or subsequent conduct of the accused regarding alleged conspiracy.

The Court slammed the prosecution by noting that they relied on evidence in the form of inadmissible confession statements, and disclosure statements of accused which were not admissible as they had not led to discovery of any new fact as per Section 27 of the Indian Evidence Act.

"A few bits here and a few bits there on which prosecution relies cannot be held to be adequate or connecting the accused with the crime in question", it said.

It observed that the NIA "miserably failed" to prove charges against the accused.

"There are gaping holes in the prosecution evidence and an act of terrorism has remained unsolved", lamented the Court.

Read Judgment

The Supreme Court has suspended the Environmental Clearance granted for the development of Greenfield international airport at Mopa in Goa.

The Supreme Court has observed that the High Court, while dealing with an application under Section 11(6) of the Arbitration and Conciliation Act, seeking appointment of an 'independent Arbitrator', should first resort to the mechanism in appointment of an arbitrator as per the terms of contract as agreed by the parties.

A PIL has been filed in the Supreme Court urging that political parties registered with the Election Commission be brought under the RTI Act.

BJP leader Ashwini Kumar Upadhyay has petitioned the court that the political parties registered under Section 29A of the Representation of the People Act, 1951 be declared 'public authority' under Section 2(H) of the RTI Act 2005.

He has also prayed that all registered and recognized political parties be directed to appoint Public Information Officer, appellate authority, within four weeks and make disclosures in letter and spirit of the RTI Act and in the event of non-compliance of the provisions of the RPA, RTI Act, Income Tax Act, Model Code of Conduct and other Election Laws and Rules, the political parties shall be de-recognized by the ECI.

Upadhyay moved court when his representation to the ECI for bringing the political parties under the ambit of the RTI Act fell on deaf ears.

"The injury caused is to public at large because corruption, black money and benami transaction badly affects the right to freely and fairly vote, guaranteed under Article 14, 19 and 21," he said.

Listing the privileges that political parties enjoy, the petitioner said, "The Tenth Schedule of Constitution vests great powers with the Political Parties in as much as they can oust even an elected member, whether Member of Parliament or Legislature of State Assembly, from the Party, if he steps out of party line.

"As per Section 29C of the RPA, donations received by Political Parties are required to be reported to the ECI. This obligation cast on the Political Parties also points towards their public character. Therefore, this Hon'ble Court can declare that political parties are a Public Authority' under Section 2(h) of the RTI Act, 2005 by reading Tenth Schedule of the Constitution with Sections 29A, 29B and 29C of the RPA".

Further emphasising the need to bring the parties under the RTI to make public their affairs, the petitioner said, "The Central and State Governments have allotted land/ buildings/other accommodations in prime locations to Political Parties all over the country either, free of cost, or on very concessional rates. This also amounts to indirect financing of Political Parties. Doordarshan allots free airtime to Political Parties during the elections. This is another instance of indirect financing of the Political Parties. As the Political Parties are the life blood of the entire constitutional scheme in a democratic polity and as they are directly and indirectly financed by the Central and State Governments in various ways, they need to be declared "Public Authority" under Section 2(h) of RTI Act."

Upadhyay also contended that Section 80 GGB of the Income Tax Act, which provides that contribution made by an individual or company to a political party is deductible from total income of the assessee, is a provision exclusively applicable to political parties and suggestive of indirect financing to political parties by the state.

He also relied on how the Central Information Commission, various State Information Commissions and the high courts have held that allotment of land/building on subsidized rates and exemption from various taxes including income tax amount to "indirect financing" in terms of Section 2(h)(d)(ii) of the RTI Act 2005.

It is to be noted that the same issue has been before the CIC. In the year 2013, the CIC declared that they come within the RTI Act. Most parties did not comply. Another RTI activist Subhash Agarwal had also petitioned the apex court on the same issue. 

Read the Petition Here

The idea of any constitution finds its deepest meaning in the role of the people and their actions. The Constitution expects its citizens to fully realise its transformative potential. The transformative potential is important because our framers were also aware of the immense social challenges lying ahead of the times. The duty of transforming the society ultimately lies in the citizens. History would not judge our Constitution by the uniqueness that it exhibited but it would judge them by the transformation it entails.While the three wings of the State are charged with their own constitutional mandates, the mantel of achieving the transformative ideals of the Constitution lies equally with the citizens". said Justice DY Chandrachud on Friday

"Our dialogue with our Constitution, as citizens, cannot be stultified or frozen. That is how you see that the Constitution, which was intended to be one with a strong Centre, has, over the years, come to be an increasingly federalist model which acknowledges differences, which recognizes the strength of the polity in the states where the real power resides today", 

He was addressing the motion 'A borrowed Constitution: fact or myth?' at the celebration of the birth centenary of veteran lawyer and jurist Nani Palkhivala in New Delhi.

The observation assumes significance in the light of a hearing that is currently underway before a five-judge bench of the Supreme Court- the challenge to the introduction as a Money Bill of the 2017 Finance Act, which altered the mode of selection, appointment, removal, and the qualifications and terms of service of the Presiding Officers and Members of as many as 19 tribunals, conferring extensive powers on the Central government in this behalf. The purported intention having been to circumvent the voice of the Rajya Sabha, the Council of States, Justice Chandrachud had on Thursday reflected that in S. R. Bommai, federalism had been held to be a part of the Basic Structure of the Constitution, with Attorney General K. K. Venugopal replying that federalism is a vast motion which by itself could not govern the issue at hand.

At Friday's event, citing the Constitution Bench judgments on inter-state trade and commerce in Atiabari (1960) and Automobile Transport (1962), the judge relayed how it has come to be appreciated that "the states must have a larger role to play in the shaping of the destiny of the nation".

Favouring the practice of judicial borrowing from foreign courts, he explained,

"Many of our core constitutional provisions, like the Fundamental Rights and those governing inter-state trade and commerce, are drafted in abstract terms with a view to allow for their growth with the changing times. The craftsmanship of a judge lies in infusing these words with the soul which we believe the Constitution possesses. In this context, it is useful to look at how the judges in other jurisdictions have similarly considered the problems before them. Through their experience, we question their assumptions which, in turn, serve as stimuli for us to question our own assumptions about our constitutional order. According to scholars, this is not borrowing, but using foreign material to critically re-assess our own constitutional ideas..."

"Justice Scalia of the US Supreme Court often said that foreign legal authorities are not binding and as such should not be used at all. He asked why the US Constitution, which he regarded as most unique in terms of its content and its history, should be confirmed in its interpretation with the readings of the rest of the world...I think that (by virtue of this line of thought), the bond of humanity that links us across jurisdictions, cultures and ideas is ignored...In overturning the decision of the Delhi High Court (de-criminalising homosexuality) in Suresh Kumar Koushal, our Supreme Court refused to engage with the foreign jurisprudence cited by the High Court. It did not consider it to be applicable to ourselves. In Navtej Johar (2018), we overturned this view relying on substantial amounts of comparative materials...

The origin of the Basic Structure doctrine in Kesavananda Bharati was also rooted in the works of a German scholar...Similar to the borrowings of our Constituent Assembly, we have not considered ourselves to be bound blindly by these authorities, but utilized them to broaden our understanding of our rights. After all, The strength of our society is its plurality, and its ability to incorporate change even if it questions some of our Fundamental notions!", he continued.

Finally, Justice Chandrachud urged that, "Judges can and rather should engage in foreign materials in interpreting our own Constitution" and that "doing so will not take away from the Indianness of the Constitution and its identity, because the migration of ideas only contributes to its evolution without transplanting its soul".

In his address, the Apex Court judge endeavoured to, if not discharge, evoke questioning of the oft-quoted myth that our Constitution is virtually an accumulation of ideas and values borrowed from different jurisdictions which the Constituent Assembly has only stitched together-

"One member of the Assembly described it as 'the Music of a Western band as opposed to that of the veena or the sitar'. Another called it 'a Slavish surrender to the West'. But in Dr. B. R. Ambedkar's words, there is nothing wrong with borrowing, there is no plagiarism in it, no-one holds a patent over the fundamental idea of a constitution..."

Justice Chandrachud canvassed how the borrowed provisions were made unique to India before they were incorporated in the text of the Constitution-

"Far from the notion of borrowing Part III (Fundamental Rights) from the American Bill of Rights, it was born in the context of India's history of suppression and the struggle for freedom. Look at the 'due process' clause in both. Confused between the American 'due procedure' and the 'procedure established by law' of Japan, Mr. B. N. Rao visited Justice Felix Frankfurter who explained that the concept of 'due procedure' has resulted in the striking down of several welfare legislation in the US- the government's schemes for fair conditions of work and minimum wages. Accordingly, In view of the nascent stage of our economy, the makers imbibed in Article 21 the 'procedure established by law'"

In as far as the Directive Principle of State Policies in Part IV are touted as having been borrowed from Ireland, the judge advanced that the Principles have their genesis in the Karachi Resolution adopted by the Congress in March 1931 and finally the 1945 Sapru Report which helped outline the difference between what is justiciable and what is not in terms of Parts III and IV of the Constitution.

"Secularism and federalism have a unique interpretation in India. It is a misnomer to say that the principle of secularism found its place in the Constitution after the 42nd Amendment. The Amendment in fact just recognized what was already running through the Constitution. The Indian model of secularism is also different from the US which envisages separation of the State from religion- the Indian State can and does indeed interfere in religion to the extent of a negative aspect which infringes on the Fundamental Rights of citizens"

"The administrative provisions are said to be derived from the Government of India Act of 1935. But, our Constitution being a result of the freedom struggle against the colonial oppressor and the events of partition and the transgressions of that period, the Constituent Assembly envisaged a duality of roles- drafting of the Constitution, and also administering it in the interim to foster a system where it could be effectively utilised. They chose to continue an administrative apparatus as the British to ensure administrative stability. But, in the process, the shift from an absolutist set-up to a democratic one was not at all ignored...Addressing a new cadre of police officers in 1952, Nehru had stressed on the necessity of this shift in the orientation of the Executive- 'The police must not just deal with crime and disorder in the general way, they must deal with human beings not as something to be commanded around but won over'"

"The identity of the Constitution evolves through judicial interpretation, through political conflict and through citizen interfaces...the scope of Article 21 has been broadened to include multiple rights, most recently the right to privacy. Although the courts play a role in developing the identity of the Constitution, we must not be sanguine that the courts read life into it. What they read is a sense of vision which is also limited to the scope of the cases brought before them. The daily interface, as human beings, with the Constitution is more important- to combat the injustices of the society and to rise to the occasion in our daily lives as citizens...", articulated Justice Chandrachud.

The Supreme Court today granted time to 21 political parties time till April 8 to respond to the stand of Election Commission of India that verification of 50& of Voter Verifiable Paper Audit Trails(VVPAT) in all constituencies will delay counting.

The Election Commission has filed counter-affidavit in the matter pointing out logistical difficulties in carrying out 50% verification of VVPAT. This will delay the announcement of results by at least 6 days, said the ECI.

"It is therefore submitted 50% VVPAT slip verification in each assembly segment of a Parliamentary Constituency or Assembly Constituency on an average shall enlarge the time required for counting to about 6 days. It is also relevant to mention that in many Assembly Constituencies, there are more than 400 polling stations, which will require about 8-9 days to complete the VVPAT slip count.", stated the affidavit filed by the poll panel.

This has come in response to a PIL filed by leaders of 21 opposition political parties, demanding counting and cross verification of Voter Verifiable Paper Audit Trails (VVPAT) in at least 50% (randomly chosen) of all polling stations within each Assembly Segment/ Constituency. The petition also challenges the decision of ECI to verify VVPAT of only one randomly selected booth of a constituency. The petitioners say that this will account only for 0.44% of the votes polled. This guideline defeats the entire purpose of VVPAT and makes the same "ornamental" without actual substance, they state.

Last week, the bench headed by Chief Justice Ranjan Gogoi had required the Commission to reply whether it is possible to increase the VVPAT sample survey in every assembly segment.

The Commission has explained that the VVPAT slip is displayed to the voter through a transparent window in the Electronic Voting Machine for about 7 seconds after the casting of vote. Therefore, the voter can verify his vote then and there itself. The necessity of counting the printed paper slips would only arise if there is any discrepancy between the results as shown by the EVM and as reflected on the printed paper slip, submitted the ECI.

The poll panel has also submitted that no foul play was detected while using VVPAT during 2017 assembly elections.

VVPAT is a paper slip generated by the Electronic Voting Machine everytime a voter casts his vote, recording the party to whom the vote was made. This is kept in a sealed cover to be opened only in case of a future dispute.

The ECI had informed the Court in 2017 that VVPAT will be used 100% in future elections. However, the decision taken by the ECI in July 2018 was to verify VVPAT of a randomly selected polling station from a constituency.

 The petitioners are : N Chandrababu Naidu (TDP), Sharad Pawar (NCP), K C Venugopal (INC), Derek O Brien (TMC), Sharad Yadav (LTJD), Akhilesh Yadav (SP), Satish Chandra Mishra (BSP), M K Stalin (DMK), T K Ranga Rajan (CPI(M)), S Sudhakar Reddu (CPI), Manoj Kumar Jha (RJD), Arvind Kejriwal (AAP), Farookh Abdullah (NC) K Danish Ali (RJD),Ajith Singh (RLD), M Badrudding Ajmal (AIUDF), Jithin Ram Manji (Hindusthani Awam Morcha), Ashok Kumar Singh (JVM), Khorrum Anis Omar (IUML) Prof.Kodanadram (Telengana Jana Samithi), and K G Kenye (Naga Peoples Front).

The Supreme Court today declined request for urgent listing of a Special Leave Petition filed against the order of High Court of Andhra Pradesh staying the release and exhibition of Telugu film 'Lakshmi's NTR'.

The biopic directed by Ram Gopal Verma is based on the life of former Chief Minister of undivided Andhra Pradesh, N. T. Rama Rao as narrated from the perspective of his second wife, Lakshmi Parvati. It was slated for release on March 29.

The release of the film close to Lok Sabha elections was objected to by Telugu Desam Party(TDP), and its members filed a PIL in the AP High Court seeking its stay. They contended that the film was highly derogatory towards TDP. They submitted that its director Ram Gopal Verma had released its teaser in his personal twitter handle, seeking opinions from people regarding whether the film will affect the election verdict. According to the petitioners, the film was a calculated move to manipulate election results and called for the intervention of Election Commission of India to ensure free and fair elections.

On March 28, the division bench of Justices A V Sesha Sai and U Durga Prasad Rao found prima facie merit in the arguments of petitioners that screening of the film at a crucial stage before the elections will affect the prospects of one political party, and held that it was necessary for the court to view the film for a "better appreciation of the contents".

Therefore, the Court directed the producer to make arrangements for the screening of the film at 4PM on April 3, and stayed its release until then.

Challenging this order, the producer of the film Rakesh Reddy approached the Supreme Court, contending that "Hon'ble High Court has exceeded its jurisdiction in passing the Impugned Order, as the Hon'ble Judges are not supposed to hold movie screenings and decide whether they ought to be released or not". The SLP states that the film was produced by private parties without any political patronage, and points out that it has clearance from the Central Board of Film Certification. 

Though the counsel for the film producer made an oral mention before the bench of CJI for urgent listing of the petition, it was declined.

(Image courtesy : India Today)

Read the order of AP HC

The Supreme Court on Monday reprimanded the state of Assam for its submission that thousands of illegal immigrants declared as foreigners by its Foreigners Tribunals have absconded and merged with the general public.

The bench headed by Chief Justice Ranjan Gogoi was also miffed by the absence of the state's Chief Secretary from the court. As Solicitor General Tushar Mehta personally undertook to assure his presence next Monday, the bench just stopped short of issuing a non-bailable warrant against the official, though making it categorical that the Chief Secretary shall now make himself readily available until otherwise allowed by the court.

The bench was hearing a PIL filed by activist Harsh Mander through advocate Prashant Bhushan on the plight of foreigners in detention centres. The plea alleges that they were kept in detention indefinitely just because they were not Indians and were treated as "illegal aliens".

"You are saying that the declared foreigners have gone untraceable? How do you intend to identify them and deport them? And what would be the situation as to those against whom the proceedings are pending?", inquired the Chief Justice.

"The state government is just playing with the court! Your affidavits are futile!", remarked an upset Chief Justice, even as the SG sought to convince the court that the Assam government is at the top of the problem at hand.

In respect of the policy of push-back followed until a few year back by way of deportation of the immigrants, Chief Justice Gogoi commented.

On March 13 also, the court had come down heavily on the state government, directing it to reveal the number of persons declared as foreigners by the Tribunals ever since their reconstitution in 2005, the number of persons held in custody in detention centres and the number of persons sent back to their countries of origin- "This has gone too far! This has become a joke! We are not even told that this is the total number of foreigners who have been detected! You say they mingle with the public and are not traceable, so there must be an ex-parte order? Against 60000 cases, you have 800 people (in detention centres)?!...How long are these cases pending?...How are these people manning the Tribunals? How are they are doing this job? Who are the Presiding Officers- How many are advocates, how many are retired judicial officers?...How many tribunals are felt necessary by the state?", Chief Justice Gogoi had rebuked. 

The petition submits that in the absence of a formal agreement between the government of India and the government of Bangladesh on deportation and repatriation of declared foreigners who are identified by Foreigners Tribunals as Bangladeshis and kept in detention, their incarceration is indefinite, arbitrary and violative of Articles 14 and 21. The petition is primarily based on the findings of "deplorable conditions" in such centres, as recorded in the report prepared for the National Human Rights Commission (NHRC) by Mr. Mander himself. The report also highlights various rights violations of detainees, including their right to health, education, family unity, work and recreation and access to legal services.

The petition further points out that while on one hand, the government has wide powers of deportation under the law, on the other hand, there are no clear procedures in place for ascertaining nationality of suspected 'illegal immigrants' and their subsequent deportation to the country of confirmed nationality. This, it says, compounds the problem of pushbacks of alleged illegal immigrants, leading to violation of International law commitments.

Furthermore, the petition notes that the legal basis for such detention stems from Section 2 and 3(2)(e) of the Foreigners Act, 1946 and Para 11(2) of the Foreigners Order, 1948, under which the Government of India has authorized the Government of Assam to set up such detention centers. It, however, asserts that the capacity for indefinite detention is arbitrary and violative of Articles 14 and 21 of the Constitution of India. Besides, the Constitutional provisions, it says, are also violated when people are sent to immigration detention without giving them reasonable opportunity of being heard. Additionally, the petition demands safeguards for juveniles in immigration detention, as well as seeks adherence to various international law principles, treaties and conventions for such detention.

The Supreme Court has reiterated that mere existence of vacancies or empanelment does not create any indefeasible right to appointment.

'Second FIR Not Barred Merely Because Motive In Both Offences Are The Same'; SC Upholds Life Sentence Of Saravana Bhavan Founder For Murder [Pattu Rajan V. State of Tamil Nadu]

The Supreme Court has held that the employer cannot be mulcted with full back wages on the acquittal of an employee by a criminal Court, unless it is found that the prosecution is malicious.

In a major relief to many employees, the Supreme Court has dismissed the Special Leave Petition filed against a Kerala High Court Judgment setting aside Employee's Pension (Amendment) Scheme, 2014 that capped maximum pensionable salary to Rs.15, 000 per month.