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Foreign Court’s Sentence On Deported Indian Convict Not To Be Reduced Because It Is Higher Than Similar Sentence In India: SC

  • The Hon’ble SC has given a notable judgement in which it has delved into the principles to be followed for the deportation/repatriation of prisoners under the Repatriation of Prisoners Act, 2003.
  • In the instant case titled Union of India and anr. vs. Shaikh Istiyaq Ahmed and ors. the Supreme Court of Mauritius had convicted the respondent under the provisions of the Dangerous Drugs Act for the possession of 152.8 grams of heroin and sentenced him to imprisonment for 26 years. He was transferred to India in March, 2016 under the provisions of the Repatriation of Prisoners Act.
  • The respondent appealed to the Central Government to reduce the sentence to 10 years to bring it in consonance with the Narcotic Drugs and Psychotropic Substances Act and also reg=quested to take into account the term of imprisonment already undergone by him in Mauritius.
  • The Government agreed to deduct the period spent by him in remand but rejected the plea to reduce the sentence to 10 years. This order of rejection was challenged before the Bombay HC, and it was allowed in May, 2019.
  • A document titled “Commonwealth Human rights Initiative”: Bringing them Home- Repatriation of Prisoners Act, 2003 which was issued by the Ministry of Home Affairs on 10 August, 2015, contained ‘Guidelines for the Transfer of Sentenced Persons under the Repatriation of Prisoners Act’ was presented before the SC. According to these guidelines, in the case of adaptation of sentences of prisoners involved in drug trafficking, reference has to be made to the provisions of the NDPS Act. Also, before deportation, the prisoner has to be informed of the quantum of sentence that he will have to undergo in India, and no deportation will be done unless the prisoner gives his consent to the quantum of punishment. It was observed by the Court that the prisoner had, indeed, submitted an undertaking regarding the same.
  • The Court also held that the duration of the sentence will be governed by the Agreement of Transfer between the Foreign State and India. Agreeing with the fact that the Indian government can modify the sentence of the foreign court only if it is incompatible with Indian laws, the Court held that merely because the foreign court’s sentence is higher than that of Indian law does not become ‘incompatible with Indian Law’. In order for it to be incompatible, it has to be violative of the fundamental laws of India (section 13(6) of the Repatriation of Prisoners Act).
  • After a combined reading of section 12 and 13 of the aforementioned Act, the Supreme Court carved out the following principles-
  1. A request for the transfer of a prisoner from a contracting state to India would be subject to the terms and conditions of the agreement between the two contracting States.
  2. The sentence of imprisonment imposed by the contracting State shall be binding on India (section 12(1) of the Repatriation Act).
  3. On the acceptance of the request of transfer, a warrant shall be drawn up for the detention of the prisoner in accordance with section 12(1) of the Act.
  4. The warrant will have to provide for the nature and duration of the imprisonment of the convict in accordance with the terms and conditions mentioned in section 12(1) of the Act (as agreed between the two States).
  5. The imprisonment will be in accordance with the warrant.
  6. The Government is empowered to adapt the sentence if it is incompatible with the laws of India as to its nature or quantum or both.
  7. If the Government is considering the request for adaptation, it has to make sure that the adapted sentence is in conformity with the sentence imposed by the contracting state.
  • Thus, the Court, upholding the order of the Central government, held that the sentence passed by the Supreme Court of Mauritius was binding on India.

Amendment Taking Away Vested Rights Of The Employees Violative Of Articles 14 And 21:SC

  • In a case titled The Punjab State Cooperative Agricultural Development Bank Ltd. vs. The Registrar, Cooperative Societies and Ors. the Hon’ble SC has held that an amendment with retrospective effect cannot take away any right which has already vested in the employee as it would violate Articles 14 and 21 of the Constitution.
  • In the instant case, the appellant bank, on the recommendation of the Punjab Pay Commission, introduced a pension scheme for employees and officers in 1989. Rule 15(ii) was added to the Punjab State Cooperative Agricultural Mortgage Bank Service (Common Cadre) Rules, 1978 which authorised the Board of Directors to formulate the pension scheme.
  • All the employees were given an option to be covered in this scheme. They derived benefits under this scheme till 2010. In May of 2010, the Bank found the scheme unviable due to lack of resources.
  • The Board of Directors passed a resolution to discontinue the scheme and by the power vested in them by section 84A(2) of the Punjab Cooperative Societies Act, they deleted rule 15(ii).
  • The main question for consideration before the Apex Court was regarding the vested rights of the employee and could these vested rights be divested by an amendment by giving it a retrospective effect.
  • The Bench observed that when the appellant Bank withdrew the pension scheme by deleting rule 15(ii), it sought to take away the rights already vested in the employees. Any amendment taking away those vested rights would be violative not just of Article 14 but also article 21 of the Constitution.
  • The Court also held that an employee who had already been promoted or fixed on a particular pay scale, that being taken away by the impugned scheme of rules, would take away the vested rights of the incumbent employee which is not permissible and is violative of Articles 14 and 21 of the Constitution.

Police Protection Cannot Be Claimed As A Matter Of Right, Couples Should Have The Courage To Persuade Their Families: Rajasthan HC

  • The Hon’ble HC of Rajasthan has, in the case titled Shobha and anr. vs. State of Rajasthan and ors., has denied police protection to the runaway couple, stating that there is no evidence on record to suggest that they were under threat from their families.
  • Justice Dinesh Mehta has stated that if the petitioners have decided to marry, then they must muster the courage to tell their families about it and to persuade them and the society to accept the steps they have taken.
  • The Court further observed that in a deserving case, the Court can provide security to the couple, but the Court cannot lend them the support that they have sought. The couple must learn to support each other and face society.
  • In the instant case, the petitioners: a 21 year old boy and an 18 year old girl had approached the Court by way of a writ petition seeking police protection.
  • While denying them relief, the Court relied upon the judgement of the Apex Court in the case of Lata Singh vs. State of UP and Anr. (AIR 2006)SC in which it was held that the Courts are not meant to provide protection to such couples who have simply run away from their home in order to get married according to their own wishes.
  • The Court observed that there was no evidence of serious threat to the life and liberty of the petitioners. Therefore there was no requirement of granting them police protection. The Court further said that if any person misbehaves or threatens them, then the Courts and the police are there to come to their rescue however the couple cannot claim security as a matter of right.
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