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Archives for : Supreme Court

#Goodnews – SC order to release undertrials will come to aid of Muslim prisoners

Deeptiman Tiwary,TNN | Sep 6, 2014, 06.30 AM IST

SC order to release undertrials will come to aid of Muslim prisoners
According to data com piled by the National Crime Records Bureau (NCRB) for 2012, out of 3.8 lakh prisoners, 2.5 lakh are undertrials.

NEW DELHI: Muslim prisoners are likely to be the biggest beneficiaries of the government’s decision to facilitate release of undertrials languishing in jails for long. This is because the rate of undertrial Muslim incarceration is almost twice that of Hindus. Calculated on the number of undertrials per lakh population (of people adhering to that particular religion), while the Hindu undertrial rate is 21.5, the Muslim rate is 38.81, suggesting more Muslims keep languishing in jails without a trial as compared to Hindus.

Another fact pointing to this is that while 17% of the convict population in jails constitutes Muslims, in the undertrial category it is 21%. In the case of Hindus, the reverse is true -71.4% of convicts are Hindus but only 69.9% of un dertrials profess the faith. Similarly, Sikhs constitute 4% of undertrials and 4.9% of convicts while Christians make 3.5% and 4%, respectively . This clearly indicates that Muslims, who constitute just over 13% of India’s population, are at a disadvantage as far as getting bail is concerned.

According to data com piled by the National Crime Records Bureau (NCRB) for 2012, out of 3.8 lakh prisoners, 2.5 lakh are undertrials. Of these, 53,638 (21%) are Muslims. UP , Bihar, Maharashtra and West Bengal have the highest number of Muslim undertrials. But they also have a significant Muslim population.Undertrials languish in jails due to reasons that incldue repeated court adjournments, delays in police, prosecution not being ready , defence lawyers not being prepared, and the jail review systems going defunct, apart from a poor prisoner’s inability to arrange for a lawyer and bail. The situation is worst in states like UP , MP , Maharashtra, Jharkhand and Rajasthan where there is a wide gap in the Hindu and Muslim undertrial rate.Bihar turns out to be one of the best with both Muslim and Hindu undertrial rates neck to neck. Maharashtra is the worst with a difference of over 45 points between the Hindu and Muslim rates.

While this difference may not be entirely due to bias in the criminal justice system, a 2013 report on police attitude towards minorities prepared by three DGPs -Sanjeev Dayal of Maharashtra, Deoraj Nagar of UP and K Ramanujam of Tamil Nadu -and presented to the Centre held that there is a perception of police bias against Muslims. “It has to be admitted that the conduct of some members of the police forces… during communal riots had only served to strengthen these suspicions and distrust in the minority communities,” the report read.

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SC exposes Gujarat Police’s blatant abuse of ‘terror laws’ like POTA and TADA

Gujarat-Police-Desh-Ka-GauravRecently, Gujarat Police is having a very hard time with the Supreme Court. Judgements after judgements in various ‘terror cases’ are shredding apart the integrity of Gujarat Police and putting a big question mark on their capabilities. On July 17, 2014, the Supreme Court, in a landmark judgement, has acquitted all the eleven persons who were convicted and sentenced by a TADA Court in October 2008 for alleged involvement in the ‘twin blasts’ Surat bomb blasts case of 1993. The Supreme Court ruling has come as a shock to the Gujarat government as they looking for enhanced punishment for those in jail.

The eleven persons, including former Congress minister Mohammad Surti have been in jail for 20 years now for a crime that the apex court has found them innocent of. They had been convicted by a TADA court for jail terms ranging from ten to 20 years. The Gujarat police claimed that the genesis of Surat Bomb blast case lay in the demolition of the Babri Masjid on 6th December, 1992, at Ayodhaya which had led to wide-spread communal riots in several parts of the country including Surat. The eleven accused will now be released after twenty long years. The apex court was convinced that it was a misuse of TADA by investing agencies to trap innocent people. The apex court observed how Gujarat Police had failed to follow the mandatory provision of TADA which required approval from DSP. Quoting from the judgement:

Trial and conviction of the appellants for offences with which they were charged is vitiated for breach of the mandatory provisions of Section 20-A (1) of The Terrorist and Disruptive Activities Act (TADA). That provision it was contended required approval of the District Superintendent of Police for recording of any information about the commission of an offence punishable under the said Act. Approval for recording of the information was instead obtained from the Additional Chief Secretary, Home Department, Government of Gujarat who had no power to grant the same so also the purported approval from the Additional Police Commissioner, Surat was of no legal effect

Even otherwise the recovery of the weapons is also not satisfactorily proved by cogent and reliable evidence. Such being the position, we have no manner of doubt left that the conviction of the appellants cannot be sustained.

Not too long back, Supreme Court has passed a similar damning judgement ripping apart Gujarat Police in the 2002 Akshardham terror case. The investigation in Akshardham was conducted by (fake) encounter specialist team of DG Vanzara and GL Singhal. On May 16, 2014, while acquitting all the six accused including three who were sentenced to death in the Akshardham case, the Supreme Court slammed the Gujarat Police for the incompetence with which it conducted the investigation of the Akshardham case. The bench of Justice A.K. Patnaik and Justice V. Gopala Gowda said that there was:

perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us.

Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation
of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing

The acquittal in the Surat blasts case and Akshardham cases show how Gujarat police has abused the so-called ‘terror laws’ like TADA and POTA to trap innocent people over the years. The Congress and its allies had opposed the enactment of POTA in 2002 and the BJP led NDA Government was forced to hold a joint session of the Parliament to get the law passed. All democratic forces had appreciated the efforts of Congress to stop the enactment of a most undemocratic piece of law though it should be remembered that it was Congress who had earlier enacted TADA, which was as bad as POTA. Draconian Laws like TADA and POTA can only be misused, since “terrorism” has never been curbed by “laws”! TADA was grossly misused and thousands of innocent persons, workers, farmers went behind bars under TADA and at that time in 1989, it was BJP, which led the campaign to end TADA.

But after coming to power, the same BJP led NDA enacted POTA and used it against hundreds of innocent Muslims in Gujarat and divided the two communities. In other states like Jharkhand, Andhra Pradesh, Tamil Nadu etc, the poor Adivasis, political activists and even people like Viako, who were part of the ruling party were booked under POTA! It was therefore the turn of the Congress to oppose POTA and wear the cloak of democracy.

It must be noted that TADA and POTA both were repealed prospectively and not retrospectively. We from Jan Sangharsh Manch had fought against POTA and demonstrations were held in six cities. We had also written a letter to Sonia Gandhi requesting her to withdraw the law retrospectively but POTA was not withdrawn retrospectively even after repeated protests and requests. This is the reasons why many innocent people are still languishing in jails across the country.


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#Goodnews – Finally – Supreme Court grants interim bail to Maudany


Abdul Nazir Maudany. File photo
The HinduAbdul Nazir Maudany. File photo

The supreme court on Friday granted one month bail to PDP chief Abdul Nasar Maudany, who has been in Bangalore Central Prison since October 2010.

The conditional bail granted was based on the health grounds. Though he will be provided police security, he will not be under custody, allowing him to take treatment in any hospital of his choice.

SC directed him to take treatment only in Bangalore and said that he should not leave the city at any cost. The other condition includes furnishing Rs. 1 lakh bond as surety and not to tamper evidence and witnesses.

SC also directed the State govt. to provide security to monitor if any violation is done. This is the first time Maudany has been bailed out. Earlier the court allowed him to take treatment at various hospitals and also given five days special permission to attend his daughters wedding in Kerala.

Maudany was arrested in the month of Ramzan four years ago and granted bail in month of Ramzan this year.

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Press Release – Shock over SC Remark on Dowry harassment and 498-A #Vaw

AIDWA expresses its deep dismay and shock at the Supreme Courts remarks in a recent case of dowry harassment that has been reported in the media. While the Court has every right to pass specific orders in a particular case under consideration, there is no reason why they should be extended to all cases of dowry harassment, and made mandatory with threats of contempt of court proceedings in case of non-compliance.

 In any case, it is our experience that in several states, there already exist guidelines regarding the manner in which cases of 498A are to be handled. Senior police officers are required to record the reasons for either arresting or not arresting the accused persons after registration of the FIR which are open to the scrutiny of the court. Moreover, the arrest is usually done only after proper investigation in the reported matter. 

We therefore believe that the SC order is not based on a proper understanding of the situation and displays a lack of appreciation of ground realities.

We are equally disturbed by the comment of the Hon Court that Section 498A is used as a weapon” by disgruntled wives.” Such language is demeaning of women who are subjected to extreme forms of violence and does not befit the highest court in the country, from whom we expect protection of basic human rights. We fear it will lend a handle to those retrograde forces in the country who are as it is pushing for weakening this section and making it compoundable and non bailable. Whereas the Court has expressed concern about the humiliation” of those arrested, we wish to point out that the thousands of women face humiliation and shame because of the physical and mental violence they face day in and day out. Incidentally, as all studies show, only a fraction of them ever reach the police station and even fewer get proper justice from the courts.

We appeal to the Hon Judges to review its own order in the light of hard facts gleaned from police stations that indicate that it is actually a disuse and not misuse of the Dowry Prohibition Act and Section 498A of the IPC which is leading to an increase in crimes against women across the country.

Sd/- Sd/-

Malini Bhattacharya Jagmati Sangwan

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Chief Justice of India hits out at Centre


Chief Justice of India R.M. Lodha
The HinduChief Justice of India R.M. Lodha

Chief Justice of India R.M. Lodha on Tuesday slammed the Centre for unilaterally segregating senior advocate Gopal Subramanium’s name for elevation as a Supreme Court judge without his knowledge and concurrence.

Speaking at a function to bid farewell to Justice B.S. Chauhan on his superannuation, the CJI said “The segregation of Mr. Gopal Subramanium’s name was done unilaterally by the Executive without my knowledge and concurrence which was not proper.”

Referring to Mr. Subramanium’s letter criticising the judiciary for not responding to media reports of the government not approving the proposal for his elevation, the CJI said: “This is one subject, which is non-negotiable. At no cost the independence of the judiciary will be allowed to be compromised. I will not hold my office if I feel that the independence of the institution of the judiciary has been compromised. I failed to understand that the appointment to a high constitutional position has been dealt with [by the government] in a casual manner.”

He said he spoke to Mr. Subramanium on June 24 while he was in Russia and told him he would take the matter forward on his return to India on June 28. However, he was shocked and disappointed to know that Mr. Subramanium had written a letter to him and made it public.

Mr. Subramanium, in his letter to Justice Lodha, had said “If I continue to be a judge-in-waiting, the validity of these appointments is bound to come under a cloud. The least I owe them is that I withdraw. I am, however, unable to dispel the sense of unease that the judiciary has failed to assert its independence by respecting likes and dislikes of the Executive. While harmony between different organs of the State is a desirable feature, the functionality of each organ is meant to have different, defining characteristics. I am more than willing to step out, but I trust you and your colleagues will undertake suitable introspection. The court owes me, in the very least, a clear statement of confidence although my personal character is not dependent on the outcome of such willingness. It is an act of closure, which a Court of Justice owes to its own members. By failing to do it, the court will sink into quicksand.”

The CJI regretted Mr. Subramanium making public his June 25 letter and said “the judiciary cannot react to media reports.” The CJI, however, made it clear that neither he nor other members of the judiciary would ever compromise its independence.

Explaining the sequence of events, the CJI said that on his return to India on June 28, he saw the file from the government returning the proposal on Mr. Subramanium for reconsideration. “I called Mr. Subramanium to my residence and had a talk with him for 75 minutes. I requested him to withdraw his June 25 letter [withdrawing his consent for judgeship] so that I could take up the matter with other collegium judges for reconsideration. Mr. Subramanium said he would respond the next day. On June 29, I received a six-line letter from him reiterating his stand to withdraw his consent. In view of this, the proposal [for recommending his name by the collegium] cannot be reconsidered. I discussed the issue with the members of the collegium and two future CJIs and felt there was no point in pursuing the matter further,” Justice Lodha said.


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Pune Fergusson College , first in India to acknowledge third gender


In a first, Pune’s Fergusson College has included the option of choosing “transgender” in its application forms for academic programs beginning this year. Encouraged by the Supreme Court’s recognition of the third gender in April this year, the college authorities decided to take the step towards inclusion.

Speaking to The Hindu, Principal Ravindra Pardeshi said that it was a unanimous decision by the college authorities and the Deccan Education Society. “We believe that there should be equal space for all identities. After the option was recently exercised in the elections, we thought that it was a logical step for the college to follow. I realise that this is only a preliminary step. We have a long way to go in being inclusive in practice,” Mr. Pardeshi said.

Applications for first year BA (FYBA) and BSc (FYBSc) that are available online have the third gender option. The actual number of students who chose the transgender option will be known after the admission process is completed next month, Mr. Pardeshi said.

For Raunak Patil (name changed to protect identity), a second year student at the college, this is a welcome step. “I come from rural Maharashtra where I did not have the choice of revealing my gender. We are forced to live as males if we want to take advantage of the education system. Mindsets won’t change the moment the option is included on paper, but this is definitely a good move,” he said.

The college plans to have awareness drives and gender sensitisation programs, so that inclusion is not limited to paper. “We will continuously strive to make everyone comfortable with their identity, and create awareness,” Mr. Pardeshi said.

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Borking Gopal Subramanium


  • Just as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.
    The Hindu Archives
  • Just as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.
  • Just as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.
    The HinduJust as President Reagan’s nomination of Robert Bork to be judge of the U.S. Supreme Court was opposed by Democrats and some Republicans in 1987, Gopal Subramanium’s appointment as judge of the Supreme Court is being opposed by the BJP government.

When the Judiciary is in charge of its own appointments, something more substantial than a report based on innuendo is required before impugning a candidate’s integrity

Gopal Subramanium has been publically borked. Bork as a verb is defined by the Oxford English Dictionary as U.S. political slang, meaning: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”

Robert Bork was Solicitor General of the United States under President Nixon. In 1973, when Nixon wanted to fire Archibald Cox, the Special Prosecutor in Watergate, Bork passed the necessary orders after the Attorney General and the Deputy Attorney General had declined to do so. He later explained that he took the decision as he felt constitutionally bound by Presidential directive. The consequences of this action and his other political positions came back to haunt him in 1987, when President Reagan nominated him to be judge of the U.S. Supreme Court, a move opposed by Democrats and some Republicans.

The proposed appointment had Senator Edward Kennedy memorably denouncing Bork’s appointment from the Senate floor: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy…” Bork did not consider any of these lines to be true, but the attack was deadly effective. Bork’s candidature failed on the Senate floor; 58 voted against his confirmation and 42 in favour of it. Six Republicans voted against his appointment.

Reason for oppositionGopal Subramanium did not deserve a Borking. He would have been an asset to the country as a Supreme Court judge. He was literally born and brought up in the Supreme Court as his father was one of the Court’s earliest regular practitioners. Mr. Subramanium and Rohinton Nariman were among the youngest persons to be designated as senior advocates by the Supreme Court. A lawyer highly regarded by the late Justice J.S. Verma, it was Mr. Subramanium and his teams’ extraordinary effort which formed the basis of the Verma report which led to amendments to the rape law after the Delhi gang rape incident in Delhi in 2012. Mr. Subramanium has served as Additional Solicitor General and Solicitor General for over eight years. He worked on Ajmal Kasab’s appeal for a nominal fee of one rupee. Recently, acting as amicus curiae in safeguarding the wealth of the Anantha Padmanabhaswamy temple, Mr. Subramanium went out of his way in cleaning its sacred tank and spending nearly a crore from his own pocket. The Central Bureau of Investigation, which trusted him with cases of national importance, such as those of Ajmal Kasab and David Headley, has now unfairly chosen to weasel out by giving the recent events a colour which they did not originally possess.

Based on reports by the CBI and Intelligence Bureau, the government had returned the recommendation of the Supreme Court for reconsideration by the collegium. The IB report cited an old complaint against Mr. Subramanium by two CBI officers in the 2G probe along with some references made about him in the Radia tapes. The report seemed to be procured on purpose — to be used as a convenient excuse to avoid an inconvenient appointment. It is no secret that the unstated reason for the government’s opposition was that Mr. Subramanium was the amicus curiae in the Sohrabuddin encounter case (Sohrabuddin Sheikh was prosecuted by the same CBI) and in other cases, where senior figures of the current government are allegedly complicit. The government probably apprehended a certain sub-conscious bias against it on Mr. Subramanium’s part.

The government is mistaken in its belief because even if appointed, Mr. Subramanium would have recused himself in all these matters. However, Mr. Subramanium’s withdrawal of consent to be a Supreme Court judge has rendered the question moot. In a country where the Judiciary is in charge of its own appointments, something more substantial than an IB report based on innuendo and hearsay is required before impugning the integrity of the candidate and the appointment process.

During the hearings of the second constitution bench of the Advocates-on-Record Case which dealt with procedures for judicial appointments, Justice Kripal from the Supreme Court bench narrated an experience from the Delhi High Court. An IB report in the case of a prospective appointee mentioned that he was a drunkard. The appointment did not go through at that stage, but the Chief Justice of the Delhi High Court knew that the report was not true. When enquiries were made, it turned out that the appointee drank only on occasion while his friends were habitual drinkers. He was nicknamed ‘boozer’ because of the company he kept, even though he stayed sober. IB sleuths who were charged with finding out more information about the man stumbled on this nickname and drew a damning conclusion. The person concerned was later appointed to the Delhi High Court in a subsequent batch of appointments. The injustice to the candidate was temporary in this case, but in Mr. Subramanium’s case the damage is permanent.

Toeing the lineThis Borking makes the government look like it is seeking a “committed judiciary” in tune with its political philosophy and short-term objectives. Impartiality of a higher judiciary that is vetted and approved is unlikely to be universally accepted. India was ill-served in the past by Mohan Kumaramangalam’s call of the early seventies. Four decades later, it is ill-served by Union Law Minister Ravi Shankar Prasad’s subservience to his party interests. One must remember that the supersession controversy of 1973 had as its inarticulate major premise Indira Gandhi’s desire not to have Justice K.S. Hegde appointed as Chief Justice of India. She won the battle, but the damage caused served as the backdrop to the Emergency and the ADM Jabalpur case, which destroyed her as a democrat.

If engagements as counsel are likely to be seen as disqualifications for judicial office, lawyers of eminence who would have taken unpopular briefs professionally will no longer let their names go forward for consideration. After all it takes great financial sacrifice for a successful lawyer to accept judgeship for a limited period of time. The country will be the loser and not the individual if he is not appointed as a judge. Not very many years ago, before the collegium system was established, Ram Jethmalani had thundered, “There are two kinds of judges — those who know the law and those who know the law minister.” I hope and pray that those days are not coming back.

(Sanjay Hegde is a Supreme Court lawyer.)

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Modi Govt likely to prepare a new industry-friendly Mining law #WTFnews

Govt may bury UPA’s mining law draft

Mineral output has been shrinking significantly in recent years due to judicial oversight of mining in key states such as Karnataka, Goa and Odisha.
Mineral output has been shrinking significantly in recent years due to judicial oversight of mining in key states such as Karnataka, Goa and Odisha.
NEW DELHI: The government could go back to the drawing board to prepare a new industry-friendly law for the mining sector, in the process effectively junking a legislation drafted by the UPA government in 2011 whose provisions were unpopular with miners and, fortuitously for them, had lapsed with the previous Lok Sabha.

The UPA government’s Mines and Minerals (Development and Regulation) Bill of 2011, which aimed to set aside an outdated 1957 legislation that presently governs the sector, makes it mandatory for miners to share their profits.

Mineral output has been shrinking significantly in recent years due to judicial oversight of mining in key states such as Karnataka, Goa and Odisha.

That and a policy paralysis at the Centre had the mining industry worried about the UPA-drafted law’s contentious proposals that prescribed miners sharing 26% of their net profits with local communities affected by their mining operations.

While the Union government has decided to push forward some pending and lapsed bills from the previous Lok Sabha, it is looking at mining laws afresh, said officials.

This is in sync with the prime minister’s directive to all departments to review or repeal archaic laws that have outlived their utility.

“The Mines and Minerals (Development and Regulation) Bill of 2011 had many issues but it has lapsed. The government is now taking a view on whether the law should be comprehensively amended or a new Bill be brought altogether,” said Arun Kumar, joint secretary in the mines ministry.

A decision on the mining law’s fate is expected from the Minister of Steel, Mines and Labour, Narendra Singh Tomar, who is holding meetings with industry leaders this week. India’s mining output has consistently contracted for four years running.

In the last financial year, it fell 1.4%.

The problems afflicting the mining sector has had knockon effects on a range of other industry sectors too and the wider economy. Industries were forced to import raw materials even when they were plentifully available in the country. Industry officials who didn’t want to be identified welcomed the early thinking in the government to frame a new law. The 1957 law, they said, had little relevance in today’s context and needed to go.

“The government should consider declaring mining as a strategic sector as it is critical for manufacturing growth, job creation and saving valuable foreign exchange spent on importing raw materials. Moreover, it can propel growth in some of the most backward states,” said one mining industry official requesting anonymity.

The Mines and Minerals (Regulation and Development) Act of 1957 was last amended in 1999 by the Atal Bihari Vajpayee government, which changed the law’s name to stress the primacy of development over regulation.

Applicable to all minerals except mineral oil, the law originally reserved all major minerals like coal, lignite and iron ore for the public sector and allowed a limited role for private players in minor minerals. It was framed on the basis of the principles enshrined in the Industrial Policy Resolution of 1956, which was significantly overhauled in 1991 when India opened up its markets.

In the 1970s, the law was amended twice, but only to enlarge the government’s control over mining operations and expanded the list of minerals reserved for the public sector.

The UPA had enunciated a National Mineral Policy in 2008, but the MMDR law’s amendments to back the policy could not be passed.

The amendments it had proposed included miners having to share 26% profit with local communities, setting up of courts to fasttrack illegal mining cases, a national mining regulator for major minerals and a central and state level cess on mining output.

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PIL filed for scrapping Hindustan Zinc-Vedanta deal


The PIL filed in the Supreme Court stated that properties of HZL were undervalued and the company sold to Vedanta in 2002 at a throwaway price

Twelve years after the government sold its stake in Hindustan Zinc Ltd (HZL) to Vedanta group during the previous NDA rule, a PIL has been filed in the Supreme Court on Wednesday seeking quashing of the deal.

The petitioner mentioned the case before a bench headed by Justice Vikramajit Sen which refused to give an urgent hearing and listed the matter after vacation.

The petitioner M.L. Sharma, an advocate, alleged that the properties of the company were undervalued and sold to Vedanta group at a throwaway price.

“Issue writ of mandamus to declare/quash impugned undervalued sale transactions of equity shares of HZL dated April 2002 and August 2003 by the disinvestment ministry being illegal, fraudulent within criminal conspiracy,” the petition said.

Vedanta group company Sterlite Opportunities and Ventures (SOVL) holds around 64 per cent stake in HZL. SOVL had initially acquired 26 per cent stake in HZL in 2002.

Subsequently, it bought 20 per cent public holding in the company. In 2003, it acquired additional 18.92 per cent stake from the government exercising call option.


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Akshardham Judgment – The Law at Work

Vol – XLIX No. 25, June 21, 2014 | Ravi Nair 


The Supreme Court judgment in the Akshardham temple attack case has acquitted six innocent men who were tortured and then made to suffer imprisonment. The Supreme Court has come down hard on the investigating agencies of Gujarat and the way in which the lower judiciary has functioned in this case. The apex court must take this forward and revisit the existing prosecutions under the Prevention of Terrorism Act and examine the Unlawful Activities (Prevention) Act which incorporates many of the pota provisions.

Ravi Nair ( is with the South Asia Human Rights Documentation Centre, New Delhi.

This article was earlier posted on EPW’s Web Exclusives Section.

Incredible India it certainly is. On the day that a majoritarian government led by luminaries who are no friends of democratic freedoms and civil liberties was voted in by one-third of the voters in the recent Lok Sabha elections, there was some cold comfort for those who would like to believe in the rule of law.

The Supreme Court in its order of 16 May struck half a blow for the rule of law when it ordered the acquittal of all the innocents framed in the Akshardham temple attack case.1 Four of the six acquitted were released after being in prison for 11 years. Three of them, Adambhai Ajmeri, Abdul Qaiyum Muftisaab Mohmed Bhai and Chand Khan were under sentence of death since July 2006. The fourth, Mohammad Salim Hanif Sheikh, was serving a life imprisonment. The fifth, Abdullamiya Yasinmiya, was on bail after having been in prison for seven years of the 10-year sentence imposed on him by the trial court. The sixth, Altaf Malek, was out after having served his five-year sentence.

The Supreme Court in its judgment expressed itself in no uncertain terms about how innocents are framed and the shoddy nature of investigations, conveying its

anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing (p 280, para 136).

It further declared,

Here, we intend to take note of the perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us… (p 261, para 131).

Falling Short

And yet the reliefs it provided to the acquitted fell far short of what it loftily claimed. There was no court order granting monetary compensation or other restitution for those who had lost 11 years of their lives for a crime they did not commit. No orders were given for the prosecution of those who had held these men in illegal police custody, concealed evidence, fabricated evidence, and committed torture. Nor were there orders against elected and other public officials for dereliction of duty.

The Supreme Court saw the process adopted by the prosecution as flawed. It held the sanction granted as “void” and illustrative of, “clear non-application of mind by the Home Minister in granting sanction” (p 109, para 77). The home portfolio was held at that time by the then chief minister of Gujarat, Narendra Damodardas Modi. His minister of state for home was a worthy by the name of Amit Shah.

The apex court even held the confessional statements obtained under torture and duress as “highly contradictory and improbable in nature” (p 255, para 125).

The Supreme Court is conscious that Parliament has placed the judiciary and the citizen in a situation that borders on the theatre of the absurd. It states,

POTA was repealed in 2004. Yet, the trials, its implementation has entailed, are continuing till date. POTA was repealed for the gross violation of human rights it caused to the accused persons due to abuse of power by the police. This is an important aspect to be kept in mind while deciding this case and hence, it was pertinent to mention this in the beginning to say that we are wary of the abuse the provisions of this Act might bring… (p 97, para 90).

The Dramatis Personae

The initial investigation was done by V R Tolia of the Crime Branch, Gandhinagar, and later by K K Patel of the Anti-Terrorist Squad (ATS). It was later taken over by G L Singhal, Assistant Commissioner of Police (ACP), Crime Branch on 28 August 2003 (p 17, para 8).On the same day Ashfaq Bhavnagri (PW-50) “was interrogated, and he revealed the entire conspiracy as well as the role of A-1 [Malek] and A-3 [Sheikh] in committing the dastardly offences” (p 58, para 41).

Singhal was accused of torture by all the defendants. All six accused

in their retraction statements, complained of having been beaten up by ACP Singhal, V D Vanar and R I Patel, because of which they could not stand up on their feet. On denying their complicity in the Akshardham attack, they were threatened of being encountered. Each accused persons said that every day they were called either by Singhal, V D Vanar or by R I Patel and were forced to admit their complicity in the Akshardham attack (p 45, para 32).

When the accused persons were produced before the Special Court (POTA) on 5 November 2003 all of them

made an oral complaint of police atrocities during the police custody and also complained of having been in police custody for long time. According to each accused person, he was made to sign the confessional statement prepared by the police under coercion and duress and had not made the same of his own free will (p 46, para 32).

The retraction statement of the accused Ajmeri Suleman Adam says it all.

Then Singhal Sahib abused me and told that should agree to what they say. I should agree that I am the criminal of Akshardham carnage. I told them that I have never gone to Akshardgam (sic) nor have I seen it. Kindly do not involve me. He immediately called five or six persons and told me to have handcuffs and fetters. Vanar Saheb beat me on soles. Shri Singhal Saheb told me that I agree with the crime of Askhardham (sic), they shall not beat me and have some benefits. Then they beat me in such a way that I became unconscious and fell down. ….When I became conscious I was near Vanar Saheb office. I suffered much difficulty. I was weeping. It was night. At that time one constable came and told me that superior sahib was calling. I had no strength to walk or stand. I was caught and taken to Vanzara Saheb office. All four officers were present there.
“They told me to agree the crime, otherwise I shall be encountered. But I did not believe.
Then they brutally beat me. There was bleeding in back portion….They gave me currents. Then I told them, sir, have mercy on me. I am not culprit. Pardon me. Please don’t make me criminal wrongly. I do not know anything in this regard. They threatened me to harass me and my family members. Even though I have not committed any crime, they wanted to agree Akshardham crime” (p 231, para 115).

Singhal, who was also an accused in the Ishrat Jehan case was reinstated in service in the last week of May. Earlier, he was enlarged on bail by the court after the Central Bureau of Investigation (CBI) failed to charge sheet him within the mandatory 90-day period. Singhal also figured prominently in the Snoopgate controversy.  Clearly, both the governments of Gujarat and India had conveniently forgotten about Article 311 of the Constitution permitting them to effect summary dismissal of the official.

Second Lead: D G Vanzara

The defence brought out the role of D G Vanzara. It stated that there was

serious doubt about the manner in which the evidence was sought to be fabricated by police officer, D G Vanzara whose entrusting of the case to the Crime Branch on 28.08.2003 suddenly resulted in feverish activity, whereupon the accused persons were arrested and their confessional statements were recorded.

Vanzara was not produced as a prosecution witness. This was not surprising as he went public with his sense of hurt at being let down by his political gods. His cross-examination, had it taken place, would have proved most interesting. The apex court is scathing about the statements of the accomplices,

we fear that the story against the accused persons and its corroboration through the statements of accomplices is an act of concoction to make up a case against them. It was recorded in the statement of [ACP Singhal] that the information regarding PW-50 was given to him by D G Vanzara. However, D G Vanzara had not even been examined in this case and there is no information as to how he came to know about [Bhavnagari] after almost a year of the attack on Akshardham. This very important aspect of the lapse in investigation had been ignored by the courts below. The learned senior counsel for the accused persons have contended that there has been a delay of around a year from the time of the attack on Akshardham in recording the statements of the accomplices which shrouds the case of the prosecution.
We have to accept the contention of the learned senior counsel for the accused persons in this regard as there is an inordinate delay in recording of the statements of the accomplices and this casts a grave suspicion on the reliability of the testimony of the accomplices (pp 182-83, para 96).

Failure of Lower Courts

The role of the lower courts was not a happy one. They failed in not considering the deposition of some brave doctors who deposed in favour of the accused pointing out that they “had complained of severe beating by the police prior to recording of the confessional statements” (p 65, para 48). As is expected in such situations the medical records such as the X-ray plates were missing from the file (p 65, para 48). It is distressing that the lower court and the high court did not take umbrage at the suppression of both evidence and documents by the prosecution.

The defence counsel in the Supreme Court drew attention to the confessional statements of the accused which “were recorded without sufficient time being given for reflection” and was thus in gross violation of the principle laid down by the apex court in a plethora of cases (p 67, para 49).

The attention of the apex court was also drawn to the failure of the lower courts,

to take into consideration the element of fear of further torture by the police, in the minds of the accused persons which was bound to be present, especially when their confessional statements were recorded by PW-78 [Sanjay Gadhvi, Deputy Commissioner of Police] in his office without them being assured of being sent to judicial custody immediately after making their statements (p 67, para 49).

The defence also drew the attention of the apex court to the fact that the confessions were retracted at the earliest available opportunity and that there had to be independent evidence corroborating the confessional statements if they had been retracted (p 71, para 51). The Supreme Court held that the evidence of the accomplices could not be used to corroborate the confessional statements of the accused persons in the absence of independent evidence. Moreover, it stated, “the delay of more than one year in recording their statements causes us to disregard their evidence” (pp 188-89, para 97).

Two letters written in Urdu were allegedly found in the trouser pockets of the alleged militants who were killed during the Akshardham attack,

the post mortem report of the fidayeens stated that all their clothes were stained with blood and mud and all clothes bore multiple tears and holes due to perforation by bullets. In such a case, the fact that the letters remained clean, without any tear, soiling or stains of blood and soil is highly unnatural and improbable… (p 204, para 103).

The Supreme Court also chided the Gujarat High Court pointing out

we cannot accept the recording of the High Court that the secret behind the crease-free unsoiled and unstained letter lies in the divine philosophy of ‘Truth is stranger than fiction ‘for this renowned epithet by the author Mark Twain comes with a caveat that says, ‘Truth is stranger than fiction. Fiction must make sense’ and rejected these letters as evidence (p 204, para 103).

It also discounted the prosecution’s contention that the car already in the possession of the Jammu and Kashmir police at the Special Operations Group camp was the car used to carry weapons from Jammu and Kashmir to Bareilly for carrying out the attack on Akshardham (p 222, para 111).

If the Akshardham judgment is to be taken forward the Supreme Court must be asked to revisit the tenability of all existing prosecutions under POTA. Moreover, its attention should be drawn to the fact that the amendments to the Unlawful Activities (Prevention) Act (UAPA) in 2008 incorporate many of the POTA provisions. Justice was served in this particular case by the extraordinary fortitude of the accused and their families and credit goes to the exemplary work of the defence lawyers in the lower court and the Supreme Court. Clearly, we rejoice in the acquittals in the Akshardham judgment by the Supreme Court but the bench, the bar and citizens need to ask for more whilst also doing more. All of us should emulate Oliver Twist and ask the courts and Parliament to please do some more.


Adambhai Sulemanbhai Ajmeri & Ors Appellants vs State of Gujarat …Respondent with criminal appeal No 45 of 2011, No 2295-2296of2010.pdf

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