The Omnibus Jurisdiction of The SC and Kalawati case of 1953

"Petitioners these days are invoking the jurisdiction of the court in all matters whether it be education or migrants... like an omnibus jurisdiction." hile hearing a plea seeking exemption from payment of school fees in Uttarakhand due to COVID-19, CJI SA Bobde remarked, SEE--Link

https://www.latestlaws.com/latest-news/petitioners-these-days-invoking-sc-s-jurisdiction-in-all-matters-like-an-omnibus-jurisdiction-remarks-cji-sa-bobde/

In context of above oral observation, the observation of a Constitution bench is relevant. It was made in Kalawati vs The State Of Himachal Pradesh (19 January, 1953) AIR 1953 SC 131, 1953 SCR 546

It was a murder case. The deceased husband (a Jaminadr) used to harass and torture his wife (also from a jamindar family). The wife (Kalawati ) developed intimate relationship with a cousin who planned to kill husband. Husband was killed. "The  accused was charged under ss. 114 and 302, Penal  Code, with  abetment of murder.  The Sessions Judge acquitted her of  this charge and convicted her under s. 201, Penal  Code, for   suppressing  evidence  of murder and  giving   false information. 

On appeal by the accused as well as the State, the Judicial Commissioner set aside the conviction under s. 201 and convicted the accused under ss. 114 and 302. However, the Judicial Commissioner of HP "thought that as the confirmation of sentence of death as a matter of practice prevailing in the High Courts was generally made by a Bench of two Judges at least, it was not fit and proper that the matter should rest with his own decision sitting singly."

This was a wise decision because it was matter of death sentence. The Supreme Court did not appreciate the precaution of HP. It held :

"We feel bound to state that the reason he has given for certifying the case as a fit one for appeal under article 134 (1) (c) is not sound. If in any particular State there is only one Judicial Commissioner as the ultimate appellate authority, and if the confirmation of sentence of death has to be made by him, the procedure laid down must be followed. The fact that there is not a Bench of two Judges as in the High Courts to deal with death sentences is not an adequate ground for converting the Supreme Court into an ordinary court of appeal and confirmation in such matters. It is unnecessary, however, to pursue this subject further, as we have heard the two appeals on their merits is well."

There are two points for our consideration. The SC should have appreciated the approach of the Judicial Commissioner because the punishment given was death, which was irreversible. "Abundant caution" doctrine ought to be invoked and the SC should ve encouraged this practice. There are many instances when the higher courts ve invoked better wisdom than the SC.

The second point is regarding the "doctrine of originalism". The SC is not made a court for all jurisdiction. While the capital punishment issue is an exception, matters should not come to the SC just bcz the party can afford. The harm is that the SC is not able to focus on constitutional issues of national importance.

COVID19 AND LESSONS FOR LEGAL EDUCATION SECTOR

COVID19 has greatly impacted the education sector. It has positive as well as  negative implications. Among positive impact, it has fast forwarded the digitised education. For example,  within a span of a month beginning from March, 2020 the schools, colleges, institutes and universities have started adopting the online mode of classes, meetings, examinations etc.

It has also negatively affected the lives of many people. Faculty staff and non faculty staff salary reduction, employment continuity issue during covid19 has emerged as a problem especially for those working in private sector or on a casual or contractual basis. For example, Faculty members are being compelled to join campus even if the work can be finished from home, Suppose you are required to submit a report of a webinar conducted in your institute. It can be done online. Even in the containment zone, the staffs are compelled to join. If you dont join, your salary will be deducted. Can it be regulated, like use of VDO mode of functioning, especially in Maharashtra, Delhi, TN, etc where the cases are rising like Sursa. The staff can be on the table at 10am-4pm, with video mode on so that it is ensured that he really works. Usual recess can be followed. But to deduct salary is unfair  even if h/she is willing to work and deliver. If someone does not deliver on a regular basis, pl take action for non performance. 

Similarly, staff has been asked (read nudged) to join after september. Salary of June, July and August shall not be given. If the private institute is in deep financial trouble, it is bearable.  On the other hand, if the institute is running well, they have students in various semesters, money pouring in, the faculty and non faculty staff ought to be given their due. It is understandable that the first semester admission has taken a toll. Due to COVID related lock down followed by job loss, fresh students are finding it difficult to find (except first semester admission), why this decision. The salary of 4th grade staff has been cut down to half in some institutes bcz they could not turn up during lock down. Can deep pocket theory be incorporated? The top academic bosses should be asked questions why is it happening. Whether article 23 of the Constitution of India comes in picture if you ask the employee to work on low wages? If not, should it be accordingly amended so that white collar corporate educational institutes do not resort to the practice of outrageous exploitation. 

The issues also indicate that the govt sector in higher education is better equipped to enforce dignity under article 21 and equal treatment under article 14 vis a vis a private sector, though the performance and delivery in government  sector colleges and universities are questionable. 

While many private colleges and universities have conducted classes online, whether the similar has been done by govt colleges, and Universities?  

A private college in UP has conducted around 200 classes on zoom, but the state University funded by government has conducted hardly 30 online classes for LLB. One can find that private colleges are conducting webinars on an aggressive scale  but the state funded universities and colleges are lagging far behind, subject to a few distinguished exceptions. The State funded universities and colleges need to take a definite lead in online teaching because they have very qualified teachers, expert professors. They can cater to the needs of poor students from rural back ground. As they are decently paid and mostly permanent, they have obligations also. 

The issue of exploitations in higher educational institutes due to covid needs to be widely discussed and researched by academicians and intellectuals. It has to be published in media and forwarded on whats app, facebook after due verifications. It has to be tweeted and retweeted. The institutions, colleges and Universities have to be made responsible. The Government and judiciary should be pro-active in identifying and addressing these issues. 

The Supreme Court knows its scope during COVID-A response to Sri Dushyant Dave, Sr Advocate

The Supreme Court knows its scope during COVID-A response to Sri Dushyant Dave, Sr Advocate  

Sr Advocate, renowned jurist, human rights activist, vocal crusader of rights, Sri Dushyant Dave was “speaking on the subject of ‘Role of Judiciary in a pandemic’ organized by the All India Lawyers Union.’ His statements were published in Bar and Bench where he assailed the Supreme Court for abdicating its constitutional obligation during the pandemic. His statement has been reported here-- (https://www.barandbench.com/news/covid-19-pandemic-judges-have-singularly-failed-in-holding-the-government-accountable-since-the-last-8-weeks-dushyant-dave)

His argument has five significant points and sixth point is my comment. 

1. “Nation-wide lockdown was imposed at a mere four hour notice”. 

A notice of one week, 3 days, 1 day--what could have been an alternative. Is he conscious what chaos it would have created on the road, railway station at every place, Bus stand, etc? We have already witnessed the problem in Ghaziabad and Mumbai. We already lost around 300 guest (migrants) workers.  

2. He says- “Constitution framers really wanted that the Judiciary must supervise and control both, the executive's actions and inactions”. Did the Constitution framers really want that the Judiciary must supervise and control both, the executive's actions and inactions--”control” and “supervise”. Which debate of the Constituent Assembly he is referring to? This idea of “control” is inconsistent with the principle of Separation of Power and provision of the constitution, (like article 50. Separation of judiciary from executive.—The State shall take steps to separate the judiciary from the executive in the public services of the State.)
3. His another allegation is --“But the Judges, I am sorry to say, have either never read the Constitution or if they have read the Constitution, they are not willing to follow the Constitution.” And Judiciary appears to be "singularly and systematically compromised." Dave said. 

Has it been rightly reported? If, so. This statement indicates how sweeping generalisation a responsible senior advocate can make. If a similar statement is made by a judge against a lawyer, the Bar will convene a meeting, call for boycott or go for strike. He is enjoying his free speech and while enjoying he is transgressing the moral and legal limits. 

4. He says that failure of judiciary reminds like failure during emergency and the time of the case of ADM Jabalpur. This fashionable argument has been made so many times in the last few years that it has lost its force.  
5. His next argument is-- “Various High Courts in the country that have many outstanding Judges are remaining silent and not passing orders with the apprehension that any order passed may be overturned by the Supreme Court the next day at the request of the government.” The fear of overturning a decision will not deter an “outstanding judge” to pass an order. Every year many decisions are passed by HCs and many of them are overturned. This is a specious argument. 
6. Dushyant Dave is very well aware of the jurisprudence of judicial review and I am a law man of little academic merit before his towering personality. However, sometimes under certain compulsions even best of the brains cannot appreciate time honoured principles of law. This is called Gandhari blindness. Dushyant Dave is advancing a “rights” based argument which is valid in “normal” or “ordinary” times. Everyone acknowledges that the time for the last few months is not normal. We are facing an invisible enemy called as COVID19. The planet and so our country, is facing grave threat to humanity, like never before in this scientific age. This is not normal but abnormal time. This is not ordinary but an extraordinary time. The principle that directs judicial review in these times is not “rights” (R)based review but “rights with responsibilities” (RwR) based review. Greater deference to the government during extraordinary times is an established principle of constitutional jurisprudence. One may see the precedents in the USA or UK during extraordinary times. The US Supreme Court has upheld the decision of the Government most of the times when the country was facing an enemy. Be it World war [Schenck v. United States. 249 US 47(1919), or cold war or war against terrorism [Kerry v. Din, 576 U.S. (2015) Humanitarian Law Project, 561 U. S.(2010)]

Holmes, J. presented his reasoning for a conservative approach in the case of Schenck v. United States. 249 US 47(1919) as under:  

when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. [Emphasis Added]

This is a war against COVID which is beyond the shadow of doubts. Something that is permissible constitutionally during normal times may not be permissible when the time is difficult. During difficult times it is not wise for the court to look behind the exercise of the government's discretion or to test it by balancing its justification.  The deference applied to during COVID situations is considerably greater than those applied to other cases. Therefore, the Court cannot inquire beyond what is expressly available in the text. Among the possible standards of review, the courts may adopt either a de novo standard or a deferential standard. Deferential standard believes in presumption of constitutionality because it reposes confidence that the lawmakers would not make a law which is contrary to the constitutional principles and policy. De novo standard does not believe in the presumption of correctness. It may go beyond the text to examine the sufficiency and correctness of decision. This is the area where PILs, suo motu actions get wide recognition with heavy and adverse directions against the government. Once the situation will be back to normal (or new normal) the courts will be obliged to examine the correctness of decisions and justified in making fishing inquiry to preserve, protect and promote fundamental rights. Let us have patience. It is not that the judiciary has not committed blunders. There are many. (AN Ray case, ADM Jabalpur, Mathura rape case, PV Narasimha Rao etc). But a low profile judiciary during Epidemic is a correct approach especially when the decisions of the government to deal with COVID19 are largely accepted by political actors at center and State. The judges of the Supreme court and the High courts have very well read the constitution and are conscious of their scope of judicial review during difficult days of pandemic. Dushyant Dave sir, “while the nation is at war, serious, abrasive criticism ... is beyond constitutional protection.” It is better if we go and reread the jurisprudence without prejudices and bias.  

ARNAB GOSWAMI (REPUBLIC TV) CASE : FREE SPEECH AND ABUSE OF LEGAL PROCESS THROUGH FIR

Arnab Ranjan Goswami v. Maharashtra, Writ Petition (Crl) No. 130 of 2020, decided  by a division bench (of the Supreme Court of India) Justice Chandrachud and Justice MR Shah on May 19, 2020--

Justice Krishna Iyer in Prem Shankar v. Delhi Administration, (29 April, 1980) AIR 1980 SC1535 rightly observed that "When they arrested my neighbour I did not protest. When they arrested the men and women in the opposite house I did not protest. And when they finally came for me, there was nobody left to protest." Arnab Goswami case reestablishes selective silence and tacit approval on attack on free press by powerful politicians. Arnab Ranjan Goswami, hosted a TV show, on Republic Bharat  on April 21, 2020 on lynching of Palghar Hindu sadhu. “On 16 April 2020, three persons including two sadhus were brutally killed by a mob, allegedly in the presence of the police and forest guard personnel.” Arnab Goswami asked many questions from the Maharashtra government (run by Shiv Sena, Congress Party, NCP etc). His main focus of debate was Mrs Sonia Gandhi. After the TV show, many FIRs were registered against him in various States.   Arnab Goswami approached the Supreme court for protection from arrest and quashing of FIR. The Court granted protection but refused to quash FIR (on technical grounds of jurisdiction). A brief summary (of 56 page pronouncement) with my comments is as under--

1. Constitutional Principles

Free speech, especially journalistic freedom needs great protection though no freedom is absolute. The Supreme court in Arnab Goswami case observed at para 32:  

“India‟s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal. The exercise of that fundamental right is not absolute and is answerable to the legal regime enacted with reference to the provisions of Article 19(2). But to allow a journalist to be subjected to multiple complaints and to the pursuit of remedies traversing multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation has a stifling effect on the exercise of that freedom. This will effectively destroy the freedom of the citizen to know of the affairs of governance in the nation and the right of the journalist to ensure an informed society. Our decisions hold that the right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But we must as a society never forget that one cannot exist without the other.” 

2.            Jurisprudential dynamics 

A harmonious construction between rights of accused (here Arnab Goswami) and rights of victim (here supporters, leaders of Congress Party and six States) is required to be made. The policy is that the “Measures adopted must be the least restrictive measure to effectively achieve the legitimate state aim.” para 33. 

3.            Harassment of accused, Arnab Goswami  was apparent, State action unfair-

The Supreme Court observed : 

 “Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate state aim in prosecuting crime. The manner in which the petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views.” para 33. The Supreme Court asserted that these facts  need intervention by the Apex Court, though partially.  

4.            Multiple FIR quashed but One

Except one FIR, all FIRs against Arnab Goswami were quashed because they were on the same cause of action. The Court applied P1 (Principles-above stated), P2 (Policy-least restrictive action) and P3(Precedent-TT Antony case).  “Following the decision of this Court in TT Antony (TT Antony v State of Kerala (2001) 6 SCC 181, division bench ) that successive FIRs/complaints founded on the same cause of action are not maintainable.” para 53.  

5.            Quashing FIR : Respect judicial hierarchy-High Court has original jurisdiction 

The Supreme court refused to quash the main FIR (or one FIR under question). The basis of refusal was technical and not on merit. It seems Justice Chandrachud rejuvenated the doctrine of “originalism.” He relied on hierarchical structure of judiciary and paid deference to the high court jurisdiction. High court is appropriate forum under 482 CrPC 1973. Article 32 can be used by the Supreme Court. Justice Chandrachud presented his idea of “originalism” as under (para 49): 

“But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained.”

The petitioner, Arnab Goswami did not exercise High court jurisdiction despite a stay on other FIRs in different states in a previous interim order.  

This “originalism” and ‘deference for hierarchy’ has its advantages (and disadvantages). It is good to witness that Justice Chandrachud has exercised restraint in not exercising article 32 or 142 when many orders/decisions of the Supreme Court exhibit “jurisdictional hunger”. He was equally conscious that while originalism and hierarchy be maintained, journalistic freedom should not be a casualty of technicalities of hierarchy. Therefore,  he further extended the protection from coercive action like arrest for the next three weeks.  

6.            Chances of unfair investigation and apprehension of harassment of Arnab Goswami unfounded

The demand of Arnab Goswami to transfer cases to CBI from Maharashtra Police was rejected because they were unfounded. He could not establish chances of bias by Maharashtra Police. (The Police is always a soft target). Mere vague allegations on Police, his procedure, questions raised during investigation cannot be a prima facie ground for change of investigating agency. It needs very strong reasons, like violation of law or genuine chances of bias.  

The TV show of April 21, 2020 (https://www.youtube.com/watch?v=C2i4MMpKu9I) on brutal lynching of Palghar Hindu sadhus, which was hosted by Arnab Goswami used provocative words for Congress President, Mrs Sonia Gandhi. She was referred many times by her original name and place. It can irritate a person who follows the leader. It can be annoying to others. It can be defamatory in nature. In classical sense, it can be immoral and inconsistent with high morals of ethics and journalistic values. However, it cannot attract a penal law. It was within constitutional limits of freedom of speech and expression. No penal provision like 153, 153A or 505 etc can be made out. The words and expressions used do not contain elements of the offences imposed. Moreover, the Police and the Judiciary are obliged to follow the “totality” test. This means one or two statements cannot be the basis of criminal proceeding. The whole content has to be considered. (See. Constitution bench pronouncement of Bharati Press case or State of Bihar v. Shailabala Devi on 26 May, 1952).  Also see, Manzar Sayeed Khan v. State of Maharashtra (5 April 2007) full bench case--

“The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.” 

FIR on Arnab Goswami does not reveal any element of offences mentioned. The High court will quash it without much arguments. (This view was written when the FIR was registered. On May 20, 2020 when the Supreme court order came, my view was upheld because the Court directed no coercive action like arrest. Later the High court also hold the same opinion because it was based on legal principles.) 

7. High Court suspended FIR

On June 30, the High court of Bombay has suspended FIR against Arnab Goswami. Pl see here(https://indianexpress.com/article/india/arnab-goswami-palghar-lynching-case-6483265/). The High court held that : 

“58. Thus, on an overall consideration, we are of the prima facie view that FIR No.164 of 2020 on the face of it does not make out commission of any criminal offence by the petitioner.”

64. On an overall reading of the FIR, statement of the informant and transcript of the broadcast, it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. 

66. From the above it is prima facie evident that clauses 1, 2 and 7 of Bhajan Lal (supra) would be attracted in the facts and circumstances of the case.

67. [Referring the Supreme court order]-]We cannot have the spectacle of a Damocles' sword hanging over the head of a journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain.

69. (3) All further proceedings in FIR No.164 of 2020 before the N. M. Joshi Marg Police Station, Mumbai and FIR No.137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended; and (4) Interim order passed on 09.06.2020 to the effect that no coercive steps shall be taken against the petitioner vis-a-vis the above two FIRs shall continue till disposal of this petition.

It is not very clear what is the meaning of suspension of FIR? Is it equivalent to quashing in this case. As the high court has relied to Bhajan Lal case, it seems it is as good as quashing. As the master has other issues of constitutional importance, the court has not conclusively decided. 

8. Concluding Remarks

The judiciary has followed “rights” jurisprudence. Just because a political party or someone does not like the approach of a journalist (here Arnab goswami), or because he is blunt, uncourteous in asking questions, does not mean he deserved to be intimidated by those in power. This was an attack on freedom of speech, expression and media. The congress regime is infamous for it. They did it during the emergency in 1975-77, they will not hesitate to crush the voice of dissent. When they are not in power in central government, they can unleash this sort of abuse of authority. If they will come in power only god knows what they will do. It is also to be noticed that a group of intellectuals, media, academicians who often throw the argument of freedom and liberty even for those who are convicted terrorists and convicted criminals, have not demonstrated the scant regard for the right to freedom of speech and expression of Arnab Goswami. The support and opposition on the issue of freedom of speech and expression ought to be based on (P5)principles of law, provisions of law, precedents of judiciary, policy and professional opinion. If it is selective and based on prejudices as well as  political orientation, it will be a threat to democracy and freedom of speech.          

NIRBHAYA CASE -TIMELINE

NIRBHAYA CASE -TIMELINE

MUKESH v. STATE OF NCT OF DELHI [1] Criminal Appeal No. 607-608 of 2017

Supreme Court of India

*By Arzoo Chaudhary, (5^th Year, B.A L.L.B) USLLS, GGSIPU under the guidance and supervision of Dr. Anurag Deep, Associate Professor, The Indian Law Institute, New Delhi

Date	Timeline
16.12.2012	Date of Incident- Sexual Assault (Gang Rape) Committed
17.12.2012	Date of registration of FIR
17.12.2012	Accused Ram Singh was arrested
18.12.2012	Accused arrested- Vinay, Mukesh and Pawan
21.12.2012	Accused Akshay was arrested
21.12.2012	Delinquent Juvenile was arrested from Anand Vihar Bus Terminal in Delhi[2]
29.12.2012	Death of the Victim
03.01.2012	Charge Sheet was filed
Investigation Complete within 17 days of the incident
04.02.2012	Supplementary charge sheet filed within 47 days of the incident
11.03.2013	Ram Singh found dead in his prison cell
10.09.2013	Death Penalty awarded to accused Akshay, Vinay, Mukesh and Pawan by the trial court[3]
The Sessions Court passed its judgement within 9 months
13.04.2014	High Court affirmed Death Penalty
The verdict of the High Court came after 5 months from the decision of the Sessions Court
15.03.2014	Supreme Court stayed the execution of Death Sentence of Accused Mukesh and Pawan till 31.03.2014
Appeal filed in the Supreme Court after 11 Months (approx.)
28.04.2014	Original Record of Trial Court and High Court summoned to the Supreme Court
07.05.2014	A fresh volume I- volume X was filed with continuous pagination alongwith Volume XI that contained the translation of all documents in vernacular language[4]
14.07.2014	Execution of Death Sentence of accused Akshay and Vinay stayed.
25.08.2014	The Counsel appearing for the State of NCT of Delhi informs the Supreme Court that as per the New Amendment of Supreme Court Rules, 2013 the matters of Death Sentence must go before the three-judge bench of the court
20.12.2015	Juvenile in Conflict with law was released[5]
04.04.2016	Matter was part heard. Arguments remained inconclusive
08.04.2016	Two Ld. Senior Counsels were appointed as Amicus Curiae, one for petitioners Mukesh and Pawan and the other for Vinay and Akshay
11.07.2016	The Counsel for Petitioners submitted that there is an erroneous impression in the minds of the people that the counsels appearing for petitioners are unable to assist the court and that is why the court has appointed Amicus Curiae Ld. Senior Counsel appearing on behalf of State stated that the Court appointed Amicus Curiae to have perspective from all spectrums
18.07.2016	The Supreme Court reiterated that the Court has complete faith in the intellectual integrity in the objective assistance of the Amicus Curiae
22.07.2016	Hearing Resumed
25.07.2016	Hearing Resumed
29.07.2016	Hearing Resumed
08.08.2016	Hearing Resumed
29.08.2016	Hearing Resumed
02.09.2016	Hearing Resumed
05.09.2016	Hearing Resumed
16.09.2016	Hearing Resumed
26.09.2016	Hearing Resumed
17.10.2016	Hearing Resumed
21.10.2016	Hearing Resumed
24.10.2016	Hearing Resumed
07.11.2016	Hearing Resumed (Orders to re-seal the documents before next hearing that will be inspected by the Counsel for State)
11.11.2016	Hearing Resumed. Ld. Counsel for State inspected the documents who had attended the registry on 09.11.2016
15.11.2016	Hearing Resumed
21.11.2016	Hearing Resumed
25.11.2016	The Ld. Counsel for Petitioner concluded his arguments. Amicus Curiae commenced his arguments for all the convicted persons
28.11.2016	Hearing Resumed
03.12.2016	Amicus Curiae concluded his arguments. Ld. Counsel for State commenced his arguments
05.12.2016	Hearing Resumed
14.12.2016	Hearing Resumed
02.01.2017	The bench was unable to assemble
06.01.2017	Hearing Resumed. Supreme Court seeks mitigating circumstances from the accused
09.01.2017	Hearing Resumed
13.01.2017	Hearing Resumed
16.01.2017	Hearing Resumed
20.01.2017	Hearing Resumed
23.01.2017	Hearing Resumed
30.01.2017	Hearing Resumed
03.02.2017	The Court decides to re-hear the case on the sentencing aspect after the petitioners contend that there has been a violation of procedure.
04.02.2017	Hearing Resumed. Counsel for Petitioner Mukesh and Pawan concluded his arguments. Counsel for Petitioner Vinay and Akshay commenced his arguments
06.02.2017	Hearing Resumed
13.02.2017	Hearing Resumed Affidavits for petitioners were to be filed by 23.02.2017 after conclusion of arguments. Ld. Counsel for state was to file the affidavit by 02.03.2017[6]
06.03.2017	Hearing Resumed
20.03.2017	Additional Affidavits filed. Ld. Counsel for State was granted three days’ time to file a status report
27.03.2017	The Court reserves its verdict
05.05.2017	The Supreme Court upholds the verdict of death sentence of the four convicts
The Supreme Court gave the judgement after a period of 3 years from the date of appeal
22.01.2018	Review Petition of Vinay filed[7]
Filed after 7 months from the date of Supreme Court judgement
09.07.2018	The Court rejects review pleas of three out of four convicts awarded death penalty[8] (Vinay, Mukesh and Pawan)
09.12.2019	Review Petition of Akshay filed[9]
Filed after 1 year and 5 months from the rejection of review plea of the other three accused
18.12.2019	Court rejects the review plea of Akshay[10]
19.12.2019	Delhi High Court dismisses the plea of Pawan Kumar Gupta claiming that he was a juvenile at the time of the offence[11]
07.01.2020	Delhi High Court orders four convicts to be hanged on January 22, at 7 a.m. in Tihar Jail
09.01.2020	Accused Mukesh and Vinay filed Curative Petitions in the Supreme Court
14.01.2020	Curative Petition of Mukesh and Vinay rejected
16.10.2020	Mercy Petition filed by Mukesh to the President of India[12]
17.01.2020	Mercy Petition of Mukesh rejected by the President of India[13]
20.01.2020	Accused Pawan Kumar Gupta filed a SLP in the Supreme Court challenging the order dated 19.12.2019 passed by the High Court of Delhi dismissing the claim of the petitioner of juvenility The Supreme Court dismissed the SLP[14]
25.01.2020	Accused Mukesh moved Supreme Court seeking a judicial review of the rejection of mercy plea by the President
27.01.2020	Supreme Court stated that the execution will be given top priority Mercy petition of Vinay filed to the President[15]
28.01.2020	Accused Akshay filed a curative petition in the Supreme Court[16]
29.01.2020	Court rejected Mukesh’s petition challenging the rejection of mercy plea stating that there is no merit in the contention[17]
30.01.2020	Court rejected the curative petition of Akshay
31.01.2020	Supreme Court rejects the plea of Pawan seeking review of order passed by the Supreme Court which rejected his claim for juvenility[18]
01.02.2020	Date fixed for the hanging of the accused. Order of stay of execution since mercy petition of Vinay was still pending President rejects the Mercy Petition of Vinay[19] Akshay filed his Mercy Petition to the President[20]
02.02.2020	Accused pleaded that they had been sentenced to death by a common order and hence they have to be executed together[21]
05.02.2020	President rejected the Mercy Petition of Akshay[22] High Court permitted the convicts to exercise all the legal remedies available to them within one week[23]
07.02.2020	On 11th February, the Supreme Court will hear the Centre’s plea that challenged the Delhi High Court’s verdict dismissing the petition against the stay on execution of convicts[24]
13.04.2020	The Patiala House Court appointed a new advocate Ravi Qazi to represent Pawan[25]
14.02.2020	The Supreme Court rejected Vinay’s petition which challenged the rejection of his mercy petition[26]
17.02.2020	Mukesh likely to request for a new advocate being disappointed by her making him exhaust all the legal options early[27]

20.03.2020------------------------- All four hanged in Tihar jail. 

	Trial Court	High Court	Supreme Court	President
Death Penalty Affirmed	10.09.2013	13.04.2014	05.05.2017
Review Petition (filed)			22.01.2018 (Vinay) 09.12.2019 (Akshay)
Review Petition (rejected)			09.07.2018 (Vinay, Mukesh) 18.12.2019 (Akshay) 19.12.2019 (Pawan) 31.01.2020 (Review of SLP) (Pawan)
Curative Petition (filed)			09.01.2020 (Vinay, Mukesh) 28.01.2020 (Akshay)
Curative Petition (rejected)			14.01.2020(Vinay, Mukesh) 30.01.2020 (Akshay)
Mercy Petition (filed)				16.01.2020 (Mukesh) 27.01.2020 (Vinay) 01.01.2020 (Akshay)
Mercy Petition (rejected)				17.01.2020 (Mukesh) 01.02.2020 (Vinay) 05.02.2020 (Akshay)
Judicial Review			25.01.2020 (Mukesh) 29.01.2020-Rejected (Mukesh) 14.02.2020-Rejected (Vinay)
Plea for Juvenility		19.12.19- Rejected (Pawan)	20.01.2020-Dismissed (SLP)
Date of Hanging	22.01.2020 (could not be executed) 17.01.2020 (Patiala House Court passed order for hanging on 01.01.2020) 01.02.2020 (stayed by Patiala House Court, Delhi)	07.01.2020 (passed order for hanging on 22.01.2020)

Reasons for Delay[28]

1.      The matter was first admitted to the District Court, which further went to the hands of the Delhi High Court and then an appeal was filed in the Supreme Court of India. The discussion of matter in all the three tiers of judiciary has taken a long time for the matter to be disposed of.

2.      Matter was disposed of by the Sessions court on 10.09.2013 and by the High Court of Delhi on 13.04.2014.

However, the Supreme Court reiterated that there was no delay in filing of the FIR. The sequence of events was natural and the time taken to lodge the FIR is justifiable.

3.      To the top court matter was admitted on 15.03.2014 but it took over three years to give the final verdict on 05.05.2017

4.      There were about 40 hearings between 2014-2017in the Supreme Court which led to indefinite delay in the judgement.

5.      In the Trial Court one of the pleas were that the convicts couldn’t understand English so the convicts were unable to understand the documents of the Trial Court proceedings.  Thousands of pages had to be translated in Hindi for the convicts by the Special Investigation Team (SIT).

6.      A lot of time was lost in the fast-track court by the prosecution trying to counter each and every alibi to make the investigation foolproof.

7.      As per law, a review petition shall be filed within 30 days[29]. But the provision of condonation of delay was exploited to the fullest.

8.      All four petitioners filed their review petitions separately on different dates with long delays. Accused Mukesh filed his review petition after six months, counsel for accused Akshay and Vinay stated that review petition will be filed within a period of three weeks. However, even after Mukesh’s hearing was concluded, he stated that review petition will be filed in another 10 days. Akshay’s review petition was filed almost one and half year after the review petition of other accused had been dismissed (on 09.12.2019) whereas the Review petition of Vinay was filed almost two years ago (on 22.01.2018).

9.      After rejection of all the review petitions, curative petitions were filed (by Vinay and Mukesh on 09.01.2020 and by Akshay on 28.12.2020) in the Supreme Court, leaving no stone unturned to apply all the safeguards provided by law

10.  The Curative Petition’s dismissal followed a mercy petition by Mukesh to the President through Tihar Jail Authorities.The Mercy Petition filedby one of the convicts leads to a stay in the execution of death sentence of all the accused. The Mercy Petition filed on 16.12.2020 was rejected by the President on 17.01.2020

Position of Accused

1.      There were six accused who were alleged to have committed such a heinous offence namely, Mukesh, Vinay, Pawan, Akshay, Ram Singh and a delinquent juvenile.

2.      The four accused Mukesh, Akshay, Vinay and Pawan have been awarded Death Penalty. They were due to be hanged in the Tihar Jail, New Delhi on 22^nd January, 2020. However, following the Mercy Petition by the accused Mukesh and Curative Petition of the accused Akshay, the next date of execution of death sentence has been fixed for 1^st February, 2020.

3.      Accused Ram Singh was found dead in his prison cell on 11.03.2013 before the matter had reached the High Court.

4.      Accused Juvenile[30], was sentence to three years detention to a correction home in accordance with the provisions of the Juvenile Justice Act, 2015. He was shifted to a secret spot a day before he was released.[31]After his release he was kept with an NGO for a few days[32]and currentlyhe is serving as a cook in a dhaba in South India[33]

Role of Accused[34]

1.      The accused Vinay and Pawan robbed the victims of their belongings.

2.      While PW-1 was immobilized by the accused Vinay and Pawan, the accused Ram Singh, Akshay and the Juvenile in Conflict by Law raped her one after the other by taking her to the rear side of the bus.

3.      Accused Mukesh was initially driving the bus but he reduced the speed of the bus and hit PW-1 with an iron rod and thereafter went to the rear side of the bus and raped the prosecutrix.

4.      Ld. Sessions Judge, vide Judgement dtd. 10.09.2013 convicted the accused persons Akshay, Vinay, Mukesh and Pawan under the following sections[35]:

·         120B IPC[36]- Criminal Conspiracy,

·         365/366 IPC[37] r/w section 120B- Kidnapping and Abducting with intent to secretly and wrongfully confine person

·         307 IPC[38] r/w section 120B IPC-Attempt to Murder (PW1)

·         376(2)(g) IPC[39]- Gang Rape with the prosecutrix in pursuance for their conspiracy under Section 377 IPC r/wsection 120B IPC- Unnatural Offence (prosecutrix)

·         302 IPC[40] r/wsection 120B IPC- murder (prosecutrix)

·         395 IPC[41]- dacoity in pursuance of the aforesaid conspiracy;

·         397 IPC[42] r/wsection 120B IPC for the use of iron rods and for attempting to kill PW-1 at the time of committing robbery;

·         201 IPC[43] r/wsection 120B IPC- causing disappearance of evidence

·         412 IPC[44]-Dishonestly receiving property stolen in the commission of dacoity

---

[1](2017) 6 SCC 1, Dipak Mishra, Ashok Bhushan, JJ

[2]https://www.thehindu.com/news/national/delhi-gang-rape-chronology-of-events/article11862316.ece, last visited 25^th January, 2020, 14:26 IST

[3]State v. Ram Singh, Sh. Yogesh Khanna, ADJ, Special Fast Track Courts, Saket District Court

[4]https://main.sci.gov.in/jonew/courtnic/or/2014/9271/or_25966.pdf

[5]https://www.thequint.com/voices/fighting-rape/four-yrs-post-nirbhaya-juvenile-accused-is-a-cook-at-a-dhaba-december-2012-jyoti-singh-damini-sexual-assault-gang, last visited on 25^th January, 2020, 14:35 IST

[6]https://main.sci.gov.in/jonew/courtnic/or/2014/9271/or_198865.pdf

[7]https://main.sci.gov.in/supremecourt/2017/41280/41280_2017_Order_22-Jan-2018.pdf

[8](2018) 8 SCC 149, Mukesh v. State for NCT of Delhi, Review Petition (Crl.) No. 570 of 2017, Dipak Mishra, R, Bhanumati, Ashok Bhushan, JJ

[9]https://www.outlookindia.com/magazine/story/india-news-nirbhaya-case-seven-years-and-counting-10-reasons-why-justice-has-been-delayed/302502 last visited 27th January 2020, 13:44 IST

[10]Akshay Kumar Singh v. State of NCT of Delhi, Review Petition (Crl.) No. 44603 of 2019, R. Bhanumati, Ashok Bhushan, A.S. Bopanna, JJ

[11]Pawan Kumar Gupta v. State, Review Petition (Crl.) No. 1309 of 2019, Delhi High Court, Suresh Kumar Kait J

[12]https://rashtrapatisachivalaya.gov.in/statement-mercy-petition-cases-rejected, last visited 26^th January, 2020, 16:44 IST

[13]ibid

[14]Pawan Kumar Gupta v. State of NCT of Delhi, SLP (Crl.) No. 547 of 2020, Supreme Court of India, R Bhanumati, Ashok Bhushan, A.S. Bopanna, JJ

[15]https://www.outlookindia.com/website/story/india-news-nirbhaya-case-tihar-authorities-to-postpone-hanging-as-convict-files-mercy-plea-with-president/346450 last visited 3rd February, 2020, 12:40 IST

[16]ibid

[17]https://www.indiatoday.in/india/story/supreme-court-nirbhaya-convict-mukesh-plea-challenging-rejection-mercy-plea-1641125-2020-01-29, last visited 29^th January, 2020, 12:40 IST

[18]https://www.indiatoday.in/india/story/nirbhaya-gang-rape-murder-case-chronology-execution-postponed-1642122-2020-01-31, last visited 3^rd February, 2020, 13:20 IST

[19]https://www.news18.com/news/india/mercy-petition-of-nirbhaya-convict-vinay-sharma-rejected-another-approaches-president-2482069.html, last visited 3^rd February, 2020, 14:15 IST

[20]https://economictimes.indiatimes.com/news/politics-and-nation/tihar-officials-to-move-delhi-court-for-execution-date-of-nirbhaya-convicts/articleshow/73838170.cms, last visited 3^rd February, 2020, 14:20 IST

[21]https://www.indiatoday.in/india/story/nirbhaya-convicts-claim-cannot-hang-separately-1642640-2020-02-02 last visited 3^rd February, 2020, 17:40 IST

[22]https://www.livemint.com/news/india/nirbhaya-case-president-rejects-mercy-petition-of-akshay-kumar-singh-11580922179652.html, last visited 8^th February, 2020, 10:04 IST

[23]https://economictimes.indiatimes.com/news/politics-and-nation/nirbhaya-case-delhi-court-dismisses-tihars-plea-seeking-fresh-date-for-execution-of-convicts/articleshow/74006224.cms?from=mdr, last visited, 8^th February, 2020, 10:06 IST

[24]https://economictimes.indiatimes.com/news/politics-and-nation/nirbhaya-case-sc-to-hear-on-feb-11-centres-plea-against-delhi-hc-verdict/articleshow/74004731.cms, last visited, 9^th February, 2020, 11:46 IST

[25]https://www.indiatoday.in/india/story/nirbhaya-gangrape-murder-case-execution-dates-hearing-postponed-convict-new-lawyer-1646135-2020-02-13, last visited 15^th February, 2020, 15:32 IST

[26]https://timesofindia.indiatimes.com/city/delhi/nirbhaya-case-sc-dismisses-death-row-convict-vinay-sharmas-plea-challenging-rejection-of-mercy-petition/articleshow/74132741.cms, last visited 15^th February, 2020, 14:18 IST

[27]https://www.outlookindia.com/website/story/india-news-nirbhaya-case-unhappy-with-vrinda-grover-death-row-convict-mukesh-to-request-new-lawyer/347346

[28]https://www.outlookindia.com/magazine/story/india-news-nirbhaya-case-seven-years-and-counting-10-reasons-why-justice-has-been-delayed/302502 last visited 27^th January 2020, 13:42 IST

[29]Supreme Court Rules, 2013, Order XLVII Rule 2

[30]Section 74, Juvenile Justice Act, 2015: Prohibition on disclosure of identity of children.

(1) No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published

[31]https://www.indiatoday.in/mail-today/story/nirbhaya-gangrape-case-juvenile-rapist-shifted-to-secret-spot-a-day-before-release-278076-2015-12-20, last visited 24^th January,2020,14:14 IST

[32]https://www.hindustantimes.com/delhi/juvenile-in-2012-delhi-gang-rape-case-unaware-of-verdict-works-as-cook-in-south-india/story-35jbhO8sDu5z8xH3wVbxeN.html last visited 24^th January, 2020, 14:17 IST

[33]https://www.hindustantimes.com/delhi/juvenile-in-2012-delhi-gang-rape-case-unaware-of-verdict-works-as-cook-in-south-india/story-35jbhO8sDu5z8xH3wVbxeN.html, last visited 24^th January, 2020, 14:19 IST

[34]Mukesh v. State of NCT of Delhi (2017) 6 SCC 1, Dipak Mishra, Ashok Bhushan, JJ

[35]Indian Penal Code,

[36][120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

[37]365. Kidnapping or abducting with intent secretly and wrongfully to confine person.—Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully con­fined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

366. Kidnapping, abducting or inducing woman to compel her mar­riage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].

[38]307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.

[39]376(2) Whoever,— (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

[40]302. Punishment for murder.—Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

[41]395. Punishment for dacoity.—Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous impris­onment for a term which may extend to ten years, and shall also be liable to fine.

[42]397. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any per­son, the imprisonment with which such offender shall be punished shall not be less than seven years.

[43]201. Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offend­er from legal punishment, or with that intention gives any infor­mation respecting the offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with 1[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprison­ment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extend­ing to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment pro­vided for the offence, or with fine, or with both.

[44]412. Dishonestly receiving property stolen in the commission of a dacoity.—Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to be­lieve to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.