Nirbhaya case : SC dismisses curative petitions filed by two of four death row convicts

The Supreme Court Tuesday dismissed the curative petitions filed by two of the four death row convicts in the 2012 Nirbhaya gangrape and murder case.

A 5-judge bench headed by Justice N V Ramana rejected the curative petitions filed by Vinay Sharma (26) and Mukesh Kumar (32).

The proceedings were conducted in-chamber. A curative petition is the last and final legal remedy available to a person.

The five judges were unanimous that there was no merit in the curative petitions filed by the two condemned petitioners.

“The applications for stay of execution of death sentence are also rejected. We have gone through the Curative Petitions and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another, reported in 2002 (4) SCC 388. Hence, the Curative Petitions are dismissed,” the bench said.

The other members of the bench were Justices Arun Mishra, R F Nariman, R Banumathi and Ashok Bhushan.

Vinay and Mukesh had filed curative petitions on January 9.

A Delhi court had on January 7 issued death warrants against the four convicts and said they would be hanged on January 22 at 7 am in Tihar jail.

Two other death-row convicts, Akshay Kumar Singh (31) and Pawan Gupta (25), had not filed curative petitions.

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

The Supreme Court had in 2017 upheld the capital punishment awarded to them by the Delhi High Court and a trial court.

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

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

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

Supreme Court asks J-K administration to review orders imposing curbs within a week.

The Supreme Court on Friday asked the Jammu and Kashmir administration to review within a week all orders imposing curbs in the Union Territory while holding that access to Internet is a fundamental right under Article 19 of the Constitution

A five-judge bench headed by Justice N V Ramana also asked the J-K administration to restore Internet services in institutions providing essential services like hospitals and educational places

The verdict came on a batch of pleas which challenged curbs imposed in Jammu and Kashmir after the Centre’s abrogation of provisions of Article 370 on August 5 last year.

Article 370: Supreme Court reserves verdict on pleas challenging curbs in J-K

The Supreme Court reserved on Wednesday its verdict on a batch of pleas including that of Congress leader Ghulam Nabi Azad challenging the restriction imposed in the erstwhile state of Jammu and Kashmir following abrogation of provisions of Article 370.

A bench of Justice N V Ramana, Justice R Subhash Reddy and Justice B R Gavai reserved the verdict.

Appearing for Azad, senior advocate Kapil Sibal said they understand that there are national security issues in Jammu and Kashmir, but the entire seven million population cannot be “locked down”.

Advocate Vrinda Grover, appearing for Kashmir Times Editor Anuradha Bhasin, termed the curbs “unconstitutional” and said the restrictions have to pass the test of proportionality.

On Tuesday, the Jammu and Kashmir administration justified imposition of curbs on Internet services in the erstwhile state after abrogation of the special status given under Article 370, saying separatists, terrorists and Pakistan’s Army made attempts on social media to instigate people for ‘jihad’.

Solicitor General Tushar Mehta, appearing for Jammu and Kashmir administration, had said that it was not only fighting enemies within but also with those from across the border.

Mehta referred to public speeches and social media posts of former Jammu and Kashmir chief minister Mehbooba Mufti and leaders of National Conference party against the removal of Article 35A, which gave special rights to permanent residents of the state, and Article 370 provisions that granted special status to the state.

Referring to social media app Twitter, Mehta said that “there were thousands of messages on official twitter handles of Pakistan Army, Afghan Taliban and other terror groups meant to instigate the people of Jammu and Kashmir. There was propaganda by Pakistan Army. We would have failed in our duty, if we had not taken precautionary steps”.

He had said that “the only solution is that either you have Internet or you don’t” as it was very difficult to segregate, especially in such a huge area. There were prohibitory orders so that there are no congregations which would have created law-and-order situation, he had said.

On November 21, the Centre justified restrictions imposed in Jammu and Kashmir after the abrogation of provisions of Article 370 and said that due to the preventive steps taken, neither a single life was lost nor a single bullet fired.

The Centre had referred to terror violence in the Kashmir Valley and said that for the past so many years terrorists were being pushed through from across the border, local militants and separatist organisation had held the civilians captive in the region and it would have been “foolish” if the government would not have taken preventive steps to secure the lives of citizens.

Maharashtra crisis: Supreme Court refers to previous judgements on floor test

While ordering floor test for Maharashtra CM Devendra Fadnavis, the Supreme Court Tuesday referred to its past decisions on Karnataka, Uttarakhand, Uttar Pradesh and Jharkhand where it had ordered similar exercise in times of political crisis.

The first decision it mentioned was upholding the disqualification of 17 Congress-JD(S) MLAs in Karnataka by the then Assembly Speaker, which was pronounced on November 13 by the 3-judge bench led by Justice N V Ramana.

Justice Ramana also headed the 3-judge bench in the Maharashtra matter and referred to the Karnataka judgment which had emphasised the requirement of imbibing constitutional morality by constitutional functionaries.

The apex court also mentioned its 2016 verdict in the case of Union of India vs Harish Chandra Singh Rawat in which it ordered the former chief minister of Uttarakhand to take a ‘vote of confidence’ on the floor of the Assembly.

Rawat had moved the apex court after the Modi government dismissed the then Congress government and imposed President’s rule after nine Congress MLAs sided with the BJP on the Appropriation Bill.

The rebel MLAs were subsequently disqualified by the Speaker under the anti-defection law, a decision that was upheld by the high court and the Supreme Court.

The High Court bench was then headed by Justice K M Joseph, who was then the Chief Justice and now the judge in the Supreme Court.

In its order, the top court had directed that “floor test be conducted on a special session of Uttarakhand Legislative Assembly to be summoned/ convened in which the only agenda would be the vote of confidence sought by the first respondent and apart from the said agenda nothing will be discussed”.

It had also issued directions to the chief secretary and the Director General of Police, Uttarakhand, to see that “all qualified Members of the Legislative Assembly, freely, safely and securely attend the Assembly and no hindrance is caused to them”.

The top court had also said that entire proceedings would be video graphed and the recording placed before it.

Holding that if the floor test is delayed, the top court said that there is a possibility of horse trading and it becomes incumbent upon the court to act to protect democratic values.

An immediate floor test, in such a case, might be the most effective mechanism to do so, it said.

It referred to its May 18, 2018 order in which it had directed that a floor test be held in the Karnataka Assembly at 4 pm to ascertain whether BJP chief minister B S Yeddyurappa enjoys majority in the state

The bench, also comprising Justices Ashok Bhushan and Sanjiv Khanna, pointed to the 9 -judge bench decision in S R Bommai case in 1994 in which it had said that “wherever a doubt arises whether the Council of Ministers has lost the confidence of the House, the only way of testing it is on the floor of the House…”

The 9 -judge bench had also held that imposition of President’s rule in states was unconstitutional as the governors did not give an opportunity for a floor test.

The apex court also referred to its 1999 order in the Jagdambika Pal vs Union of India in which it ordered composite floor test between contending parties in order to see which out of the two contesting claimants of chief ministership had a majority in the House.

The matter had come to the Supreme Court after UP Governor Romesh Bhandari sacked Kalyan Singh as chief minister and appointed Congress leader Jagdambika Pal as his successor.

Six years later, in Anil Kumar Jha vs Union of India (2005), the top court had issued similar directions after recording and taking notice of events that had taken place and few developments which were in the offing, as reported in the media.

The apex court had ordered a floor test in the Jharkhand assembly in March 2005 to decide whether Arjun Munda or Shibu Soren enjoyed a majority in the Assembly.

Ten years later, in Union of India vs Harish Chandra Singh Rawat, (2016) again an interim order was passed after the special leave petitions were taken up for hearing, though after concession which was made by Mr Mukul Rohatgi, the then Attorney General for India, that the Union of India has no objection, which the Court had appreciated.

Supreme Court asks Centre to produce governor’s letters inviting BJP to form govt

The Supreme Court on Sunday asked Solicitor General Tushar Mehta to place before it on Monday morning the letters of the Governor recommending revocation of President’s Rule and inviting Devendra Fadnavis to form government in Maharashtra.

A bench of Justices N V Ramana, Ashok Bhushan and Sanjiv Khanna also issued notices to the Centre and Maharashtra government on a petition filed by the Shiv Sena-NCP-Congress combine against the Maharashtra Governor’s decision to swear in Fadnavis as chief minister.

The court also issued notice to Fadnavis and Dy chief minister Ajit Pawar.

The bench asked Solicitor General Mehta to produce letters of the Governor tomorrow at 10.30 am for passing orders.

The apex court declined the fervent request of Mehta seeking two days time to place the Governor’s communication on record.

Senior advocate Kapil Sibal and A M Singhvi, appearing for the combine, told the bench that floor test be conducted today itself so that it can be ascertained that Fadnavis enjoys majority in the house.

They maintained that post-poll alliance of the three parties have the majority in the 288-member house.

While Sibal termed as ‘bizarre’ the Governor’s decision to revoke President’s rule and anoint Fadnavis as the chief minister, Singhvi said it is a “murder of democracy”.

Senior advocate Mukul Rohatgi, appearing for two BJP MLAs and some independents, questioned the maintainability of the writ petition filed by the combine and said they should have approached the Bombay High Court.

 The Supreme Court asks J&K HC Juvenile Justice Committee to examine fresh allegations of detention of minors

The Supreme Court Tuesday asked the four member juvenile justice committee of Jammu and Kashmir High Court to examine afresh allegations of detention of minors by security forces in the state after abrogation of provisions of Article 370.

A bench headed by Justice N V Ramana asked the committee to place its report as expeditiously as possible and posted the hearing for December 3.

The bench said there was a need for examining the allegations afresh as the earlier reports of the committee was not in accordance with the apex court order due to time constraints.

The top court was hearing a petition which has raised the issue of alleged illegal detention of minors in Kashmir.

Supreme Court asks J-K administration to place before it orders imposing restrictions

The Supreme Court on Wednesday asked the Jammu and Kashmir administration to place before it the administrative orders imposing communication and other restrictions in the state following the abrogation of provisions of Article 370.

A bench headed by Justice N V Ramana questioned Solicitor General Tushar Mehta, appearing for the administration, as to why the administrative orders have not been filed yet in the court.

“You had passed some orders. Why you have not filed it?”, the bench, also comprising justices R Subhash Reddy and B R Gavai, asked Mehta. “Is it purposefully done?”

Mehta told the bench that they had filed a reply earlier in the matter but now, there is a change in circumstances as far as restrictions are concerned.

“After filing of the affidavit, there is change in circumstance on the ground. Some restrictions have been removed,” he said.

He said he would place before the top court the administrative orders relating to restrictions for the perusal of the bench only.

“We will place them before the Supreme Court. Nobody can sit in appeal of administrative decisions taken in national interest. Only the court can look into it and certainly not the petitioners,” he told the bench.

Advocate Vrinda Grover, appearing for petitioner and Executive Editor of Kashmir Times Anuradha Bhasin, told the bench that they have filed a rejoinder and said that the Centre and J&K administration have not yet placed those orders and notifications before the court.

Mehta told the bench that original prayer in Bhasin’s petition was regarding restrictions and media freedom but now they were expanding the scope of their prayer.

Grover said in their petition, they have also made a prayer regarding placing of orders imposing restrictions in the state.

During the arguments, the bench took exception that some of the advocates appearing in the matter have raised their voice and said, “It is not proper for lawyers to shout in the court. It is not proper.”

When an advocate appearing for one of the intervenors said that J&K has not complied with the earlier directions of the court to place the restriction orders before it, the bench told Mehta, “Mr Solicitor General, please keep all those orders ready”.

When a lawyer appearing for one of the petitioners told the court that J&K must justify why they are not sharing the restriction orders with them, the bench said, “He (Mehta) has assured us that he will produce those orders”.

The bench has posted the matter for further hearing on October 25.

When the bench referred to media reports that mobile services have been restored in the valley, the counsel for one of the petitioners said only BSNL postpaid mobiles were operational but the SMS service was stopped by authorities on Tuesday.

The apex court was hearing the petitions which have raised the issue of physical restrictions and communication blockade in Jammu and Kashmir following abrogation of provisions of Article 370.

Nobody for opaqueness, but judiciary can’t be destroyed in name of transparency: SC

Nobody wants a “system of opaqueness” but in the name of transparency the judiciary cannot be destroyed, the Supreme Court said Thursday, while hearing the appeals of its registry against the Delhi High Court order that the CJI’s office falls under the ambit of RTI Act.

A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi reserved its verdict on three appeals filed in 2010 by Secretary General of the Supreme Court and the Central Public Information officer of the apex court against the High Court and the CIC’s orders after lawyer Prashant Bhushan and Attorney General K K Venugopal concluded submissions.

“Nobody is for a system of opaqueness. Nobody wants to remain in the state of darkness or keep anybody in the state of darkness. The question is drawing a line. In the name of transparency, you can’t destroy the institution,” said the bench which also comprised Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna.

At the outset, Bhushan, appearing for RTI activist S C Agrawal, said though the apex court should not have been judging its own cause, it is hearing the appeals due to “doctrine of necessity”.

The lawyer termed as “unfortunate” and “disturbing” the reluctance of judiciary in parting information under the Right To Information Act and asked, “Do judges inhabit different universe?”

He said the apex court has always stood for transparency in functioning of other organs of State but it develops cold feet when its own issues require attention.

Referring to RTI provisions, he said they also deal with exemptions and information which cannot be given to applicants, but the public interest should always “outweigh” personal interests if the person concerned is holding or about to hold a public office.

Dealing with “judicial independence”, he said the National Judicial Accountability commission Act was struck down for protecting judiciary against interference from the executive, but this did not mean that judiciary is free from “public scrutiny”.

“This is not the independence from accountability. Independence of judiciary means it has to be independent from the executive and not independent from common public. People are entitled to know as to what public authorities are doing,” he said.

The deliberations of Collegium in appointing and overlooking judges or lawyers should be made public and information can be parted with under RTI on case-to-case basis keeping in mind the larger public interest, he said.

The bench said people, of late, are opting out and do not want to become judges because of the fear of negative publicity.

“Of late, we are experiencing good people, who have opted to become judges, withdrawing their consent. On interaction, the reason appears to be the possibility of the negative observations, whether rightly or wrongly, being brought into the public domain,” it said.

In such a case, besides losing judgeship, reputation, professional life and family life of the person are all adversely affected, it said.

It said it has brought about changes in the functioning of the collegium system and said now collegium members have started interacting with prospective candidates.

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It then referred to a case of a Madras District Judge who was not elevated as the High Court judge and moreover, he was allowed to retire at the age of 58 years.

“All his colleagues who were not even in the zone of consideration for the High Court got the extension, but not only did he not become a High Court judge, he retired at 58”, the CJI said, adding that all the decisions of collegium cannot be “painted” with the same brush.

“Let us not assume any judge has an animus against anybody, let alone the Chief Justice. Otherwise, the institution will dissolve…,” the bench said.

Bhushan then referred to the case of a HC lawyer whose name was recommended and reiterated by the High Court Collegium twice and still the government did not accept and said that people are entitled to know the reasons.

Dealing with the aspect of personal information which can be shared, Bhushan gave an illustration and said suppose a homosexual lawyer’s elevation as a judge is objected to by the government on this ground alone, then this personal information can be disclosed in public interest as people have the right to know.

Justice Chandrachud said certain things may vary from case to case.

He said suppose a judge wanted transfer because of certain kind of illness of his spouse then the nature of disease cannot be disclosed as this is a “personal information”.

The bench said that there cannot be a “blanket” ban on disclosure and it has to be examined on a case-to-case basis.

Justice Gupta said a person himself does not want a disclosure as to his sexuality, then a line would have to be drawn, otherwise it would be “very dangerous”.

The best test would be to ask the person himself if he wanted the reasons for non-elevation or non-appointment to be placed in public domain, the bench said.

Justices Dinesh Maheshwari, Sanjiv Khanna sworn-in as SC judges

Justices Dinesh Maheshwari and Sanjiv Khanna were sworn-in as Supreme Court judges on Friday.

Chief Justice of India (CJI) Ranjan Gogoi administered the oath of office to justices Maheshwari and Khanna during the swearing-in ceremony held in court number 1 of the apex court.

The sanctioned strength of judges in the Supreme Court is 31. With the swearing-in of justices Maheshwari and Khanna, the strength has now gone up to 28.

While Justice Maheshwari was the chief justice of the Karnataka High Court, Justice Khanna was a judge in the Delhi High Court.

The government had on Wednesday notified the appointment of justices Maheshwari and Khanna as judges of the apex court.

The five-member Supreme Court Collegium, comprising CJI Gogoi and justices A K Sikri, S A Bobde, N V Ramana and Arun Mishra, had on January 10 recommended the names of justices Maheshwari and Khanna for elevation as apex court judges.

The names of the chief justices of the Rajasthan and Delhi high courts, justices Pradeep Nandrajog and Rajendra Menon respectively, were considered by the collegium on December 12, 2018 for elevation, but the deliberation remained inconclusive and one of the members of the collegium, Justice M B Lokur, retired on December 30, 2018.

His place in the collegium was taken by Justice Arun Mishra.

The new collegium had, on January 10, ignored the prospect of elevation of justices Nandrajog and Menon as apex court judges.

The Bar Council of India (BCI) had, on Wednesday, protested the Supreme Court Collegium’s recommendation to elevate Justice Khanna by superseding several other judges and termed the decision as “whimsical and arbitrary”.

Before the BCI made a statement protesting the collegium’s decision, Justice Sanjay Kishan Kaul of the Supreme Court also wrote a note to the CJI and other members of the collegium for ignoring the seniority of justices Nandrajog and Menon.

Sources said Justice Kaul was of the view that a wrong signal would go out if the two chief justices, who were above Justice Khanna in the seniority list, were not elevated as apex court judges.

SC to examine CCI jurisdiction on DLF flat owners’ plea

The Supreme Court Wednesday said it will examine whether the Competition Commission of India had the jurisdiction to entertain the plea by flat owners in three DLF residential complexes in Gurgaon who alleged that the real estate giant was exploiting its dominant position on conditions for providing services.

The bench of Justice Sudhansu Jyoti Mukhopadhaya and Justice N.V. Ramana, while making distinction between the “rendering of services” and “imposing the conditions of services”, said they would examine the issue in the light of section 4(2)(a)(1) of the Competition Act, 2002.

The court said if the matter was “rendering of services”, then it would go before the consumer forum.

“Satisfaction with the services provided can be a matter of consumer court,” it said.

Rendering services may not come under the Competition Act, “but imposing the conditions of services may be so whether they are arbitrary, unfair or discriminatory”, the court said, as it directed the hearing of the matter for Feb 18.

Section 4 of the Competition Act prohibits the abuse of dominant position and section 4(2)(a)(1) says there shall be an abuse of dominant position if an enterprise or a group directly or indirectly, imposes unfair or discriminatory condition in purchase or sale of goods or service.

The court said this while hearing a petition by DLF challenging imposition of Rs.630 crore penalty by the CCI for allegedly exploiting its dominant position to the disadvantage of its customers in three projects in Gurgaon.

DLF has assailed the CCI order of Aug 12, 2011, which was sustained by the COMPAT in 2013, saying that the commission could not have imposed penalty based on the three year average of the entire turnover of DLF’s real estate operations in the country.

The real estate giant contended that the penalty should have been restricted to Rs.1,100 crore – the sale price of three housing complexes.

DLF has also challenged the jurisdiction of CCI in entertaining the pleas by the aggrieved flat owners.

The CCI has taken a position that DLF used its dominant position to the disadvantage of the flat allotees.

“It is an exploitation of disadvantaged customers who were trapped,” CCI had told the court.

The association of flat owners and individual flat owners too have moved the apex court