Director Dr. Sarfaraz Ahmed Khan during valedictory function | SLS-H Ind...

Welcome address during Valedictory Session by Prof. (Dr.) Sarfaraz Ahmed Khan, Director SLSH, on 6th July, 2019.

Welcome Address by Prof. (Dr.) Sarfaraz Ahmed Khan

A very warm good morning to everyone! We are honoured to have eminent personalities on the dice today with us. We welcome our Chief Guest, Hon'ble Justice G. R. Swaminathan, Judge, Madurai Bench of Madras High Court. We are grateful to you sir for accepting our invitation and decided to devote your time for giving your valuable advice to  our new students. We welcome you, at SLSH.

We welcome our Guest of Honour, Mr. Abhishek Tripathy, IRS, Government of India! We are privileged to not only having him here but also for a workshop for our students post lunch. We extend our warn welcome to you, at SLSH.

We have our Special Guest Ms. Debolina Saha, Senior Associate  Key member of Doresey and Whitney’s, Hong Kong. It is our immense pleasure to have your presence, amongst us today! We welcome you, at SLSH.

We have  Prof.(Dr) Vijender Kumar, VC-NLU, Nagpur, who took time from his busy schedule to grace this function. We are grateful to you sir for agreeing to come here and advise our students for their new journey. We welcome you, to SLSH.

I also welcome our Deputy Director Dr. Anuratha Binnuri, students, teaching and non-teaching faculty members, for the Valedictory function of the 2019-Induction program. 

The 5-day induction program for the batch of 2019-24 began as a huge number of parents, teaching and non-teaching staff gathered here on Monday. A short film on the idea of Symbiosis was screened. The film highlighted how

Prof. Dr. S.B. Mujumdar conceived the idea of establishing an international university after seeing the plight of international students in India. 

In the inauguration session, the students had the opportunity to hear from three eminent stalwarts Hon'ble  Justice B Sudarshan Reddy, Former Judge, Supreme Court of India, Vice Chancellor of National Law School of India University, Bangalore, Prof. Dr. R. Venkata Rao, and Retd. IPS officer, Dr. P.M. Nair. They congratulated students, shared their inspiring life stories and advised for their future pursuit. Their experiences and insights from their works have enlightened all of us with the importance of legal education and learning values in order to attain social justice.

Post lunch, while the students took part in the ice-breaking session, the parents attended a workshop in the convention hall. The new batch mingled with each other during the ice-breaking session and got to know their classmates. Symbiosis Centre for Emotional Wellbeing (SCEW) provided the workshop for the parents on "Raising Respectful, Responsible, and Resilient Children in Today's World". This is an initiative of Symbiosis International University that caters to the emotional well-being of students and staff. A team of qualified and experienced psychologists interacted with the parents on how they can play a very supportive role in developing the emotional resilience of their children. 

In the evening, the mentor-mentee program was conducted. All the teachers have to be available to their students to sort out any problems, be it academic or otherwise. The purpose of this program is to make the students understand that our faculty members are approachable and helpful for them. Each faculty members became mentors for 18 students. Similarly, we also assigned one senior batch students among the toppers as a mentor for every six freshers. The program was a grand success with each faculty members interacting with a group of their mentees in a very amicable way. We want to assure that the new students feel welcomed and knew whom to go to if they have any problems on the campus.

In the next couple of days, presentations on various cells and centers' activities were given. We had a total of 31 presentations from all centers such as Moot Court Association, Training and Placement Cell, International Cell, Center for Legal Aid, and so on. Students and their faculty in-charge briefed the freshers on their aim, objectives, activities, and their forthcoming programs. This session let the students understand the diversity of academic activities carried out on the campus. Now, it is their time to decide which center they want to get associated with.

 We also had a session on Symbicare focussing on health, sports activities, and general well-being of the students in the residential campus. A detailed session on examination rules and academic progression were conducted by Dr. Srinivas Bandameedi. We had members from the IT and Library department demonstrating students on how to use Internet facilities and access online resources.

We were delighted to have our student alumni, Namrata Chakraborthy and Nalamalpu Pavan Krishna Reddy, sharing their experience studying at Symbiosis Law School, Hyderabad, for five years and getting placed in their current organizations.

Stepping into the important phase of their lives, students need to understand the gender differences and that SLS-H places great importance on its zero-tolerance policy about sexual harassment. Therefore, we organized 'Gender Sensitization Program' with the best available resource persons, Prof. (Dr).Rekha Pande, Director, Centre for Women Studies, University of Hyderabad and Dr. Swetha Luthra, Legal Consultant at Support Against Sexual Harassment (SASHA), a well known NGO working on the issues relating to sexual harassment at workplace. It was a very lively and interactive session. 

We made sure that every day of the first four days ended with sports and cultural events where students can get to know each other of their talents. The fifth day was full of fun as all students with faculty members went for an outing in an amusement park (Wonderla).

We tried to ensure that the week-long induction program for the batch of 2019-24 had a mixture of serious academic activities to most jovial cultural programs. We hope these days were very informational, eventful and unforgettable.  

Dear students, the next five years requires your focus on balancing studies and healthy life. From Monday next week, all your classes will begin and it would be the time to get serious, work hard, and excel in your academics while maintaining discipline throughout. If you can achieve this, believe me, many of you can, rather shall, become Judges, solicitor general, advocate general, renowned lawyers, erudite academicians, entrepreneur, or excel at any career of your choice. With a note of caution, if you do not do this, success will remain a distant dream.

Dear students, the only ‘mantra’ that can lead you to your goal is your tenacity to do the ‘hard work’. So, work hard, work hard and work hard!

Thank you! All the Best!

Induction Program - Welcome Speech by Director

Induction Program - Welcome Speech by Director

Hon'ble Mr. Justice B. Sudershan Reddy Sir, respected Shri Prof. (Dr.) R. Venkata Rao Sir, respected Shri Prof. (Dr.) P.M. Nair Sir, my colleague at SIBM Prof. (Dr.) Ravi Kr. Jain Sb, respected Col. B S Bali (Retd) Sb, my colleague Dr. Anuradha Binnuri and Dr. Srinivas Bandimeedi, faculty members, guardians and dear students; What a lovely morning we have to begin the induction program for new students!

I am honored to welcome the chief guest Hon'ble Mr. Justice B. Sudershan Reddy, Former Judge Supreme Court of India. We are grateful to you sir, for accepting our invitation and devoting your valuable time from hectic schedule for the students. Your kind words to our students will go a long way in pursuit of their legal studies.

To grace this occasion, who will be better than Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, National Law School of India University, my teacher and Guru, to give advice to my students on the very first day of their new journey. We welcome you, Sir!

We are also privileged to have amongst us, Prof. (Dr.) P. M. Nair, I.P.S., a well-known crusader having mission to end modern-day slavery. Sir, I am personally grateful for your inspiration and support during my research work on the issue relating to human trafficking. Your words of wisdom and courage will encourage our students to work for social justice and help in the attainment of the goal of ‘justice education’. We welcome you, Sir!

I welcome all the parents who have chosen Symbiosis Law School, Hyderabad, amongst many law schools in the country. Believe me; you have made the right decision for your children’s bright future. We welcome you all.  I also welcome the faculty members, administrative staff, and all students.

Dear students of batch 2019-24, it is my immense pleasure to welcome you all to the Symbiosis Law School, Hyderabad. I congratulate each and every one of you for having secured a place at this university on merit basis and become part of the Symbiosis family.

Today, being here means that you have opened up a new chapter in your life. Today, being here means you are brave to take up challenges. Today, being here means you are ready to stand up not only for yourself but for others.

Today, my dear students, you have the autonomy to write your own story starting from here. But, how will you do that? This is where Symbiosis Law School, Hyderabad is here to help you.

A person learns from the teacher, his/her intelligence, classmates, surroundings, and experience. We at Symbiosis Law School, Hyderabad dedicate to provide you such a learning environment where you learn and grow as a person in all possible ways.

Symbiosis Law School, Hyderabad has excellent faculty team with diverse expertise. You have the opportunity to interact with and learn from best legal minds, law teachers, judges, and legal practitioners. We are with you as you would like to become lawyer, or academician, or entrepreneur or any other career you choose for yourself.

Symbiosis Law School is rich in diversity, even more diverse than most of other, top law schools in the country including the NLUs. You now belong to a big group of the student body who are coming from as many as 28 states in the country. In fact, a mini India is what you will be experiencing in this residential school. All the students will get to interact with each other whether it is for the studies, extra-curricular activities or leisure activities. You will also find new friends most of whom would become your friends for the rest of your life. They would be the people with whom you share the memories of your next five years. You have a vast campus with all facilities for a comfortable living and studying environment. We hope that you will have a 'home away from home' experience as the campus has been planned.

The resources provided by the library are huge. Our faculty members and non-teaching staff members work hard with dedication to bring all the best of opportunities in front of you.  Remember, everyone here is chosen. It is your intelligence, talent, your audacity that has brought you here. We value each and every student for who they are and who they are becoming.

Despite the excellent teaching faculty members, administrative staff members, friendly campus environment, it is you, who can help your own learning by making use of this opportunity. And, dear students, that is why I would like to give you some valuable piece of advice before you start this amazing journey.

1. Take responsibility for your learning: As you will experience greater freedom from this point of your life, you should always remember that more responsibilities also come along with it. At Symbiosis Law School, Hyderabad, we expect you to be self-reliant. This means, you are responsible for what you do. You should ensure that you do what is required of you. Just to name some of your responsibilities - make sure you attend your lectures on time, pay attention in class, maintain discipline, work on your assignments, and so on.

2. Make use of the resources: Be it your teachers, books at the library, or online platforms, make sure you make the most out of your time here. There will be a number of opportunities available for you throughout these 5 years. You must grab them all, give your best and learn from it. Use the resources wisely and responsibly.

3. Embrace the difference: Each one of you is unique. You are different from each other because you came with a different background. In a big institution like this, it is easy for you to stick with what is familiar. But, you will lose the opportunity to know a different person, a different perspective, different ideas, or different interest if you do so. Therefore, I advise you all to mingle with everyone and embrace the differences between you all.

4. Difficulties are good so, face it with a smile: Let me give you an example. When we ride a bi-cycle upward on a slope, it is always difficult. We get tired. We sweat. Our legs hurt. But, imagine riding a bi-cycle down the slope. It is very easy. We move faster. We do not need to put any effort.

When you find it hard to work on that particular assignment, when you find it hard to get that marks you targetted, you must always remember that you are cycling upward. When you face your challenge and continue to work on it without giving up, you are moving forward in your studies. That is the only way you can reach heights. If you feel relaxed, if you are not putting any efforts, it means you are going down and down the slope. So, difficulties are good for you. Face them with a smile.  

Students, the new page in your chapter is blank. I hope you take this advice to your heart and write your own stories by making use of the wonderful opportunity to learn new things, acquire new knowledge, develop new skills, and enhance your personal attributes in a profound way at Symbiosis Law School, Hyderabad.

Again, I welcome you all to be part of the Symbiosis family.

Thank you one and all for your presence here today. Thank You.

Welcome address delivered by Prof. (Dr.) Sarfaraz Ahmed Khan, Director, SLSH

Welcome address delivered by Prof. (Dr.) Sarfaraz Ahmed Khan, Director, Symbiosis Law School Hyderabad during the inaugural session of weeklong induction programme on 1st July 2019.

https://youtu.be/X7ct4wCmhk0

Death to Yakub Memon: Should extraordinary rendition be a mitigating factor?

Sarfaraz Ahmed Khan, Research Scholar, City University of Hong Kong

The article of Mr B. Raman, the head of the Pakistan Desk at the Research and Analysis Wing (RAW), published on rediff.com adds new dimensions to the Yakub Memon case. It has raised questions about adherence to the principle of fair trial and the rule of law by Indian investigating and prosecuting agency. If Mr. Raman’s statements are true, Memon was informally apprehended in Kathmandu with the help of the Nepal police, brought to India by road and thereafter flown to Delhi by a special aircraft and formally arrested in old Delhi. Mr. Raman, who was coordinating the entire operation, has been extremely courageous to put in writing the details of the operation which exposes the illegality committed by the state agency with far reaching consequences on the human rights of the accused and the international human rights obligation of Nepal. The term ‘extraordinary rendition’ refers to various irregular methods employed by a state to bring individuals from another state disregarding the formal legal process of extradition.  

Nepal has abolished death penalty and for it to send someone to another country without ensuring that death penalty will not be executed amounts to violation of human rights of the accused. It seems that the Indian investigating agency has indulged in extraordinary rendition to do away with the requirement of providing assurance as was given in Abu Salem’s case to Portugal. Indisputably, India can impose death penalty but the accused was brought from a country which has abolished death penalty. Had the due legal process been adhered to, death penalty would not have been awarded. Should the state be disallowed to take advantage of deliberate illegality? Does such illegality constitute a mitigating factor to determine the quantum of punishment? The answer may be ‘yes’ in all probabilities. In Memon’s case the court was kept in the dark about the illegality of the rendition process and this can tantamount to the violation of the principles of fair trial.           

Extraordinary Rendition, a violation of human rights of the accused

An extradition treaty between India and Nepal was signed on 2 October 1953 that obliges the two countries to extradite accused persons found within their territory by following legal procedures. Countries having extradition treaties are bound to extradite accused persons in adherence to the due process of law. Since Nepal has abolished the death penalty, it is undoubtedly obligated not to extradite anyone without ensuring protection to the right to life of such person. There are a few cases of other jurisdictions which explain this obligation. The Judge De Mayer of European Court of Human rights (ECtHR) in Soaring v. United Kingdom (1989) observed that death penalty itself constitutes a bar to extradition unless the requesting state provides satisfactory assurances that the death penalty shall not be imposed or if imposed shall not be carried out.

India is not the only country that brings accused from other countries by the process of extraordinary rendition. In South Africa, once an alleged terrorist of Al-Qaida, Mohamed, was taken away by the US Federal Bureau of Investigation (FBI) from Cape Town with the help of state authorities. The South African Constitutional Court in K. K. Mohamed v. Republic of South Africa (2001) had found such rendition to be violative of the constitutional rights of ‘human dignity, to life and of not to be treated or punished in a cruel, inhuman or degrading way.’ In El-Masri v. Macedonia (2012) ECtHR found the act of handing over the alleged accused to CIA agents by the Macedonian authorities inconsistent with his human rights protection. In another case, officers of the Italian military security services (SISMI) and CIA agents were convicted in Italy on the charge of kidnapping an accused whose rendition was carried out from Milan to Egypt in February 2003 (Tribunale Ordinario di Milano -Sez IV Penale-, Sentenza No 12428/09, 4 November 2009). Subsequently the conviction was set-aside on the ground of state immunity. It is important to understand that rendition may amount to abduction if done without following the due process of law.

Power of Arrest under Indian law

Section 48 of the Code of Criminal Procedure 1973 (CrPC) allows the investigating agency to pursue and arrest any accused only within the territory of India. To bring an offender from another country, orders have to be issued by judicial authority as per Section 105B of the CrPC. Impliedly, the Indian investigating agency has not followed the process prescribed under Section 105B of the CrPC. In such circumstances, Yakub Memon’s lawyer might argue that he was kidnapped from Nepal and kept in illegal confinement till the time he was shown to be arrested. In fact, from the point of time he was under custody till the time he had not been shown to be arrested, he was definitely under wrongful restraint and wrongful confinement, both punishable under the Indian Penal Code 1860. His illegal detention also violated his rights guaranteed under Article 21 of the Indian Constitution. Although the validity of trial and conviction is not affected by irregularity in arrest, it is a mitigating factor that should be placed before the court.

Consideration for awarding capital punishment

In Bachan Singh v. State of Punjab (1980) the Supreme Court held that death penalty can only be awarded ‘in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ In this case the Court further imposed an obligation on the courts to draw up ‘a balance sheet of aggravating and mitigating circumstances’ and ‘in doing so the mitigating circumstances have to be accorded full weightage.’ In Machhi Singh v. State of Punjab (1983) the Supreme Court laid down that court can award death sentence only after ‘according maximum weightage to the mitigating circumstances which speak in favour of the offender.’ The illegal arrest and detention of the accused is one of the mitigating factors which should have been placed before the court but the prosecuting agency with the aim of securing death penalty not only failed to enlighten the court on this point but also made false statements about arrest and custody.

Were all mitigating factors before the court?

Did the court really take into account all mitigating factors before awarding capital punishment? Mr. Raman’s article also informs us that Memon had extended his support during investigation in bringing the other accused to India to face trial, and most importantly helped India to establish before the world community the role played by Pakistan’s intelligence agency, ISI, in harbouring terrorism. Mr. Raman argued that the cooperation extended by Yakub Memon is ‘a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.’

            The following mitigating factors were, probably, not known to the trial court while awarding capital punishment: (a) Memon was illegally detained in Nepal and brought to India; (b) the investigating agency had kept him under wrongful restraint and wrongful confinement till the time he was shown to be arrested; (c) the action of both India and Nepal resulted in violation of constitutional rights of accused; (d) the state of Nepal failed in fulfilling its legal obligation under international human rights law; (e) the state machinery in the zeal of securing capital punishment violated the international norms by not adhering to the process of extradition; (f) the Indian state machinery did not present the demeanour of the accused and the support extended by him during investigation; (g) the Indian state machinery made false statements about his arrest and detention.       

Moreover, Prof. Surya Deva of City University of Hong Kong has found after analysing 86 cases decided by the Indian Supreme court between January 2000 and October 2011 that the judiciary has applied the principle of ‘rarest of rare’ in ‘quite an inconsistent and arbitrary manner’ and the principle has outlived its utility. In fact, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) the Supreme Court itself observed that ‘it can be safely said that the Bachan Singh threshold of rarest of rare cases has been variedly and inconsistently applied by the various High Courts’ as well as Supreme Court’. In this backdrop when the absence of minor mitigating factors can change life into death, such nondisclosure on the part of the state before the trial court, in my view, is a serious omission of the investigating and prosecuting agency which not only deprived the accused of fair trail but also prevented the judges from balancing the aggravating and mitigating circumstances to determine the appropriate quantum of punishment. Such omission can only be rectified if the Supreme Court either remits the case to the trial judge to re-determine the quantum of punishment in light of the facts newly revealed or if it exercises its power under Article 142 of the Constitution to commute death sentence to life imprisonment.

 https://www.linkedin.com/pulse/death-yakub-memon-should-rendition-mitigating-factor-sarfaraz-khan?trk=prof-post

Death to Yakub Memon: Should extraordinary rendition be a mitigating factor?

http://www.legallyindia.com/Blogs/death-to-yakub-memon-should-extraordinary-rendition-be-a-mitigating-factor

Death to Yakub Memon: Should extraordinary rendition be a mitigating factor?

Sarfaraz Ahmed Khan, Research Scholar, City University of Hong Kong

The article of Mr B. Raman, the head of the Pakistan Desk at the Research and Analysis Wing (RAW), published on rediff.com adds new dimensions to the Yakub Memon case. It has raised questions about adherence to the principle of fair trial and the rule of law by Indian investigating and prosecuting agency. If Mr. Raman’s statements are true, Memon was informally apprehended in Kathmandu with the help of the Nepal police, brought to India by road and thereafter flown to Delhi by a special aircraft and formally arrested in old Delhi. Mr. Raman, who was coordinating the entire operation, has been extremely courageous to put in writing the details of the operation which exposes the illegality committed by the state agency with far reaching consequences on the human rights of the accused and the international human rights obligation of Nepal. The term ‘extraordinary rendition’ refers to various irregular methods employed by a state to bring individuals from another state disregarding the formal legal process of extradition.  

Nepal has abolished death penalty and for it to send someone to another country without ensuring that death penalty will not be executed amounts to violation of human rights of the accused. It seems that the Indian investigating agency has indulged in extraordinary rendition to do away with the requirement of providing assurance as was given in Abu Salem’s case to Portugal. Indisputably, India can impose death penalty but the accused was brought from a country which has abolished death penalty. Had the due legal process been adhered to, death penalty would not have been awarded. Should the state be disallowed to take advantage of deliberate illegality? Does such illegality constitute a mitigating factor to determine the quantum of punishment? The answer may be ‘yes’ in all probabilities. In Memon’s case the court was kept in the dark about the illegality of the rendition process and this can tantamount to the violation of the principles of fair trial.           

Extraordinary Rendition, a violation of human rights of the accused

An extradition treaty between India and Nepal was signed on 2 October 1953 that obliges the two countries to extradite accused persons found within their territory by following legal procedures. Countries having extradition treaties are bound to extradite accused persons in adherence to the due process of law. Since Nepal has abolished the death penalty, it is undoubtedly obligated not to extradite anyone without ensuring protection to the right to life of such person. There are a few cases of other jurisdictions which explain this obligation. The Judge De Mayer of European Court of Human rights (ECtHR) in Soaring v. United Kingdom (1989) observed that death penalty itself constitutes a bar to extradition unless the requesting state provides satisfactory assurances that the death penalty shall not be imposed or if imposed shall not be carried out.

India is not the only country that brings accused from other countries by the process of extraordinary rendition. In South Africa, once an alleged terrorist of Al-Qaida, Mohamed, was taken away by the US Federal Bureau of Investigation (FBI) from Cape Town with the help of state authorities. The South African Constitutional Court in K. K. Mohamed v. Republic of South Africa (2001) had found such rendition to be violative of the constitutional rights of ‘human dignity, to life and of not to be treated or punished in a cruel, inhuman or degrading way.’ In El-Masri v. Macedonia (2012) ECtHR found the act of handing over the alleged accused to CIA agents by the Macedonian authorities inconsistent with his human rights protection. In another case, officers of the Italian military security services (SISMI) and CIA agents were convicted in Italy on the charge of kidnapping an accused whose rendition was carried out from Milan to Egypt in February 2003 (Tribunale Ordinario di Milano -Sez IV Penale-, Sentenza No 12428/09, 4 November 2009). Subsequently the conviction was set-aside on the ground of state immunity. It is important to understand that rendition may amount to abduction if done without following the due process of law.

Power of Arrest under Indian law

Section 48 of the Code of Criminal Procedure 1973 (CrPC) allows the investigating agency to pursue and arrest any accused only within the territory of India. To bring an offender from another country, orders have to be issued by judicial authority as per Section 105B of the CrPC. Impliedly, the Indian investigating agency has not followed the process prescribed under Section 105B of the CrPC. In such circumstances, Yakub Memon’s lawyer might argue that he was kidnapped from Nepal and kept in illegal confinement till the time he was shown to be arrested. In fact, from the point of time he was under custody till the time he had not been shown to be arrested, he was definitely under wrongful restraint and wrongful confinement, both punishable under the Indian Penal Code 1860. His illegal detention also violated his rights guaranteed under Article 21 of the Indian Constitution. Although the validity of trial and conviction is not affected by irregularity in arrest, it is a mitigating factor that should be placed before the court.

Consideration for awarding capital punishment

In Bachan Singh v. State of Punjab (1980) the Supreme Court held that death penalty can only be awarded ‘in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ In this case the Court further imposed an obligation on the courts to draw up ‘a balance sheet of aggravating and mitigating circumstances’ and ‘in doing so the mitigating circumstances have to be accorded full weightage.’ In Machhi Singh v. State of Punjab (1983) the Supreme Court laid down that court can award death sentence only after ‘according maximum weightage to the mitigating circumstances which speak in favour of the offender.’ The illegal arrest and detention of the accused is one of the mitigating factors which should have been placed before the court but the prosecuting agency with the aim of securing death penalty not only failed to enlighten the court on this point but also made false statements about arrest and custody.

Were all mitigating factors before the court?

Did the court really take into account all mitigating factors before awarding capital punishment? Mr. Raman’s article also informs us that Memon had extended his support during investigation in bringing the other accused to India to face trial, and most importantly helped India to establish before the world community the role played by Pakistan’s intelligence agency, ISI, in harbouring terrorism. Mr. Raman argued that the cooperation extended by Yakub Memon is ‘a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.’

            The following mitigating factors were, probably, not known to the trial court while awarding capital punishment: (a) Memon was illegally detained in Nepal and brought to India; (b) the investigating agency had kept him under wrongful restraint and wrongful confinement till the time he was shown to be arrested; (c) the action of both India and Nepal resulted in violation of constitutional rights of accused; (d) the state of Nepal failed in fulfilling its legal obligation under international human rights law; (e) the state machinery in the zeal of securing capital punishment violated the international norms by not adhering to the process of extradition; (f) the Indian state machinery did not present the demeanour of the accused and the support extended by him during investigation; (g) the Indian state machinery made false statements about his arrest and detention.       

Moreover, Prof. Surya Deva of City University of Hong Kong has found after analysing 86 cases decided by the Indian Supreme court between January 2000 and October 2011 that the judiciary has applied the principle of ‘rarest of rare’ in ‘quite an inconsistent and arbitrary manner’ and the principle has outlived its utility. In fact, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) the Supreme Court itself observed that ‘it can be safely said that the Bachan Singh threshold of rarest of rare cases has been variedly and inconsistently applied by the various High Courts’ as well as Supreme Court’. In this backdrop when the absence of minor mitigating factors can change life into death, such nondisclosure on the part of the state before the trial court, in my view, is a serious omission of the investigating and prosecuting agency which not only deprived the accused of fair trail but also prevented the judges from balancing the aggravating and mitigating circumstances to determine the appropriate quantum of punishment. Such omission can only be rectified if the Supreme Court either remits the case to the trial judge to re-determine the quantum of punishment in light of the facts newly revealed or if it exercises its power under Article 142 of the Constitution to commute death sentence to life imprisonment.

https://plus.google.com/u/0/115453286903130501373/posts