New Delhi: As the nation observed the 70th death anniversary of Mahatma Gandhi on Tuesday, a claim has been made in the Supreme Court that the alleged conspirators were hanged even before the murder trial had attained legal finality from the top court.
The Supreme Court, which is seized of a PIL seeking reinvestigation into Mahatma Gandhi's assassination, has been told that the two alleged conspirators — Nathuram Godse and Narayan Dattatraya Apte — were hanged on 15 November, 1949, 71 days before the Supreme Court of India came into existence on 26 January, 1950.
In an affidavit, Mumbai-based Pankaj Phadnis, a trustee of charitable trust Abhinav Bharat, has countered the report of senior advocate Amarender Sharan, who is amicus curiae in the matter, has not supported his plea to reopen the investigation into Mahatma Gandhi's death.
Mahatma Gandhi was assassinated on 30 January, 1948 at Birla House in Lutyens' Delhi.
The petitioner said both Godse and Apte were hanged after the High Court of East Punjab confirmed their death sentences on 21 June, 1949. But the Privy Council did not grant permission to their families to file an appeal on the ground that it would not have been decided before 26 January, 1950 when the Indian Supreme Court was to be born, he claimed.
Phadnis, in his reply to the report of the amicus curiae, referred to lawyer Rajan Jayakar, who studied the original records of the trial while curating an exhibition to mark the Supreme Court of India's golden jubilee in 2000.
He quoted Jayakar as saying "the privy council was part of the British Parliament. While appeals from England were heard by the House of Lords, those from British colonies were heard by the judicial commission of the Privy Council."
During the British rule, Privy Council was the highest court of appeal in India, which was later known as the Federal Court of Appeal. After the replacement of the Federal Court with the Supreme Court of India in January 1950, the Abolition of Privy Council Jurisdiction Act 1949 came into effect.
Phadnis said "on October 26, 1949, the Privy Council did not grant leave (permission to file the petition) to the families of the accused, including Godse, who had filed the SLP.
"They had refused to grant leave on the ground that even if they did admit the petition, it would not have been decided before 26 January, 1950 when the Indian Supreme Court was to be born. Once the Supreme Court of India came into existence, the jurisdiction to hear the SLP would lie with it."
Thus, the Mumbai-based researcher claimed that "Gandhi murder trial has not yet attained legal finality."
To support his contention, Phadnis referred to the Supreme Court's 2017 judgement in the 22 December, 2000 Red Fort attack case in which it was held that an open court hearing is mandatory even at a review stage in cases where death penalty has been awarded.
"Let alone an Open Court hearing, Narayan Dattatraya Apte, accused no. 2, who claimed to be innocent, was not even left alive for 71 days to be able to reach the doorstep of this Hon'ble (Supreme) Court," he said in the affidavit.
Phadnis, who gave point-wise reply to counter the amicus curiae's report, said the State of Dominion of India chose to refuse to allow the Supreme Court of India to adjudicate the matter of murder of Mahatma Gandhi.
"It (Dominion of India) ought to have waited for the Supreme Court of India to come into existence, which event was scheduled to happen within just three months of the decision of the Privy Council on 26 October, 1949.
In an act of indecent haste which raises suspicions, the State of Dominion of India hanged Godse and Apte on November 15, 1949," it said.
Updated Date: Jan 30, 2018 22:39 PM