On January 20, 2025, Irfan, a 40-year-old resident of Sambhal, was detained by police following a complaint alleging non-repayment of a loan. Within hours of his detention, Irfan passed away. His family alleged that he was denied access to essential medications despite informing the police of his critical condition. They accused the authorities of custodial torture, a claim denied by the police, who asserted that Irfan suffered a heart attack and cited CCTV footage as evidence.

Eyewitnesses, including Irfan’s son, reported that the police ignored repeated pleas to allow Irfan to take his medication. His wife, Reshma, stated that the family had informed the officers of Irfan’s heart condition, yet their concerns were dismissed. This negligence was highlighted as not just an operational lapse but a systemic disregard for detainee rights and basic humanity. Testimonies from neighbours and community members described Irfan as a law-abiding individual whose arrest and subsequent death were deeply shocking for the local population

Medical reports submitted by the family suggested pre-existing cardiac ailments, further calling into question the police’s decision to ignore his health condition. Legal experts pointed out that procedural safeguards under the BNSS (earlier CrPC) and the guidelines issued by the National Human Rights Commission (NHRC) were blatantly ignored. No medical evaluation was conducted before taking him into custody, a critical violation of NHRC mandates.

 

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The custodial death unfolded in a state notorious for its high incidence of such cases. According to the National Crime Records Bureau (NCRB), Uttar Pradesh leads in custodial fatalities, pointing to systemic lapses in police accountability and adherence to legal procedures.

Outrage and protests

The news of Irfan’s death spread rapidly, sparking widespread public outrage in Sambhal. Hundreds of locals, activists, and political leaders gathered outside the Raisatti police outpost, demanding justice and accountability for what they termed an egregious instance of custodial torture. The protesters carried banners and chanted slogans, urging an independent investigation into the incident. Allegations of inhumane treatment, including the denial of essential medical care, intensified public anger. Eyewitnesses described how the police abandoned the outpost as tensions escalated, leaving it temporarily unmanned. Law enforcement reinforcements, including personnel from the Rapid Action Force, were eventually deployed to manage the situation and restore order.

Political reactions amplified the significance of the protests. Akhilesh Yadav, president of the Samajwadi Party, denounced the custodial death, calling it a “dark stain on the rule of law” under the BJP-led government. He accused the administration of institutionalizing impunity for police excesses. Similarly, Chandra Shekhar Azad, leader of the Bhim Army, pointed to a disturbing trend of custodial deaths disproportionately affecting marginalized communities. He demanded immediate action against the responsible officers and called for systemic police reforms to address such incidents.

Community leaders emphasized that the protests in Sambhal reflected deeper grievances among minority groups, who view custodial deaths as symbolic of institutional bias. Activists highlighted the disproportionately high number of such incidents in Uttar Pradesh, noting that these acts erode trust in law enforcement, especially in minority-dominated areas. The protests became a rallying cry for justice, drawing attention to broader issues of systemic inequities and police misconduct

Judicial commission’s investigation

In response to widespread public pressure and growing national scrutiny, the Uttar Pradesh government established a judicial commission to investigate the custodial death of Irfan and other recent incidents of violence in Sambhal. Headed by retired High Court judge Devendra Arora, the commission visited the region to conduct a thorough inquiry into the events. The investigation aimed to uncover procedural lapses and examine whether Irfan’s fundamental rights were violated during his detention.

The commission undertook multiple tasks, including recording statements from Irfan’s family, community members, and local law enforcement officers. It also reviewed medical evidence, including post-mortem reports, which suggested discrepancies in the police’s official narrative. Reports highlighted a lack of adherence to mandatory procedures, such as the requirement for medical evaluation upon arrest, which is stipulated under the NHRC guidelines and the CrPC (now BNSS).

In addition to investigating Irfan’s case, the commission also expanded its mandate to review broader issues of police conduct in Sambhal. This included an examination of the November 24, 2024, riots, which erupted during a controversial land survey near the Shahi Jama Masjid. Witnesses testified that police inaction and delayed intervention exacerbated communal tensions, leading to widespread violence and property damage. Many residents alleged that the authorities selectively targeted certain communities during the subsequent crackdown..

Systemic concerns and broader implications

The custodial violence in Sambhal is not an isolated incident but a reflection of systemic issues that plague law enforcement across the country. For instance, the case of Somnath Suryavanshi in Parbhani, Maharashtra, on December 15, 2024, mirrors similar patterns. Suryavanshi, a 35-year-old Dalit activist, was arrested following communal violence triggered by the desecration of a replica of the Constitution. While in judicial custody, he complained of chest pain and died shortly thereafter in a state-run hospital. His family alleged police brutality, claiming he was targeted for his Dalit identity and activism. This led to widespread protests, with political leaders, including Rahul Gandhi, asserting that Suryavanshi’s death was a “cent per cent custodial death.” The protests intensified demands for justice and highlighted recurring instances of misuse of power by law enforcement agencies, especially against marginalized communities. These incidents underline the urgent need for systemic reforms to ensure accountability and prevent custodial violence from becoming a normalized aspect of governance

Legal framework governing custodial deaths and torture

The legal implications of custodial torture and deaths in India highlight critical gaps in both legislative enforcement and systemic accountability. Drawing from constitutional mandates, criminal law provisions, and NHRC guidelines, custodial violence remains a grave violation of human rights and judicial directives. Article 21 of the Constitution enshrines the right to life and personal liberty, encompassing protection against inhumane treatment. This is supplemented by Article 22, which provides procedural safeguards during arrest and detention. Yet, these constitutional guarantees are undermined by systemic abuse.

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, replacing the CrPC, introduces critical procedural safeguards to address such violations. Section 196 mandates a magisterial inquiry in cases involving custodial deaths or rapes, emphasizing the role of judicial or metropolitan magistrates over executive magistrates to ensure impartiality. Section 194 empowers district magistrates to conduct inquests, highlighting the increasing responsibility of civil authorities in ensuring transparent investigations. These provisions align with prior guidelines under Section 176(1A) of the CrPC but aim to bridge enforcement gaps by centralizing accountability within the judicial framework.

NHRC guidelines further reinforce this by mandating independent autopsies, immediate reporting of deaths, and time-bound investigations. However, despite these safeguards, the enforcement remains lacklustre. Data reveals that over five custodial deaths occur daily, underscoring the persistent misuse of authority by law enforcement agencies.

Judicial precedents have consistently emphasized the importance of due process in custodial situations. In D.K. Basu v. State of West Bengal 1997 (1) SCC 416, the Supreme Court issued comprehensive guidelines to prevent custodial torture, mandating arrest memos, family notifications, and access to legal representation. Similarly, in Sunil Batra v. Delhi Administration 1980 SCC (3) 488, the apex court decried the use of third-degree methods and indiscriminate handcuffing, terming them violative of Articles 21 and 19.

The lack of adherence to these safeguards in cases like Sambhal and Parbhani not only underscores institutional bias but also highlights the urgent need for systemic reforms. It is imperative that police training incorporates a human rights perspective and that civil society acts as a watchdog to bridge enforcement gaps. Furthermore, India’s failure to ratify the UN Convention against Torture reflects a broader reluctance to institutionalize accountability mechanisms at the international level. This reluctance, coupled with the rising trend of custodial violence, demands immediate legislative and administrative intervention to safeguard the dignity and rights of individuals.

Related:

Rising Concerns as Incidents of Custodial Deaths of Dalits and Muslims Continue Unabated

Custodial deaths highest in Gujarat over 5 years; jails overcrowded

A Muslim man in Hyderabad detained on suspicion of theft reportedly subjected to custodial torture for 5 days

The post Sambhal Custodial Death: A systemic failure exposed appeared first on SabrangIndia.

The Nanded blasts of 2006 and 2008 have been contentious due to their implications on communal dynamics, investigation processes, and judicial outcomes. The juxtaposition of the fact-finding report by a group of Citizens consisting of Justice BG Kolse Patil (former judge) and Teesta Setalvad, journalist and human rights defender back in February 2007and the recent judgment, which termed the explosions as “accidents,” raises questions about evidence interpretation, investigative integrity, and judicial reasoning. This report deconstructs the case using the available documents: the detailed fact-finding report and the Nanded court judgment pronounced on January 4, 2025

Members of the Concerned Citizens Inquiry: Justice (Retd) BG Kolse Patil, Pune (Chairperson) Teesta Setalvad, Mumbai (Convener) and Arvind Deshmukh, Nagpur (Member) Local Support: Vijay Gabhane, Altaf Ahmed, Riyaz Siddiqui, Pradeep Nagarpurkar, Suryakant Wani, Feroz Khan, PD Joshi Patodekar, PG Dasturkar, Chandrakant Gavane. Technical Experts: Medico-Legal and Forensic Experts, Pune (requested anonymity).

Interviews Conducted by CCI Team:  SP Fatehsingh Patil of the district, in the presence of DYSP (Home) Mohsin Khan, PI Ramesh Bhurewar, Assistant SP Sabde. On the spot interviews at the site with neighbours, many of whom chose confidentiality.

Interviews with the owner of the site, Shankarrao Shivram Mangalikar, and his son. Interview with the Civil Surgeon, Dr DL Gaikwad. Interview with the Fire Brigade Officer, Shri V. Jogdand.

Visit to the Itwara Police Station, Rangargalli, Nanded. Meeting with IG Dr Suryaprakash Gupta along with SP Fatehsingh Patil, DYSP Abdul Razzak and DYSP (Rural) Sunita Salunke.

Context and background

The blasts occurred on April 6, 2006, in the house of Laxman Rajkondwar, an RSS-affiliated individual, situated in Nanded, Maharashtra. The explosion resulted in the immediate death of two individuals, identified as Himanshu Panse and Naresh Rajkondwar, and left four others severely injured. Initial police reports attributed the incident to an accidental ignition of firecrackers, allegedly stored in the premises for business purposes. However, further investigations by the Anti-Terrorism Squad (ATS) and subsequently by the Central Bureau of Investigation (CBI) pointed towards a deliberate attempt to manufacture explosives, purportedly with the intent to carry out attacks on religious sites belonging to the Muslim community. Evidence recovered from the site included improvised explosive devices (IEDs), live cartridges, and documents associated with Hindu-extremist organizations like the RSS and Bajrang Dal. The focus of the case, however, gradually shifted due to procedural delays, inconsistencies in the investigative process, and varying judicial interpretations, raising questions about the impartiality and rigor of the investigative and judicial proceedings.

Observations from the citizen’s fact-finding report

Allegations of bias: The initial First Information Report (FIR) filed by the local police labelled the incident as an accidental firecracker explosion (referenced on page 4 of the fact-finding report), ignoring significant evidence at the scene. This characterisation reveals a potential overlooking of primary evidence, as it failed to account for preliminary findings that pointed to bomb-making activities, including the discovery of pipe bombs and splinters embedded in the victims’ bodies (detailed on page 6). The police’s approach raised concerns about a preconceived narrative aimed at protecting certain groups with a powerful presence in society while prematurely ruling out the possibility of deliberate acts of terror.

• Evidence found:
  • Bomb materials: The discovery of pipe bombs, improvised explosive devices (IEDs), and 10 live cartridges (as highlighted on pages 4-6 of the fact-finding report) clearly indicated deliberate preparation of explosives. These materials, found in various stages of assembly, underscored the existence of an operational bomb-making site, where explosives were being prepared with apparent intent for large-scale communal violence.
  • Organisational links: Documents recovered from the site included maps, blueprints, and literature associated with extremist Hindu organizations, including the Rashtriya Swayamsevak Sangh (RSS) and Bajrang Dal (as detailed on pages 5-7 of the fact-finding report). These documents pointed to a coordinated effort to create communal discord, highlighting a systematic approach toward inciting violence and disrupting social harmony.
  • Training records: Several of the accused were revealed to have undergone structured training in bomb-making, arms handling, and guerrilla tactics (as detailed on pages 6-8 of the fact-finding report). Training sessions reportedly occurred at institutions like the Bhonsala Military School in Nagpur, which has been linked to extremist activities in the past. These sessions included live demonstrations on manufacturing explosive devices and handling IEDs, underscoring the organized and premeditated nature of the activities.
  • Camouflaging tactics: The accused employed deliberate tactics to mislead investigators and the public, (as highlighted on pages 7-8 of the fact-finding report). Recovered items included artificial beards, moustaches, and other disguises, which were intended to impersonate Muslim individuals. These materials, coupled with plans and written strategies, revealed a concerted effort to frame Muslim groups for the planned attacks. The recovered evidence also suggested attempts to simulate typical markers of Muslim attire and behaviour, furthering the narrative of extremist involvement from the Muslim community. This orchestrated plan underscored the accused’s intent to sow communal discord while shielding their own affiliations. 

• Intent and targeting:
  • Evidence pointed to a clear intent to target Muslim places of worship, particularly mosques, as part of a broader strategy to foment communal violence. This assertion is supported by detailed maps and reconnaissance reports found during the investigation, as noted on pages 9-11 of the fact-finding report. These materials revealed meticulous planning, including sketches of mosque layouts and identified weak spots for maximizing explosive impact, indicating an intent to cause severe disruption and communal tension.
• Criticism of investigative agencies:
  • ATS and CBI conduct: Both the Anti-Terrorism Squad (ATS) and the Central Bureau of Investigation (CBI) were criticised for failing to rigorously follow up on leads. Despite early indications of a well-coordinated extremist network, the investigation seemed to deliberately avoid exploring deeper institutional links and sources of funding.
  • Dilution of charges: Public outrage followed the decision to dilute charges against several principal accused individuals, casting doubt on the impartiality of the investigative process.
  • Institutional gaps: The investigating agencies failed to examine key elements such as the role of training centres, ideological indoctrination, and the logistical support behind the conspiracy. The report flagged these omissions as deliberate efforts to downplay the organized nature of the activities.
• Public reactions: The fact-finding report noted widespread criticism from secular organisations and civil society groups, who accused the agencies of systemic bias and shielding perpetrators affiliated with Hindu extremist organisations. This eroded public trust and highlighted the need for accountability and transparency in handling such sensitive cases.

These findings emphasise the critical importance of impartial investigations, robust evidence-gathering processes, and institutional accountability to ensure justice in cases involving communal violence and terrorism.

The report may read here:

4. Key findings from the judgment

• Prosecution’s case:
  • The accused were charged under IPC Sections 304 (culpable homicide not amounting to murder), 338 (causing grievous hurt by act endangering life or personal safety), 286 (negligent conduct with respect to explosive substances), and 120B (criminal conspiracy); UAPA Sections 18 and 23 (punishments for conspiracy and aiding unlawful activities); and Explosive Substances Act Sections 4(b) and 5 (making or possessing explosives under suspicious circumstances).
  • The prosecution argued that the accused conspired to manufacture bombs with the intent to commit acts of terrorism and disrupt communal harmony. Evidence of bomb-making materials, extremist literature, and records of targeted reconnaissance were presented to substantiate the charges.

• Court’s observations:
  • The court concluded that the prosecution failed to provide a direct and reliable nexus between the accused and the intent to commit terrorist acts. While materials such as explosives and extremist documents were recovered, the evidence presented was insufficient to demonstrate their connection to specific individuals or a larger conspiracy. The judgment underscored that possession alone, without corroborative intent or action, could not lead to conviction.
  • Forensic evidence deficiencies: Forensic reports failed to conclusively link the recovered materials to the alleged plans for mosque bombings. Splinters and explosive residues recovered at the site could not be attributed to the accused without doubt. Furthermore, mishandling of evidence by investigators was documented, further reducing its reliability.

There is no forensic report about the said articles and there is nothing on record to connect the above articles recovered by this witness with the alleged offences. Para 42 of the judgment

• Witness testimonies and inconsistencies: Key testimonies from investigating officers, forensic experts, and local witnesses were inconsistent. Some witnesses contradicted earlier statements regarding the discovery and handling of explosive devices. The absence of independent corroboration weakened the prosecution’s narrative.

In regard to the rival contentions noted above, it shall be profitable to mention observations of Hon’ble Apex Court in Inder Singh Vs. State [1978 (4) SCC 161] which read as underground –‘if a case has some flaws, the same has to be considered too inevitable because human beings are prone to err, proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes, contradictions and omissions are bound to occur in any case for trial but those cannot disturb or shake or challenge the basic fabric or the core of the case. From the above established position of law, minor aberrations and contradictions cannot harm otherwise believable prosecution case so long as the same does not occasion failure of justice by striking at the root of the case’. Para 67 of the judgment

• Procedural lapses: The court noted significant investigative flaws that compromised the case. Unprotected crime scenes allowed for potential contamination of evidence, raising doubts about the reliability of materials presented during the trial. The chain of custody for key evidence, such as recovered explosive devices and documents, was improperly maintained, with gaps in documentation and unexplained delays. Furthermore, critical forensic samples were either not preserved adequately or lacked proper analysis, diminishing their evidentiary value. Delays in recording witness statements further weakened the prosecution’s case, as memories faded and inconsistencies arose. These procedural deficiencies were highlighted as major contributors to the inability to establish a strong and credible case against the accused.

Rejection of witness intervention:

The application filed by Yeshwant Shinde, a former RSS pracharak, to testify as a witness was dismissed by the court. Shinde’s claims, which included receiving arms training and knowledge of extremist activities linked to the present accused, were deemed inadmissible on procedural grounds. The court ruled that his testimony lacked direct relevance to the charges under scrutiny, thereby excluding potentially crucial evidence from consideration.

To make the record clear, it is mentioned that the matter was stayed by the Hon’ble High Court vide order in Cri. Revn. Appln. No. 57/2012. However the said revision application came to be disposed off and the stay was vacated. Thereafter, on 29.08.2022 one person namely Yahswant Shinde filed an application (Exh.431) to array him as witness in the matter. The said application came to be dismissed on 17.01.2023 Paragraph 3 of the judgment

The judgment may be read here.

5. Comparative analysis

The Citizen’s fact-finding report) highlighted the presence of critical evidence such as pipe bombs, cartridges, and extremist literature. However, the judgment noted significant gaps in linking these materials conclusively to the accused. For example, forensic reports on explosive residues and splinters failed to connect them directly to the alleged plans for communal violence

This report also emphasised the discovery of documents suggesting organisational affiliations and planned targeting of religious sites. In contrast, the court dismissed these as insufficient, citing the lack of evidence to prove intent or actionable steps taken by the accused.

The judgment adhered to strict procedural and legal standards for evaluating evidence, emphasising the need for conclusive forensic proof and direct witness testimonies. This contrasts with the fact-finding report’s broader focus on circumstantial and contextual evidence. The court dismissed materials such as maps and organizational links as speculative in the absence of demonstrable intent or action by the accused.

The initial investigative findings by ATS pointed toward a deliberate attempt at bomb-making with religious targets. However, the subsequent dilution of charges by the CBI and reliance on procedural gaps in court altered the narrative, reducing the focus on organisational links and intent highlighted in the Citizen’s fact-finding report.

This comparative analysis underscores the differing priorities of the fact-finding report and the judicial process. While the report sought to establish a broader socio-political context and intent, the court adhered to stricter evidentiary and procedural standards, resulting in the acquittal of the accused.

(The legal research team of the organisation consists of lawyers and interns; this primer has been worked on by Shailendar Karthikeyan)

Related:

ARCHIVES: Hindutva Terror – The terror trail from Nanded to Malegaon and beyond

Nanded accused indict themselves

2007 – Nanded, Maharashtra: Preliminary Report Bomb Explosions

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Akshay Shinde was an attendant at a school in Badlapur and was arrested in August, 2024 for allegedly sexually assaulting two minor girls in the school toilet. On the 23rd of September, 2024, Shinde was killed while he was being transported from Taloja jail for questioning in another case of sexual assault that had been filed against him by his wife.

The police alleged that Shinde snatched a gun from one of the police personnel present in the van transporting him and opened fire, and he was killed in retaliatory firing that was done as a means of self-defence. He was killed by a Senior Police Inspector while one Additional Police Inspector, two constables and one police driver were present in the van.

Encounter killings are regarded as a legitimate way of law and order enforcement by different sections of society, but the widespread support does not make the action right. Encounter killings stand against the constitutional machinery of India where a person is considered innocent until proven guilty, the constitutional guarantee of ensuring that due process of law is followed, and the principle of proportionality of the punishment. Such arbitrary actions are unconstitutional, illegal and unacceptable.

As per the data collected by the National Human Rights Commission (NHRC), between the years 2016 to 2022, there have been 813 cases of encounter killings that is an average of 1 killing every three days. This data is alarming and raises concerns regarding the arbitrary and illegal actions of the police.

Here is a quick overview of the proceedings in the case –

September 25, 2024 – After a criminal writ petition filed by Anna Shinde, the father of accused Akshay Shinde, the Bombay High Court began hearing the case on the 25th of September, 2024. On 25th September, the court orally stated that it was hard to believe that the accused, who wasn’t a “strong man,” couldn’t be subdued by the police officers accompanying him and that the use of force was necessary. It has been argued by the Petitioner that when he met the accused, his son, on 23rd September, 2024, there was no indication that he was in a troubled state of mind.

Mr. Venegavkar, the learned Public Prosecutor (P.P.) in the case, mentioned that at the time of the transfer, the accused was sitting in the rear end of the vehicle along with an Assistant Police Inspector (API) and two constables, while the Police Inspector (PI) sat in front with the driver. The API later called the PI and informed him that the accused was getting unstable and was quarrelling, after which, the vehicle was stopped and the PI came and sat in the rear end of the vehicle. Shortly after that, the accused snatched the service gun from the API and fired two bullets towards the police officers which missed the officers, and immediately after that, the PI pulled out his service gun and shot at the accused which hit him on his head resulting in his death.

The Court noted that the Human Rights Commission and the Judicial Magistrate be informed of the custodial death as mandated by the law.

October 3, 2024 – On the next hearing of the case, that is on the 3rd of October, 2024, the Court noted that the post-mortem report has been forwarded to the Chief Judicial Magistrate (CJM) for conducting an inquiry under Section 196 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) into the custodial death of the accused Akshay Shinde, and all other documents required for the same would also be transferred at the earliest possible time. Further, the Court requested for the Magisterial Inquiry Report to be expedited.

November 18, 2024 – By an order dated 18th November, 2024, the High Court granted an extension till 2nd December, 2024 for the completion of the magisterial inquiry in the case, and noted that all the necessary documents for the inquiry had been transferred to the Magistrate.

December 2, 2024 – The date for submission of the Magistrate Inquiry Report was further extended to 20th January, 2025 by an order dated 2nd December, 2024 as certain necessary documents had not been submitted to the Magistrate.

January 20, 2025 – On 20th January, 2025, the High Court perused the report submitted by the Magistrate after his inquiry in the case. As per the report, the five police personnel have been held to be responsible for the custodial death of the accused.

Based on the inquiry, the division bench of the High Court, consisting of Justices Revati Mohite Dere and Neela Gokhale, has directed the State government to file an FIR and sought details regarding the agency that will probe this case. The Court directed the Government to provide the details of the agency that will investigate the case to the High Court within a period of two weeks.

The report submitted by the Magistrate has also noted that there were no fingerprints of the accused on the weapon used and no gunshot residue has been detected, therefore the use of force by the police personnel was not justified.

The report has supported the allegations of false encounter made by the father of the accused.

The Court held that apart from providing the State Human Rights Commission with a copy of the magisterial inquiry report as per protocol, a copy should also be provided to the State and the father of the accused who had filed a petition for an investigation into the death of the accused.

This case highlights the dire situation of law and order enforcement in India where it is a common practice for the police to take the law into their own hands without any fear of retribution. There is a rampant abuse of power and disregard for due process and the judicial machinery. Encounter killings are becoming a major reason for erosion of public trust in the judicial system of India. There is an urgent need for reforms in India’s law enforcement system and to increase accountability of the police, so as to act as a deterrent for the police from arbitrarily and wrongly using their power.

Related: 

1. Maharashtra: Two minor girls sexually assaulted, delay in FIR, failure of accountability, attempts to cover up crime
2. Maharashtra: Swift action on protesters, delayed justice for sexual assault against minors, police priorities need to be questioned
3. Bombay HC chastens Maharashtra Police for shoddy investigation in cases involving sexual assault against minors and women

The post Bombay High Court directs filing of a First Information Report (FIR) against the 5 cops held responsible for death of accused in Badlapur Sexual Assault case appeared first on SabrangIndia.

Appointment of Dinesh Waghmare as SEC raises legal concerns

With extensive experience in key administrative roles, including serving as Additional Chief Secretary in the Medical Education Department and as the Chairman of the Maharashtra State Electricity Distribution and Transmission Companies, Waghmare is expected to manage the electoral process for municipal corporations, panchayats, and zilla parishads across the state. Despite his impressive credentials, his appointment has due concerns due to timing of appointment and the landmark 2021 Supreme Court ruling on the independence of SECs, as before his appointment, he was serving as the Principal Secretary of Medical Education and Drugs department with additional responsibility of Employment Guarantee Scheme in Maharashtra. 

The Court’s ruling states that SECs must not hold any other government post, stating that the position must remain free from any political influence to ensure the fairness and credibility of the electoral process. This decision arose from the case State of Goa & Anr. Vs. Fouzia Imtiaz Shaikh & Anr., (2021) where the Court declared that the appointment of a serving government official to the SEC post, like the Law Secretary in Goa, violated constitutional mandates and rendered the office less autonomous. The ruling emphasised that SECs should be independent figures who do not hold other governmental positions, as their primary role is to oversee elections without political interference. In light of this, Waghmare’s appointment as a serving IAS officer who has held prominent government posts raises concerns that it may not align with the Supreme Court’s directive for SEC independence.

However, his role, even if not directly in conflict, could potentially undermine the impartiality of the electoral process, thereby questioning the government’s adherence to the 2021 ruling and the spirit of independence intended for such a crucial constitutional office. 

State election commissioners have to be independent persons, SC held in 2021

The appointment of Waghmare occurs against the backdrop of a significant 2021 Supreme Court ruling regarding the independence of State Election Commissioner (SEC).  On March 12, 2021, the Court ruled in State of Goa & Anr. Vs. Fouzia Imtiaz Shaikh & Anr. (Civil Appeal No. 881 of 2021), where a three-judge bench, led by Justices Rohinton Fali Nariman, B.R. Gavai, and Hrishikesh Roy, set aside the reservation order issued on February 4, 2021, by the Director of Municipal Administration, Goa, and the election notification dated March 4, 2021, issued by the State Election Commissioner (SEC), GIA. These actions altered the original election schedule. 

In the case, the Governor of Goa had appointed the Law Secretary of the Government of Goa, an IAS officer, as the State Election Commissioner on November 3, 2020. The Law Secretary’s duties as SEC were to be in addition to his responsibilities as Law Secretary. Furthermore, on November 5, 2020, Municipal Administrators were appointed by the Department of Urban Development for various municipal councils whose terms had expired. A subsequent notification on January 14, 2021, by the Goa SEC postponed elections for three months, until April 2021 or a later date to be determined by the Commission.

The Supreme Court, however, criticized the government for assigning such an important constitutional office to an individual already under the control of the state government. The bench described this action as a “mockery of the constitutional mandate.”

The Court ruled that, “The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities.”

The Court’s ruling stated, “We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K. The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government.”

The Court further ordered, “If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only persons to this high constitutional office. The directions contained in this paragraph are issued under Article 142 of the Constitution of India so as to ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future.”

The Judgement of Supreme Court dated March 12, 2021 can be read here:

The appointment of Waghmare: resign from his current post to assume the role of SEC

The new appointment of Dinesh Waghmare, as Maharashtra’s new State Election Commissioner raises questions regarding the independence of the position. Waghmare, who was scheduled to retire in June 2025, has opted to resign from his current post to assume the role of SEC for a five-year term. While this move may appear routine from an administrative perspective, it carries potential implications for the impartiality and autonomy of the election commission—especially when viewed through the lens of the Supreme Court’s 2021 ruling in the Fouzia Sheikh case.

Waghmare’s appointment: resignation or conflict of interest?

That Waghmare has had to resign from his position as Principal Secretary of the Medical Education and Drugs Department to accept the SEC role presents a dilemma. However, the question arises: can someone with an extensive background within the government truly maintain the independence required to oversee elections?

The essence of the Court’s ruling was that individuals with governmental ties should not hold such a sensitive position. Waghmare, despite his resignation, remains an active part of the government system until the moment of his transition to the SEC. This brings into question whether his new role will truly be independent or whether his past associations could influence the conduct of elections.

Blurring the lines between government and the Election Commission

The Supreme Court’s ruling was crystal clear in its assertion that the SEC must operate free from any governmental influence. However, Waghmare’s appointment, risks blurring the lines between the government and the election commission. The SEC is meant to be a neutral body overseeing elections at the grassroots level, but if it is headed by someone who has recently held significant positions within the government, how impartial can the election process truly be? Waghmare’s appointment challenges the spirit of the Supreme Court’s decision, which intended to prevent any undue political influence over elections.

Does this appointment affect the integrity of the election process?

The Court’s ruling focused on ensuring that the SEC is perceived as independent, with no ties to the government. By appointing Waghmare, a former government official, the Maharashtra government may be perceived as bypassing the constitutional safeguards put in place to protect the neutrality of the election process. The timing of his appointment, just ahead of crucial local body elections, only amplifies these concerns. The SEC is responsible for ensuring that elections are fair and transparent, but can an individual with recent government affiliations truly be seen as a neutral figure in such a critical role?

Related:

Has the Election Commission chosen to become a willing party to BJP using religion for votes in violation of the MCC and Section 123 of the Representation of the People Act?

Appointment of Election Commissioner under SC scrutiny: The story so far

Gujarat Elections: Farmers of 3 North Gujarat Villages Have Been Boycotting Polls for 3 Years

The post Conflict of interest: M’tra cabinet grants Fadnavis sole authority, serving IAS man appointed as SEC appeared first on SabrangIndia.

The Right to Information (RTI) Act which will soon complete 20 years, has been a very important thread in the democratic fabric of India. The Act empowers citizens to request information from public authorities and promotes transparency and accountability in the functioning of the Government. By enabling informed participation and holding the public officials accountable, the Act aims to strengthen the democratic governance system in our country.

However, over the last few years, questions have been raised about the functioning of the RTI machinery as the number of pending complaints and appeals has increased, various State Information Commissions (SIC) remain defunct, while the Central Information Commission (CIC) is not functioning at its full capacity.

On January 7, 2025, the Supreme Court expressed its concerns over the delay in appointment of the Information Commissioner by Centre and States for protecting the citizens’ right to information, asking what was the use of creating a law protecting the rights of the citizens and creating transparency in the functioning of the government machinery, if there is no one to work for that law.

A defunct RTI machinery

The condition of the functioning of the CIC and the SICs can be better understood by analysing the report published by Satark Nagrik Sangathan (SNS) on the functioning of the 29 commissions across the country with information accessed under the RTI Act through various applications.

Out of the 29 SICs, seven were not functioning at different lengths of time in the year 2024, including Jharkhand, Telangana, Tripura, Goa, Chhattisgarh, Madhya Pradesh and Uttar Pradesh. For a period of four years, the SIC in Jharkhand has not been functional, which is the longest as compared to any other SICs.

Additionally, there were no Chief Information Commissioner in five commissions, along with eight that have been functioning at a reduced capacity with an inadequate number of information commissioners.

As per the Act, each commission shall have 10 commissioners and a chief commissioner, despite that multiple states and even the CIC are functioning at a reduced capacity. The CIC has been working with only three commissioners, including the chief commissioner.

In its recent order, Supreme Court also took cognizance of the situation in Jharkhand, where the commission has been defunct since 2020, and the lack of a leader of opposition (LOP) has resulted in no appointments in the SIC as the Act lays down that the Selection Committee for appointing commissioners must have LOP as a member.

The Court thereafter directed the single largest opposition party in Jharkhand, National Democratic Alliance, to appoint one of its elected representatives for the Selection Committee and complete the appointment process within the next 10 weeks.

As a result of this defunct machinery, the backlog of cases in the 29 commissions has drastically increased, from 2.18 lakh in the year 2019, to 4.05 lakh in the year 2024, which is an increase of around 80 percent, as reported by Newslaundry.

The CIC, which is the final appellate body as per the RTI Act, has more than 23,000 matters pending with 8 vacant posts for commissioners as per the website of the Central Information Commission.

The primary objective of the information commissions is to ensure transparency in the functioning of the government, however with regards to mandatorily making available the annual reports on the websites of respective commissions, it is pertinent to note that 33 percent of the commissions have not made their annual reports available as per an article published in the Business Standard.

The article further analyses the report of SNS as per which nearly 14,000 complaints and appeals were returned while 19,347 were registered by the CIC between July 1, 2023, and June 30, 2024, which comes to 42 percent of the total number of complaints registered.

The article further quotes the report stating “CIC website discloses how many appeals/complaints were re-submitted to the CIC after addressing deficiencies. The data reveals that nearly 96 per cent of the cases which were returned to the appellant/complainant were not re-submitted to the CIC by them”.

Reference can also be made to the 2019 judgement of the Supreme Court in the case of Anjali Bhardwaj vs Union of India, where the apex Court directed the Government to fill up the vacancies in the Information Commission and advised the government to make timely appointments of the Chief Information Commissioner and Information Commissioners 1 to 2 months prior the vacancy is created.

In this judgement, the Court also held that the selection of Information Commissioner must not be merely from Government employees or ex-government employees and highlighted the requirement of appointing people from other streams to increase transparency.

However, the judgement has not made much difference, and the appointment of retired bureaucrats continues.

2019 amendment

The negative attitude of the Government towards the RTI Act has been reflected in the 2019 Amendment to the Act, which has struck a huge blow to the independence and autonomy of the RTI machinery. The scope of the Act has been shrunk and the Government has attempted to defeat the purpose of the legislation. The power given under the RTI Act is now being eroded.

The Right to Information (Amendment) Act, 2019 breaks down the backbone of the law by striking its most important aspect, independence. The Amendment tinkers with status, salary and autonomy of the Information Commissioners at both Central and State levels. The Act which was passed hurriedly without proper consultations gives wide-ranging powers to the Central Government in controlling the one organization that has the power to hold the Government accountable.

To provide autonomy and prevent the information commissions from government interference, the tenure of chief information commissioners and 10 information commissioners was fixed at 5 years, and their salaries were of the rank of the chief election commissioner and election commissioners respectively.

The 2019 Amendment takes away the fixed tenure of the chief information commissioner and the information commissioners and also alters their salaries. As per the amendment, the Central Government has been granted the power to decide the tenure and salary of the chief information commissioner and the information commissioners. This can result in arbitrary removal and curtailment or increment of salary for elections commissioners as per the suitability of the ruling government.

While attempting to explain the objectives and the reasoning behind the amendment to the RTI Act, Bar and Bench in its article reported that, the Minister for PMO, Jitender Singh has argued that

“The functions being carried out by the Election Commission of India and Central and State Information Commissions are totally different. The Election Commission is a constitutional body established by clause (1) of article 324 of the Constitution and is responsible for the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all election to Parliament and to the Legislature of every State and of election to the office of President and Vice President held under the Constitution. On the other hand, the Central Information Commission and State Information Commissions are statutory bodies established under the provision of the Right to Information Act, 2005. Therefore, the mandate of Election Commission of India and Central and State Information Commissions are different. Hence their status and service conditions need to be rationalised accordingly.”

Shri Yashovardhan Azad and Prof. Madabhushanam Sridhar Acharyulu, former Information Commissioners of the CIC argued that the Amendment may kill the RTI Act itself. They argued that the CIC and the SICs are not very different from the Election Commission of India especially with regards to their constitutional duties, and therefore the equivalence between ICs and EC with regards terms and conditions of service and salary were rightly drawn as per an article of the Economic and Political Weekly.

An article of India Today, cites Shashi Tharoor (MP, Indian National Congress) arguing that “It is not an RTI (Amendment) Bill. It is an ‘RTI elimination bill’. This bill is removing the two greatest armours of institutional independence and on top of that, by controlling the State Information Commissioners, by taking over the power to determine their salaries, the Central government is destroying it.”

Backdrop to the 2019 Amendment

Before the introduction of the RTI Amendment Act, 2019, a few orders had been passed by the Information Commission which were considered to cause unease to the Modi Government. Two examples can be referred to here of the row over PM Modi’s degree and the status of non-performing assets in public sector banks.

The Delhi University was directed, in January 2017, to allow the search of records of the students who had cleared the BA Course in the year 1978 which is when PM Modi passed the said exam, by the then Information Commissioner Sridhar Acharyulu.

Based on another complaint filed with the Information Commission during the tenure of the Modi government, the Commission directed the RBI to provide details with regards to the NPA in public sector banks and also the details of primary big loan defaulters. The information was denied by the RBI citing the confidential nature of the said information.

The matter even reached the Supreme Court where the Court directed the RBI in 2015 to make the requested information available and the order was reiterated in 2019 after the Central Bank had previously failed to comply with the order of the apex Court.

A conclusion can be drawn here as to how such complaints that have made the Modi government uncomfortable have resulted in the introduction of the RTI Amendment Act, 2019.

Other Issues with the RTI Machinery –

A pertinent question rises after the Digital Personal Data Protection Act (hereinafter referred as the DPDP Act), 2023 came into force regarding how to balance right to information and right to privacy, both of which are fundamental rights protected under Article 19(1) and Article 21 of the Constitution of India respectively.

Section 44(3) of the DPDP Act amends Section 8(1)(j) of the RTI Act. The previous provision exempted release of “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”, which is now substituted with “information which relates to personal information”.

The revised provision has provided a blanket exemption of any personal information and removed the consideration of larger public interest thereby resulting in huge potential of decrease in transparency and accountability.

The provision provides for protection of privacy of the government, meanwhile to protect the democratic fabric of the country, increased transparency on the end of the government would help in protecting the right of privacy of the citizens. Increased accountability of public officials would promote the objective of the RTI Act, which has been severely diluted by the amendment made by the DPDP Act.

Concerns have been raised as the DPDP Act was passed with great haste and without any consultation. In the documents obtained by an RTI application, it has been found that NITI Aayog which is government’s own think tank had formally written to the Ministry of Electronics and Information Technology (MeitY), urging to not pass the proposed DPDP Bill citing its repercussions and impact on the RTI Act especially, as reported in an article published by ET Government.

A fine will be imposed on the citizens if wrong information is provided to the government even by mistake or if there has been a failure to provide identity proof or address, or even if a complaint has been filed regarding breach of data privacy which is found to be false at a later stage as per an article published by the Deccan Herald. The Government expects the citizens to be perfectly candid and provide with their personal information, meanwhile exempting itself from doing the same and thereby destroying the balance between the governing and the governed.

In 2012, the Report of the Planning Commission headed by Justice AP Shah contended that Section 8 of the RTI Act provides for the exception of privacy to the right to information and when contended, the same can be decided by the Information Commissioners applying the public interest test. Therefore, the Privacy Act should in no way circumscribe the Right to Information Act. (Chapter 4, para 4.2, page 29 of 92)

Further, the Report of Justice Srikrishna Committee in 2018 attempted to balance the right to privacy with the right to information by suggesting amendment to the RTI Act by laying down that information must be exempted “only if such information is likely to cause harm to a data principal and such harm outweighs the aforementioned public interest, can the information be exempted from disclosure.” (Page 110 of 213)

From the above analysis it can be seen how time and again the Centre has attempted to whittle down the power of the RTI Act to protect itself. These acts of the Centre are against the basic fabric of a democratic government, accountability and transparency. Citizens’ right to information has been recognized by the Supreme Court as a fundamental right protected under Article 19(1) of the Constitution of India in a catena of judgments, however, the Centre has left no stone unturned to try and dilute the one law protecting that right.

(The legal research team of CJP consists of lawyers and interns; this primer has been worked on by Yukta Adha)

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The post Vacancies, Backlogs, and increased governmental involvement: How the RTI Act has lost its glory! appeared first on SabrangIndia.

Background of the case

The land in question originally belonged to Chuchrung, who passed it down to his two sons, Mardan and Puni Ram. Both sons inherited the property jointly. Mardan and his wife died in 1951, leaving behind three daughters—Jagmati, Tilobai, and Nanhibai—while Puni Ram passed away in 1960. The plaintiffs, descendants of Puni Ram, claimed exclusive ownership of the property, arguing that since Mardan died in 1951—before the HSA, 1956, came into force—his daughters could not inherit the property under the then-prevailing customary laws or Hindu law. According to their argument, Mardan’s share reverted to his brother Puni Ram. Conversely, the defendants, representing Mardan’s daughters and their descendants, argued that Sawara customs should govern the inheritance and that they had a rightful claim to the property.

The Act, which granted inheritance rights to daughters, came into effect in 1956, years after Mardan’s death. Prior to its enactment, Hindu law and customary practices often excluded women from inheriting property. The trial and appellate courts relied on the argument that the Sawara tribe had adopted Hindu customs and principles, thereby disqualifying Mardan’s daughters from inheriting under the legal framework of that time.

However, the High Court rejected this interpretation, pointing out that Section 2(2) of the HSA, 1956, explicitly excludes Scheduled Tribes unless specifically notified by the government. The High Court emphasised that tribal customs—not Hindu law—should govern the inheritance in this case. However, it allowed the property to the daughters on the basis of justice, equity and good conscience.

Supreme Court’s judgment

The Supreme Court upheld the High Court’s ruling, reaffirming that the HSA, 1956, did not apply to Scheduled Tribes unless expressly notified. However, recognising the principles of justice, equity, and good conscience, the Court allowed Mardan’s daughters and their descendants a share of the property. This balanced approach acknowledged the need to respect tribal customs while addressing the broader issue of gender inequality in inheritance rights.

The judgment underlined that denying Mardan’s daughters any claim to the property solely because of the timing of their father’s death and the non-applicability of statutory law would perpetuate unfairness. By invoking equitable principles, the Court ensured that the daughters were not left entirely dispossessed, setting a precedent for similar disputes involving tribal customs and gender justice.

Evolution of Women’s Property Rights The case reflects India’s broader struggle to establish gender equality in property rights. Historically, women were excluded from inheritance under patriarchal customs and laws.

• Before Independence: Women’s property rights were dictated by customary laws, which heavily favoured male heirs. Women had little to no economic independence.
• Hindu Women’s Right to Property Act, 1937: This marked a step forward by granting limited inheritance rights to Hindu widows, although these rights were often subordinate to those of male relatives.
• Hindu Succession Act, 1956: The Act aimed to eliminate gender-based discrimination, granting women absolute ownership under Section 14. However, loopholes allowed fathers to disinherit daughters by relinquishing their shares.
• Hindu Succession (Amendment) Act, 2005: This amendment ensured equal rights for daughters in ancestral property, placing them on par with sons. The landmark case of Vineeta Sharma vs. Rakesh Sharma (2020) [(2020) 9 SCC 1] further reinforced these rights. In this case, the Court ruled that daughters have equal coparcenary rights in Hindu joint family property by virtue of their birth, irrespective of whether their father was alive when the Hindu Succession (Amendment) Act, 2005, came into effect. This judgment clarified that the 2005 amendment is retroactive, applying to daughters born before or after its enactment, thereby ensuring they possess the same rights and liabilities as sons in ancestral property.

Challenges for tribal (Adivasi) women

Despite advancements in statutory law, tribal women often remain excluded from inheritance due to customary practices. Section 2(2) of the HSA, 1956, preserves tribal autonomy by excluding Scheduled Tribes from its ambit unless specifically notified. While this protects cultural traditions, it often entrenches gender inequality.

Why the case matters

The case of Tirith Kumar vs. Daduram highlights the importance of interpreting laws in context. The timing of Mardan’s death and the inapplicability of the HSA, 1956, raised questions about how inheritance rights should be determined for Scheduled Tribes. By invoking equitable principles, the Supreme Court ensured that the daughters were not left entirely without a claim, setting a significant precedent for future cases involving tribal communities. The court reiterated a suggestion/recommendation made in Kamla Neti v. LAO[(2023) 3 SCC 528] to the Central Government in which it directed to examine the issue of survivorship rights for female tribals and consider amending the Hindu Succession Act to withdraw the exemptions that make it inapplicable to Scheduled Tribes.

While judicial interventions address some inequities, systemic reforms are necessary. Extending the provisions of the HSA, 2005, to Scheduled Tribes could provide a more inclusive framework for property rights. However, such reforms must balance the need for gender equality with the preservation of tribal autonomy and cultural identity.

The judgement of the Supreme Court may be read here

(The author is part of the organisations legal research team)

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The post Supreme Court: Does the Hindu Succession Act, 1956 apply to the Sawara tribe? appeared first on SabrangIndia.

Following Sridhar’s death, his father, Kannaiyan, filed a claim under the Workmen’s Compensation Act, seeking justice and financial relief. However, the case was fraught with procedural hurdles, including repeated dismissals for default due to Kannaiyan’s inability to attend hearings—a situation exacerbated by his impoverished and fragile circumstances. The protracted litigation highlighted the judiciary’s struggle to balance procedural formalities with substantive justice in cases involving vulnerable communities.

After Kannaiyan’s death, his legal representatives persisted with the claim, filing the present writ petition to challenge the rigid application of procedural norms by the Deputy Commissioner of Labour. The case not only called for compensation for Sridhar’s family but also raised critical questions about the role of state authorities and contractors in perpetuating exploitative labour practices. By situating this case within the broader context of labour rights and human dignity, the Court’s timely and decisive intervention acted as a crucial measure to address systemic failings and restore accountability within institutional frameworks.

Issues involved

1. Whether the repeated dismissals for default by the Deputy Commissioner of Labour were justified under labour welfare legislation?
2. Whether the family of the deceased is entitled to compensation despite procedural lapses?

Observations made by the court

1. The Court unequivocally held that the continued practice of manual scavenging violates fundamental human rights and directly contravenes existing statutory provisions, such as the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.

“This case does not need any elaborate reasoning. Suffice it to state that one of our fellow human beings died of manual scavenging. This violates all tenants of human rights. Even at the relevant time, the action of the manual scavenging of the sewer stood prohibited by The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act”

(Paragraph 8 of the judgment)

2. The court observed that the death of Sridhar exemplified systemic neglect by both the state authorities and contractors, who failed to ensure basic safety measures. The Court highlighted the absolute liability of the respondents to compensate the victim’s family without procedural hurdles.

“there can be no doubt whatsoever that the said Sridhar died while he was employed as a manual scavenger when he was sent inside the underground sewer without any protective gear”

(Paragraph 2 of the judgment)

3. The Court criticised the respondents for their lack of proactive measures and emphasized that labour welfare laws demand a liberal interpretation to prevent procedural technicalities from defeating substantive justice.

“Even when a petition is filed at least at that stage, immediately the authorities should have agreed to pay the compensation. The Labour Commissioner before whom the petition was pending ought to be alive to the facts situation. Even if the petitioner does not appear, proactive steps should have been taken to summon the petitioner and compensation ought to have been paid. It was extremely unfair on the part of all the respondents” (Paragraph 9 of the judgment)

4. Citing Safai Karamchari Andolan v. Union of India (2014 11 SCC 224), the Court reiterated that compensation of ₹10,00,000 is mandatory in cases of sewer deaths. It further relied on Dr. Balram Singh v. Union of India (2023 INSC 950) to acknowledge the revised compensation of ₹30,00,000 for incidents occurring post-1993.

“The matter is no longer res integra. The Hon’ble Supreme Court of India in Safai Karamchari Andolon and Others -Vs- Union of India (2014 11 SCC 224)2 has mandated grant of a sum of Rs. 10 Lakhs to the family of the person who dies in sewer cleaning”

(Paragraph 8 of the judgment)

Guidelines issued

1. The impugned order dismissing the condonation of delay application was quashed.
2. Compensation of ₹10,00,000 was awarded as follows:
   • ₹3,30,000 to Jaya.
   • ₹3,40,000 to Venda.
   • ₹3,30,000 to minor dependents Mohan and Vijaykumar, via their guardian Venda.
3. The respondents were directed to disburse the compensation within six weeks and issue an apology letter acknowledging societal failures.
4. The Court observed that negligence by the authorities amounted to a systemic failure to prevent manual scavenging deaths.

Significance of the judgment

This judgment is a critical intervention in the ongoing battle against manual scavenging, a practice deeply entrenched in caste-based discrimination and systemic neglect. As Dr. B.R. Ambedkar poignantly remarked, “In India, a man is not a scavenger because of his work. He is a scavenger because of his birth irrespective of the question whether he does scavenging or not.” The decision of the Court not only addresses the immediate injustice faced by the family of Sridhar but also emphasizes the urgent need to dismantle structural inequalities that perpetuate this practice. The United Nations High Commissioner for Human Rights, Navi Pillay, in her statement on January 31, 2013, recognized manual scavenging as a “self-perpetuating cycle of stigma and untouchability,” calling it a “deeply unhealthy, unsavoury, and undignified job forced upon people because of their caste.” This judgment reinforces that such dehumanizing labour has no place in a modern democracy and highlights the failure to implement existing laws like the Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.

Drawing on the Human Rights Watch report and the UN’s acknowledgment of India’s efforts, the judgment reflects the judiciary’s proactive role in holding state and local authorities accountable. The Court’s mandate for compensation, coupled with an apology, signals a broader responsibility to restore dignity and justice for marginalized communities. By citing landmark cases such as Safai Karamchari Andolan v. Union of India (2014) and Dr. Balram Singh v. Union of India (2023), the judgment aligns itself with the global movement to eradicate manual scavenging and rehabilitate those subjected to it. This judgment stands as a clarion call for society and the state to ensure strict enforcement of laws, provide sustainable alternatives, and break the chains of caste oppression that continue to define and degrade the lives of millions in India.

The Judgment in this case, W.P.No.2339 of 2010, delivered D. Bharatha Chakravarthy J of Madras High Court on December 17, 2024 may be read here

(The legal research team of CJP consists of lawyers and interns; this primer has been worked on by Shailendar Karthikeyan)

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Death down the drain

The post Eradicating Stigma: A Landmark Judgment on Manual Scavenging and Justice for Dalits appeared first on SabrangIndia.

Factual Background

The case arose from an FIR filed against the respondent, following allegations of possessing child pornographic material. The forensic analysis of the respondent’s mobile phone revealed two video files depicting child sexual abuse and over a hundred other pornographic files. These findings led to charges under Section 15(1) of the POCSO Act and Section 67B of the IT Act. However, the High Court of Madras quashed the criminal proceedings, reasoning that the essential elements of the offenses were not met. This prompted an appeal to the Supreme Court by child rights organizations.

Legal issues framed

The Supreme Court examined several critical questions:

1. The scope and interpretation of Section 15 of the POCSO Act, particularly the distinctions between sub-section(s) (1), (2) and (3) respectively of Section 15 of the POCSO?
2. The application of the doctrine of constructive possession and its implications for inchoate offenses.
3. The operation of the statutory presumption of culpable mental state under Section 30 of the POCSO Act.
4. Whether the High Court’s quashing of the chargesheet adhered to legislative intent and judicial principles.

Court’s reasoning

Purposive interpretation: safeguarding legislative intent

The Supreme Court adopted a purposive interpretation to align the statutory provisions with their legislative objectives. Recognizing the inadequacy of a strict textual approach, the Court emphasized the broader aim of protecting children from exploitation. Key observations included:

1. Section 15: Designed to comprehensively address the harm posed by possession, storage, and dissemination of CSEAM. It seeks to criminalize preparatory actions and omissions that contribute to child exploitation. [Paragraph 76]
2. Section 67B: Specifically targets the electronic transmission, creation, and storage of child pornographic material, focusing on acts conducted via digital platforms. [Paragraph 151]

The Court emphasized that purposive interpretation is essential to ensure the evolving challenges posed by technology and digital platforms are addressed effectively. It warned against narrow readings that could undermine legislative intent. [Paragraph 190]

The Court highlighted the complementary roles of Section 67B and Section 15 of the IT Act. Section 67B targets digital actions like creating, transmitting, or storing CSEAM, holding online platforms accountable. In contrast, Section 15 covers broader scenarios, including physical possession, constructive possession, and failure to report such content, whether stored digitally or physically.

Detailed interpretation of Section 15 as per Supreme Court:

1. Independent offenses within Section 15:
   • Section 15(1): Penalizes failure to delete, destroy, or report CSEAM to authorities in order to transmit it. No actual sharing need to occur; intention is sufficient. This provision places a legal obligation on individuals to act responsibly when they come into possession of such material, even inadvertently. The Court clarified that this applies irrespective of whether the individual intends to disseminate the material. [Paragraph 87]
   • Section 15(2): Criminalizes acts of facilitating, transmitting, or disseminating CSEAM for purpose of either transmitting, propagating, displaying or distributing the same in any manner. It highlights culpability in cases where individuals actively enable the spread of such material, including sharing via digital platforms. [Paragraph 88]
   • Section 15(3): Targets possession of CSEAM with intent for commercial exploitation. The heightened culpability under this subsection reflects the gravity of exploiting such material for monetary or other material gains. [Paragraph 79]

The Supreme Court clarified that each subsection addresses specific dimensions of harm, ensuring that both active and passive forms of involvement are penalized.

1. Constructive possession: The Court elaborated that constructive possession includes situations where an individual has control or the ability to control CSEAM without necessarily having physical possession. For instance, accessing and failing to delete such material from an online platform qualifies as constructive possession under Section 15(1). This interpretation ensures accountability in digital contexts. [Paragraph 118]
2. Mens Rea and inchoate offenses: Section 15 criminalizes preparatory acts by focusing on the intention behind possession or storage. This approach aims to deter individuals from actions that could lead to further exploitation, even if the harmful act is incomplete. The Court highlighted that the provision’s preventive framework aligns with the overarching aims of the POCSO Act. [Paragraph 81]

Statutory presumption under Section 30 of the POCSO Act

Mandatory but rebuttable presumption: Section 30 shifts the burden of proof to the accused once foundational facts—such as possession or failure to act—are established. The Court emphasized that this presumption serves as a critical tool to counteract the difficulty of proving intent in cases involving CSEAM. [Paragraph 156]

Errors in the High Court’s reasoning

The Supreme Court identified errors in the High Court’s judgment:

1. The High Court misinterpreted the scope of Section 15, treating it as reliant on actual dissemination.
2. It overlooked the doctrine of constructive possession and the statutory presumption under Section 30.

Observations and recommendations

1. Terminology Reform: The Court recommended replacing “child pornography” with “child sexual exploitation and abuse material” (CSEAM) to reflect the exploitative nature of such offenses accurately. [Paragraph 227]
2. Role of Digital Intermediaries: The Court underscored the obligations of online platforms to promptly report and remove CSEAM, emphasizing strict enforcement under the IT Act and POCSO Rules.  [Paragraph 254]
3. Awareness Initiatives: It called for nationwide campaigns, including sex education and digital literacy programs, to prevent child exploitation and equip individuals to report such offenses. [Paragraph 248]

4. Recommendation to Government

The Supreme Court urged the Union to form an Expert Committee to design programs on health, sex education, and POCSO awareness for children, ensuring robust child protection and education. It also recommended amending Section 15(1) of POCSO to enable public reporting of CSEAM through an online portal. [Paragraph 260]

Broader implications

This judgment reinforces a preventive and deterrent framework for addressing child exploitation. By adopting a purposive interpretation and emphasizing systemic reforms, the Court has paved the way for more effective enforcement of child protection laws.

Its emphasis on intent, accountability, and preventive measures ensures justice in the present case and sets a robust precedent for future interpretations of the POCSO Act and IT Act.

(The author is part of the organisations  legal research team)

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The post Why health and sex education for young is crucial: Supreme Court appeared first on SabrangIndia.

During the hearing, Senior Advocate Huzefa Ahmadi, representing the mosque committee, raised a new issue: a notice issued by the Sambhal Nagar Palika (municipality) regarding a well situated near the mosque. The notice referred to the well as “Hari Mandir” (a term associated with Hindu temples), which Ahmadi argued could potentially lead to its use for religious practices such as prayers or bathing by others. This, according to Ahmadi, would disturb the traditional use of the well by the mosque, which had been a source of water for its purposes for generations. Ahmadi expressed concerns that such a development could cause communal tensions in the area.

The bench, while initially questioning whether allowing others to use the well would cause harm, listened carefully to Ahmadi’s concerns. The Chief Justice asked, “What harm is there in allowing others to use it?” as per LiveLaw. However, Ahmadi clarified that allowing its use for religious practices outside the mosque’s control would lead to significant disruptions and could escalate the situation. The bench, taking into account these arguments, issued an order stating that the notice issued by the Nagar Palika should not be given effect. This effectively blocked the municipality’s attempt to alter the status quo regarding the well for the time being. Additionally, the bench scheduled a hearing for February 21, 2025, and directed the parties to file a status report within two weeks.

Court’s continuous concerns over communal harmony and ongoing legal battles

This legal battle surrounding the Sambhal Jama Masjid is not an isolated case but part of a wider trend of disputes over religious sites across India. On January 10, 2025, while addressing the petition, Chief Justice Khanna expressed concerns about the potential for communal tensions in the region, which had already experienced violence in the past. The Court emphasised that peace and harmony must be maintained, and it stressed that it was “keeping a close watch” to ensure that no actions were taken that could disturb the fragile communal balance in the area.

The Supreme Court’s involvement in the case follows earlier hearings and orders. On November 29, 2024, the Court had directed the Sambhal trial court to refrain from proceeding with the suit filed against the mosque until the petition filed by the mosque committee before the Allahabad High Court had been heard. This was a crucial development in the case, as it halted further legal action in the trial court, including the controversial survey, which had the potential to exacerbate communal tensions.

At the same hearing, the bench also ordered that the report prepared by the Advocate Commissioner, who had conducted a survey of the mosque, be kept in a sealed cover. This order was a precautionary measure to prevent the premature release of the report and to safeguard against its misuse in inflaming the situation. Chief Justice Khanna, along with Justice Kumar, made it clear that their primary concern was to maintain neutrality and ensure that no actions were taken that would escalate tensions in the region. The Court highlighted the need for absolute neutrality in such sensitive matters to ensure that peace was maintained.

The involvement of the Uttar Pradesh government, represented by Senior Advocate Colonel (Retd) R. Balasubramanian, was also notable. Balasubramanian assured the Court that the situation in Sambhal was peaceful and that no further issues had arisen. However, Ahmadi, on behalf of the mosque committee, accused the state government of being biased in handling the matter, which further complicated the situation. The Court, while taking note of these concerns, reiterated that its primary focus was to ensure peace and prevent any further aggravation of the issue.

Broader implications of the case and the Supreme Court’s approach

The petition filed by the mosque committee raised several key legal and procedural concerns. One of the central arguments was that the Places of Worship (Special Provisions) Act, 1991, which prohibits the alteration of the character of religious places, barred the suit and the subsequent survey. The committee argued that the trial court’s ex-parte order for the survey was legally invalid because it had been passed without hearing the mosque’s side, thereby violating procedural fairness. The committee contended that such actions could set a dangerous precedent, especially as similar lawsuits and surveys were being initiated at other religious sites across India.

The committee also raised concerns about the pattern emerging in such cases, where plaintiffs with belated claims were seeking surveys of mosques without providing substantial evidence. This, they argued, could inflame communal passions and create law and order problems, undermining the secular fabric of the country. The mosque committee called for the Court to issue directions to prevent the routine issuance of survey orders without proper hearings, as this would contribute to further communal discord and destabilise the region.

In response to these concerns, the Supreme Court adopted a cautious approach, leaving the Special Leave Petition filed by the mosque committee pending. The bench decided to send the matter to the Allahabad High Court for further proceedings, but it made it clear that the trial court should not take any further steps in the suit until the High Court had examined the petition. This decision underlined the Court’s commitment to maintaining peace and neutrality in such sensitive matters, while also ensuring that the legal process was followed in a fair and just manner.

As part of its broader efforts to address communal tensions in the region, the Supreme Court also suggested the formation of a peace committee under Section 43 of the Mediation Act. This committee would aim to facilitate dialogue and foster communal harmony, helping to mitigate tensions and avoid the escalation of conflicts related to religious sites.

The case of the Sambhal Jama Masjid is just one of many high-profile legal disputes involving religious sites in India. In December 2024, the Supreme Court had issued a broader directive preventing lower courts from passing interim or final orders, including survey orders, in cases related to religious structures like the Gyanvapi mosque, the Mathura Shahi Idgah, and the Sambhal Jama Masjid. This directive was part of the Court’s ongoing efforts to prevent the escalation of communal tensions and ensure that these sensitive issues were dealt with in a manner that preserved peace and harmony. (Details can be read here and here.)

The Supreme Court’s intervention in the Sambhal Jama Masjid case reflects its role in balancing legal principles with the need to maintain social order. The Court’s decisions in this case will likely have far-reaching implications for similar cases across the country, particularly those involving religious structures that are at the heart of communal disputes.

Related:

Jaunpur’s Atala mosque has moved HC against local court order directing filing of suit claiming it was ‘ancient Hindu temple’

Sambhal’s darkest hour: 5 dead, scores injured in Mosque survey violence as UP police face allegations of excessive force

Uttarakhand High Court orders security, condemns hate speech over Uttarkashi Mosque

The post Supreme Court blocks execution of Nagar Palika’s order regarding well near Sambhal Mosque, prioritises peace and harmony appeared first on SabrangIndia.

Relevant provisions

Article 21 of the Indian Constitution: This article guarantees the right to life and personal liberty, and states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Sections 413 and 414 of the Criminal Procedure Code (CrPC) of 1973: These sections outline the procedure for the execution of death sentences.

Section 413 states: “When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.”

Section 414 states: “When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.”

These sections essentially mean that the sessions court should issue a warrant, after it gets a confirmation of a death sentence by the High Court.

Articles 72 and 161 of the Indian Constitution: These articles empower the President of India and the Governors of states, respectively, to grant pardons, reprieves, respites, or remissions of punishment.

The Supreme Court has held in Shatrughan Chauhan vs. Union of India [ 4 (2014) 3 SCC 1] that the exercise of the powers bestowed by Articles 72 and 161 is not a mere prerogative but a constitutional obligation that must be fulfilled with due care and diligence. The key terms associated with these powers are:

1. Pardon: This completely absolves the individual of the offense, removing both the conviction and the sentence, along with any associated disqualifications. The individual is treated as innocent, as if the offense had never been committed.
2. Commutation: This involves substituting a form of punishment with a less severe one. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.
3. Remission: This entails reducing the duration of the sentence without altering its nature. For instance, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year, but the imprisonment remains rigorous.
4. Respite: This refers to awarding a lesser sentence in place of the one originally imposed, due to special circumstances such as the physical disability of the convict or the pregnancy of a woman offender.
5. Reprieve: This implies a temporary suspension of the execution of a sentence, particularly a death sentence, to allow the convict time to seek a pardon or commutation.

It is important to note that the President’s pardoning powers are broader than those of a Governor. The President can grant pardons in cases involving court-martial sentences and can pardon death sentences, whereas a Governor does not have these powers.

These clemency powers serve as a mechanism to correct potential judicial errors, provide relief from unduly harsh sentences, and uphold the principles of justice and mercy within the Indian legal framework.

Facts of the case

The case involved two convicts, Pradeep Yashwant Kokade and Purushottam Dasrath Borate, who were sentenced to death for the rape and murder of a young woman. After the confirmation of their sentences by both the High Court and the Supreme Court, the convicts filed mercy petitions with the Governor of Maharashtra and subsequently with the President of India. While both petitions were ultimately rejected, the process was marred by significant delays.

Further compounding the issue was the inordinate delay by the Sessions Court in issuing the warrants for the execution of the death sentence. This prompted the convicts to challenge the delays, arguing that they amounted to a violation of their fundamental rights under Article 21.

The Supreme Court, while upholding the High Court’s decision to commute the death sentence to a fixed term of 35 years, analysed the various stages of the delay. They found that there were undue and unexplained delays in both the processing of the mercy petitions by the executive authorities and the issuance of the execution warrant by the Sessions Court.

The Court highlighted three distinct phases of delay:

• The period between the filing of the mercy petitions with the Governor of Maharashtra and their subsequent rejection.
• The time taken for the processing and disposal of the mercy petitions filed with the President of India.
• The delay in the issuance of the execution warrant by the Sessions Court after the rejection of the mercy petitions by the President.

In examining each of these phases, the Court remarked that the approach of the executive, and “especially the state government, has been casual and negligent. For instance, the Court pointed out the five-month gap between the confirmation that the convicts had not filed a review petition and the preparation of a note for the Governor’s consideration regarding the mercy petition. The Court noted that this time was spent on unnecessary correspondence between various officials and could have been avoided with more proactive and efficient handling of the matter [Paras 30, 36].

The Supreme Court, in its judgment, underscored the importance of a timely and efficient legal process, especially in cases involving the death penalty.

The Court held that inordinate delays in carrying out a death sentence cause mental agony and psychological distress to the convict [Para 42]. This, the Court concluded, is antithetical to the principles enshrined in Article 21 and constitutes a violation of the convict’s fundamental rights.

The judgment, therefore, draws heavily on the principles established in previous cases like Shatrughan Chauhan & Anr. v. Union of India & Ors. and Triveniben v. State of Gujarat [(1989) 1 SCC 678] to emphasize that while the death penalty itself may be constitutional in certain “rarest of rare” cases, the process leading to its execution must adhere to the principles of fairness, justice, and due process [Para 20]

To address the systemic issues leading to these delays, the Supreme Court issued a comprehensive set of guidelines aimed at streamlining the process of handling mercy petitions and issuing execution warrants [Para 43]. These guidelines included:

• Establishing Dedicated Cells: The Court directed all State Governments and Union Territories to establish dedicated cells within their Home or Prison Departments specifically to handle mercy petitions. These cells, staffed by designated officers, are tasked with ensuring the prompt and efficient processing of mercy petitions within stipulated timeframes.
• Improving Coordination and Communication: The Court emphasized the need for better coordination and communication between the various stakeholders involved in the process, including the prison authorities, the police, the State Government, and the Sessions Court. They encouraged the use of email for correspondence to expedite communication, except in cases involving confidential information.
• Proactive Role of the Sessions Court: The Court directed the Sessions Courts to take a more proactive role in overseeing the process. They instructed the Sessions Court to periodically review the status of the cases where death sentences have been awarded and to issue notices to the State authorities to ensure that they are kept abreast of the progress of appeals, review petitions, and mercy petitions.
• Timely Issuance of Execution Warrants: The Court also outlined a detailed procedure for the Sessions Court to follow in issuing execution warrants. This includes:

• The mandatory issuance of notice to the convict informing them of the intent to issue a warrant.
• The provision of legal aid to the convict to challenge the warrant if they so desire.
• The specification of a precise date and time for the execution in the warrant, as opposed to a range of dates, to eliminate uncertainty for the convict.
• A mandatory gap of at least 15 days between the date the convict receives the warrant and the scheduled execution date, allowing them sufficient time to pursue legal remedies or meet their families.

The Court’s emphasis on ensuring that convicts receive proper notice, access to legal aid, and a reasonable time frame to prepare for the execution is crucial in upholding their fundamental rights. The judgment also stresses the importance of providing convicts with a clear and definitive execution date to minimize the psychological distress caused by prolonged uncertainty.

In addition to these structural changes, the Court directed all State Governments to issue formal office orders or executive orders incorporating the guidelines outlined in the judgment, ensuring that these directives are implemented effectively.

The detailed guidelines and directions issued by the Court aim to address the systemic delays that have plagued the execution process, ensuring that it adheres to the principles of fairness, justice, and human dignity enshrined in the Indian Constitution. This judgment is likely to have a lasting impact on the administration of capital punishment in India, setting a precedent for greater accountability, transparency, and efficiency in the legal process.

(The author is part of the organisations legal research team)

Related:

Death Penalty MUST be Abolished!

Is death penalty a deterrent against sexual crimes against women?

Death Penalty In POCSO Act Imperils Child Victims Of Sexual Offences

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