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BRIEF PREPARED BY PETITONER IN CWP 1851 OF 2021 BEFORE HON’BLE

HIGH COURT OF DELHI IN COURT NO. 37 ITEM NO. 123 ON 23.09.2021

1. That at the heart of this matter are the (in the unamended writ petition as originally
filed by the petitioner) continuing grave human rights offences by the State (whether
the organ exercises legislative, executive, judicial or any other functions) since
28.09.1993, as substantiated by the original writ petition as filed (without any
amendment on account of subsequent orders of an authority, court or tribunal) with
particular reference to Prayer V read with the contents of the petition and annexures,
enclosed therein, in entirety, upon the totality of facts alleged by petitioner, which
tend to substantiate allegations of continuing human rights offences against all ten
initial respondents, in the unamended writ petition, on the primary foundation of
continuing grave violation of cls.(1) Article 14, ICCPR, 1966.
2. That cls.(1) Article 14, ICCPR, 1966 is, in terms: “Part III… Article 14 (1). All
persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law. The press and the public may be excluded
from all or part of a trial for reasons of morals, public order (ordre public) or
national security in a democratic society, or when the interest of the private lives of
the parties so requires, or to the extent strictly necessary in the opinion of the court
in special circumstances where publicity would prejudice the interests of justice; but
any judgement rendered in a criminal case or in a suit at law shall be made public
except where the interest of juvenile persons otherwise requires or the proceedings
concern matrimonial disputes or the guardianship of children.”
3. Furthermore ILC Articles on the Responsibility of States for Internationally
Wrongful Acts, adopted in 2001, contain the following Article 4(1): “The conduct
of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other functions,
whatever position it holds in the organization of the State, and whatever its
character as an organ of the central government or of a territorial unit of the
State.”[International Law Commission, Draft articles on Responsibility of
States for internationally wrongful acts, UN Doc. A/56/10 (2001)] That the
general restriction to justiciability under this Act by State Parties alone, is exempted
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in the Act itself in case of grave breaches of individual rights at cls.3 of Article 41:
“Article 41 Particular consequences of a serious breach of an obligation under
this chapter 1. States shall cooperate to bring to an end through lawful means any
serious breach within the meaning of article 40. 2. No State shall recognize as lawful
a situation created by a serious breach within the meaning of article 40, nor render
aid or assistance in maintaining that situation. 3. This article is without prejudice
to the other consequences referred to in this part and to such further consequences
that a breach to which this chapter applies may entail under international law.”
4. That a co-ordinate bench of Hon’ble Ms. Justice Hima Kohli in CWP 10892 of 2017
titled Murari Lal Sharma & Sarvadaman Singh Oberoi v. Union of India & Ors vide
Judgement & Order dt. 07.12.2017 (as modified in Order dt. 06.03.2018) held that
the initial cause(s) of action complained of will hold good even if undergo change
by subsequent orders of an authority, court or tribunal, (at para 7):. “7. We are not
inclined to accept the said submission made on behalf of the petitioner No.1. In the
present case, the punishment originally awarded by the Summary Court Martial to
the petitioner was of dismissal from service with rigorous imprisonment of three
months. Only subsequently, was the same converted into an order of discharge. In
these circumstances, it cannot be stated that the present case falls under the
exclusion clause of Section 3(o) of the Armed Forces Tribunal Act. In our view, the
remedy of the petitioner would still lie before the Tribunal.”
5. That the continuing failure of the respondent State to file a para wise response
additionally constitutes a further ongoing grave violation of cls.(1) Article 14,
ICCPR, 1966,
6. That cls.(1) Article 14, ICCPR, 1966 corresponds to Article 8 of the American
Convention on Human Rights, 1969 which is in terms “Chapter 2… Article 8. Right
to a Fair Trial 1. Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation of a criminal
nature made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.” See also IACtHR Series 37 ing, Case of
the “White Van” (Paniagua-Morales et al.) v. Guatemala 08.03.1998 para 137
“137. The Commission alleged that Guatemala violated the right to a fair trial in
failing to respect the right of the victims and their relatives to be heard by a
competent, independent and impartial judge or tribunal in order to establish their
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rights. According to the Commission, owing to Judge Trejo’s kidnapping and the
threats he received, he could not fulfill the requirements established in Article 8 of
the American Convention, as proven by the succession of events in the instant Case.
The Commission considered it the duty of the State to ensure the existence of
effective”]
Place Gururgram
Date: 23.09.2021
Sd/-
Petitioner-in-person
Sarvadaman Singh Oberoi
1102, Tower 1, Uniworld Garden I, Sector 47 Gurugram-122018,
Mob. No. 9818768349
Email: manioberoi@gmail.com

ENCLOSURE: DIRECT APPLICATION OF CUSTOMARY INTERNATIONAL

LAW IN THE DISTRICT COURTS OF INDIA ON/FROM 26.01.1950, A BRIEF
NOTE 22.09.2021 Pages 4-8
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DIRECT APPLICATION OF CUSTOMARY INTERNATIONAL LAW IN THE

DISTRICT COURTS OF INDIA ON/FROM 26.01.1950, A BRIEF NOTE 22.09.2021

Hypothesis
7. That a hypothesis is made that on and from 26.01.1950 every court validly
constituted under Article 375 & 253 (overriding foregoing provisions of Part XI
Chapter I) read with Articles 14, 19, 21 , 51, 235, 372, 375, 395 of the Constitution
of India 1949, or Ss.3, 9, 14 & 16 read with cls. (17) (d) of S.2 & cls. (c) of S.13 of
the Code of Civil Procedure 1908, or S.5 read with cls.(2) of S.4 of the Code of
Criminal Procedure 1973 or any other court of universal or special jurisdiction,
validly constituted in India, as postulated hereinabove, is required, under Article 375
to respect international law; it is furthermore required to implicitly, and without
any reservation, uphold “Customary International Law” .

8. That, notwithstanding the limits placed on the degree of respect by the District
Courts to “international law” qua cls. (c) of S.13 of the Code of Civil Procedure
1908, “(c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law of India in cases
in which such law is applicable;” it is to be noted, as expostulated in subsequent
paragraphs below, that “Customary International Law” (“CIL” hereinafter)
stands at the highest pedestal (though not in every district court jurisdiction in the
World) in every District Court in India. This hypothesis is now briefly expostulated;
the relevant provisions of law (including customary international law), being
extracted wherever necessary to explain and substantiate the hypothesis.

Legislative Position of “CIL” in the Republic of India on and from 28.09.1993

9. That (with retrospective effect from 28.09.1993) it was ordained [under Article 253
(overriding foregoing provisions of Part XI Chapter I)] unanimously by joint session
of both Houses of the Parliament on 08.01.1994 that violations of human rights,
including those embodied in the International Covenants, particularly ICESCR,
1966 & ICCPR, 1966 (which would naturally include cls.(1) Article 14, ICCPR
regarding justiciability of human rights guaranteed under “CIL”) would constitute a
special class of “offences” [Ss. 30 & 31 of the Protection of Human Rights Act, 1993
hereinafter “1993 Act”] which may be tried in a Court of Sessions.
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Special Duty of Prosecutor is to be Independent of the Executive

10. That on 27.09.2021 the Human Rights Courts, set up in 1993, would enter into their
29th Year of otiose inaction purely because no Section 31 prosecutors have been
validly appointed. Even earlier to 1993, the Hon’ble Supreme Court of India in 1988
itself had clarified that no prosecutor/ government pleader appointed by the State
can appear against the State itself by upholding a cogent 1981 judgement of the
Hon’ble High Court of Delhi. Therefore the cases in the Human Rights Court being
against the State itself, require a “CIL” type of power for the Special Prosecutor with
full powers as available to prosecutors under “CIL.” [Mukul Dalal v. Union of
India (1988) 90 BomLR 208 (S.C.), KC Sud v. SC Gudimani (1981) ILR (1)
Delhi 680]

List III Criminal Law Inapplicable for Trial of Human Rights Court’s Offences
11. That it is to be noted that the Code of Criminal Procedure 1973 is a post
Constitution Legislation which belongs to the genre of List III. That even under the
Government of India Act, 1935, its predecessor, the Code of Criminal Procedure
1898 belonged to the genre of List III Concurrent Legislative List, Seventh Schedule
Ss100 & 104. In the 1935 Act, Item 1 was legislated thus: “1. Criminal law,
including all matters included in the Indian Penal Code at the date of the passing of
this Act, but excluding offences against laws with respect to any of the matters
specified in List I or List II and excluding the use of His Majesty's naval, military
and air forces in aid of the civil power.”

12. That as regards the Code of Criminal Procedure 1973 it also belongs to the genre
of List III Concurrent List, Seventh Schedule Article 246 Part XI Chapter I (noting
that Article 253 is in terms “Notwithstanding anything in the foregoing provisions
of this Chapter..”) in the 1949 Constitution, Item 1 was legislated thus: “1. Criminal
law, including all matters included in the Indian Penal Code at the commencement
of this Constitution but excluding offences against laws with respect to any of the
matters specified in List I or List II and excluding the use of naval, military or air
forces or any other armed forces of the Union in aid of the civil power.”
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13. That it is useful to consider S.5 of the Code of Criminal Procedure: “5. Saving.
Nothing contained in this Code shall, in the absence of a specific provision to the
contrary, affect any special or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of procedure prescribed, by
any other law for the time being in force.”

14. It is therefore, in view of the clear ratio of Union of India and Ors v. Agricas LLP
and Ors MANU-SC-0614-2020 of direct application of “CIL” to all courts in India,
conclusive beyond any manner of doubt, that “Criminal Law” under List III is
excluded from application to the “1993 Act” and its Special Prosecutor/ Special
Court, which Act having been passed in compliance of International Obligations of
India is covered by List I Items 13 & 14 as also under overriding Article 253 of the
Constitution of India, 1949.

Special Duty of Prosecutor is to be Independent of the Court

15. That Parliament having brought into existence a Section 31 Prosecutor (which
necessarily has to be appointed and controlled only in terms of “CIL”) to
independently receive and prosecute offences of human rights violations by the State
or any other entity before a Court of Sessions mandated in terms of Section 30 of
the 1993 Act, has only substituted that part of the already existing international
criminal jurisdiction of a Judicial Magistrate First Class (under “CIL” & Article 375
etc) which pertain to offences of violation of human rights by the State or any other
entity, and transferred it for direct consideration under “CIL” by the Section 31
Prosecutor (“CIL”) who shall alone prosecute the offences before the Section 30
Court. In State of U.P. v. Johri Mal, (2004) 4 SCC 714 it was held by the 3 judge
bench at SCC p.740 para 64: “64. In Mukul Dalal v. Union of lndia this Court held
that office of the Public Prosecutor is a public one and nobody should be appointed
as a Special Public Prosecutor at the instance of a complainant, stating: (SCC pp.
152-53, para 10)….” Prosecutors are gatekeepers to the criminal justice process as
stated in R v Banks [1916] 2 KB 612; (1917) 12 CrAppR 74 by Avory J, delivering
the judgment of the Court of Criminal Appeal, commenting at pages 623 and 76
respectively: 'Counsel for the prosecution throughout a case ought not to struggle
for the verdict against the prisoner, but they ought to bear themselves rather in the
character of ministers of justice assisting in the administration of justice.'
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16. That the 179th Law Commission Report, 31.07.2006 noted in Chapter II at pages
12-13 of the Report ““The Prosecutor has a duty to the State, to the accused and to
the Court. The Prosecutor is at all times a minister of justice, though seldom so
described. It is not the duty of the prosecuting counsel to secure a conviction……..
His attitude should be so objective that he is, so far as humanly possible, indifferent
to the result. It may be argued that it is for the tribunal alone, whether magistrate
or jury, to decide guilt or innocence” (Christmas Humphreys (1955 Criminal Law
Review 739 (740-741)). The Law Commission of India in its 154th Report on ‘Code
of Criminal Procedure, 1973’ (in chapter III, para 15) quoted Babu v. State of
Kerala : 1984 Cr LJ 499 (Ker H.C.) to the following effect: “Public Prosecutors are
really Ministers of Justice whose job is none other than assisting the State in the
administration of justice. They are not representatives of any party. Their job is to
assist the Court by placing before the Court all relevant aspects of the case………”
That the 179th Law Commission Report, 31.07.2006 having noted these astute
observations advised in Chapter II, at pages 13-14 of the Report “Prosecutors have
duties to the State, to the public, to the Court and to the accused and, therefore, they
have to be fair and objective while discharging their duties. Public Prosecutor has
to act independently from the Police: The ‘independence’ of the prosecutor’s
function stands at the heart of the rule of law. Prosecutors are expected to behave
impartially……. It is now too well-settled that Prosecutors are independent of the
….. Courts.”

Whether the Executive or a Court May Refute “CIL”

17. That it may be postulated that “Sovereignty” lies under Article 73 with the Executive
and hence “CIL” cannot be enforced against it. This argument is only to be made, in
order to be rejected. Not only the Constituent Assembly in 1949, but the Legislature
on 08.01.1994 also resoundingly upheld direct application of “CIL” by all three
organs of State. On 13.09.2017 in its Memorial in India v. Pakistan (Jadhav Case)
before the ICJ, the Republic of India lavished fullest support on “CIL”. All that was
left for the finality of direct application of “CIL” in India (so long as no fundamental
right of a citizen or a resident of India is infringed) was the judgement in Union of
India and Ors v. Agricas LLP and Ors MANU-SC-0614-2020.
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CONCLUSION
18. That therefore it may reasonably be inferred that every Article 235 court validly
constituted under Article 375 & 253 read with Articles 14, 19, 21 , 51, 235, 372,
375, 395 of the Constitution of India 1949, or Ss.3, 9, 14 & 16 read with cls. (17)
(d) of S.2 & cls. (c) of S.13 of the Code of Civil Procedure 1908, or S.5 read with
cls.(2) of S.4 of the Code of Criminal Procedure 1973 or any other court of
universal or special jurisdiction, validly constituted in India, as postulated
hereinabove, is required, under Article 375 to respect international law; it is
furthermore required to implicitly, and without any reservation, uphold
“Customary International Law” .