In a recent judgment, the Supreme Court held that the statements of the prosecution witness recorded in the absence of the accused can be read as a substantive piece of evidence when the prosecution witness could not be traced out and produced in the witness box for deposition during trial after the accused had been arrested.

Affirming the decision of the High Court and Trial Court, the bench comprising Justices BR Gavai and Sandeep Mehta observed that the statements of the prosecution witness recorded in the absence of the accused under Section 299 of Cr.P.C. (i.e., when an accused person has absconded, and that there is no immediate prospect of arresting him) could be used against the accused after his arrest in the event of non-availability of the prosecution witness.

Section 299 of Cr.P.C. is considered to be an exception to Section 33 of the Evidence Act. This means thereby, the statements of the witness recorded under Section 299 of Cr.P.C. wouldn't be hit by Section 33 of the Evidence Act, which provides that the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible.

“On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the preconditions in both the sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 CrPC before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established…”, the court clarified in Nirmal Singh.

The prosecution witness who made statements under Section 299 of Cr.P.C. against the accused could not be traced out and produced in the witness box for deposition during trial after the accused had been arrested despite ample efforts being made by the Investigating Agency to summon and examine the witness. Therefore, the court upheld the decision of the trial court which had justified the statements of the prosecution witness to be read as a substantive piece of evidence.

“Viewed in light of the provisions of Section 299 Cr.P.C. read with Section 33 of the Indian Evidence Act, 1872 as interpreted by this Court in the case of Nirmal Singh (supra) and Jayendra Vishnu Thakur(supra), the trial Court was justified in holding that the statement of Ashok Kumar Pathak (prosecution witness) recorded in these proceedings was fit to be read as a piece of substantive evidence. We concur with the findings recorded by the trial Court and affirmed by the High Court on this vital aspect of the matter.”, the court said.

The appeal was accordingly dismissed.

SUKHPAL SINGH VERSUS NCT OF DELHI

The Supreme Court on Tuesday (February 20) observed that when the case of the prosecution is entirely based on the extra-judicial confession being circumstantial in nature then the accused cannot be convicted for the offence unless the chain of circumstances is completed by the prosecution.

Reversing the findings of the High Court, the Bench Comprising Justices Bela M. Trivedi and Satish Chandra Sharma observed that when the inference drawn by the prosecution based on the chain of circumstances is not explained by the prosecution, then the task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution.

“It may be noted that the entire case of the prosecution is based on circumstantial evidence. The principles concerning circumstantial evidence are fairly settled and are generally referred as the “Panchsheel” principles. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete. It must also be established that the chain of circumstances is consistent with the only conclusion of guilt. The margin of error in a case based on circumstantial evidence is minimal. For, the chain of circumstantial evidence is essentially meant to enable the court in drawing an inference. The task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution.”, the Judgment authored by Justice Satish Chandra Sharma observed.

Background

It was a case of the prosecution that the appellant-accused made a voluntary extra-judicial confession to PW 1 (father of the deceased child) that he murdered his 2.5-year-old child and threw the body of the deceased child in the well.

Based on the extra-judicial confession, PW 1 took the appellant-accused to the police station, and after discovering the dead body floating in the well based on the accused confession, the Police registered the FIR against the accused under the provisions of the Indian Penal Code.

The trial court has acquitted the accused based on the inconsistencies discovered in the depositions made by the prosecution witnesses.

However, the High Court has reversed the findings of the Trial Court and convicted the appellant-accused.

It is against the decision of the High Court that the appellant-accused preferred a criminal appeal before the Supreme Court.

Submissions Made by the Parties

It was submitted by the appellant-accused, that the High Court had wrongly re-appreciated the evidence by blindly relying on the extra-judicial confession made by the appellant and did not subject the extra-judicial confession to a stern test and went on to place undue reliance on the same.

Per contra, it was submitted by the respondent state that the High Court has rightly re-appreciated the entire evidence as the extra-judicial confession led to the discovery of the object/dead body. Further, it submitted that the minor discrepancies must not be allowed to demolish the entire testimony of a witness.

Supreme Court's Observation

Agreeing to the submissions made by the accused, the Supreme Court observed that the High Court has erred in convicting the accused by re-appreciating the evidence and relying on the extra-judicial confession made by the accused to the PW 1 (an interested witness being a father of deceased child).

The Supreme Court noted several discrepancies in the depositions made by PW 1 related to the arrest of the appellant-accused and found evidentiary aspects of such depositions as doubtful.

“The confession was followed by two things – the arrest of the appellant and recovery of dead body of the deceased. The evidentiary aspects concerning these facts are equally doubtful. As per the testimony of PW-1, he had taken the appellant to the police station and he was arrested there. Contrarily, PW-16/I.O. deposed that after recording the complaint, he had arrested the appellant from his house. The mode and manner of arrest, especially the place of arrest, is doubtful. It also raises a question on the aspect of confession – whether the confession was recorded when the appellant himself visited the police station with PW-1 or when he was arrested from his house and was taken to the police station by PW-16. The confessions, one made after a voluntary visit to the police station and the other made after arrest from the house, stand on materially different footings from the point of view of voluntariness. The likelihood of the latter being voluntary is fairly lesser in comparison to the former.”

Further, the Supreme Court also noted the inconsistencies in the statements made by PW 1 related to the recovery of the dead body, therefore the case of the prosecution is not free from doubts.

“The description of the deceased given by PW-1 in his complaint Ex.P1 did not match with the description of the dead body. The clothes found on the dead body were substantially different from the clothes mentioned by PW-1 in his complaint. The presence of ornaments was not mentioned in the complaint. Furthermore, identification of the dead body by face was not possible as the body had started decomposing due to lapse of time. Admittedly, the dead body was recovered after 12 days of the incident from a well. Sensitive body parts were found bitten by aquatic animals inside the well. The theory of ornaments has already been held to be a figment of imagination by the Trial Court and the High Court in an unequivocal manner. Therefore, the prosecution case regarding the identity of the dead body is not free from doubts.”

Extra-Judicial Confession Being a Weak Type Of Evidence Should Be Accepted With Great Care and Caution

The court records that the conviction of the appellant is largely based on the extra-judicial confession allegedly made by him before PW-1. Further, it stated that the extra-judicial is a weak type of evidence and should be accepted with great care and caution.

“It is no more res integra that an extra-judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra-judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra-judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra-judicial confession.”

Accused Acquittal Can't Be Reversed Merely On The Existence Of Different View

The Supreme Court observed that the findings of the trial court to acquit the accused cannot be reversed merely because a different view appears to be recorded by the High Court after re-appreciating the evidence.

“This Court cannot lose sight of the fact that the Trial Court had appreciated the entire evidence in a comprehensive sense and the High Court reversed the view without arriving at any finding of perversity or illegality in the order of the Trial Court. The High Court took a cursory view of the matter and merely arrived at a different conclusion on a re-appreciation of evidence. It is settled law that the High Court, in exercise of appellate powers, may reappreciate the entire evidence. However, reversal of an order of acquittal is not to be based on mere existence of a different view or a mere difference of opinion.”, the Supreme Court observed.

“to reverse an order of acquittal in appeal, it is essential to arrive at a finding that the order of the Trial Court was perverse or illegal; or that the Trial Court did not fully appreciate the evidence on record; or that the view of the Trial Court was not a possible view.”, the Supreme Court added.

According to the court, if two views are possible then the view favoring the innocence of accused must be taken in to account.

When Case Is Entirely Based On Circumstantial Evidence, The Chain Of Events Must Be Completely Established

The Supreme Court stressed the importance of establishing a complete chain of evidence when the prosecution relies solely on circumstantial evidence and in the absence of direct evidence.

“For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete chain of circumstances is consistent with the only conclusion of guilt. The margin of error in a case based on circumstantial evidence is minimal. For, the chain of circumstantial evidence is essentially meant to enable the court in drawing an inference. The task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution.”

“The doubtful existence of the extra judicial confession, unnatural conduct of PW-1, recovery of dead body in the presence of an unreliable witness PW-2, contradictions regarding arrest, unnatural prior and subsequent conduct of PW-1, incredible testimony of the witnesses in support of the last seen theory etc. are some of the inconsistencies which strike at the root of the prosecution case.” the Supreme Court highlighted the contradictions which doesn't establish the chain of events.

Purpose of Criminal Trial Is To Punish Guilty And Not Innocent

After finding that the prosecution had miserably failed to establish a coherent chain of circumstances, the court disagreed with the submission made by the respondent state to contend that minor inconsistencies could not be construed as reasonable doubts for ordering acquittal.

According to the court, the observations in this regard may not advance the case of the respondent in the present appeal because the inconsistencies in the case of the prosecution are not minor inconsistencies.

“It is also noteworthy that the purpose of criminal trial is not only to ensure that an innocent person is not punished, but it is also to ensure that the guilty does not escape unpunished. A judge owes this duty to the society and effective performance of this duty plays a crucial role in securing the faith of the common public in rule of law. Every case, wherein a guilty person goes unpunished due to any lacuna on the part of the investigating agency, prosecution or otherwise, shakes the conscience of the society at large and diminishes the value of the rule of law. Having observed so, the observations in this regard may not advance the case of the respondent in the present appeal. It is so because the inconsistencies in the case of the prosecution are not minor inconsistencies. As already discussed above, the prosecution has miserably failed to establish a coherent chain of circumstances.”

Conclusion

In light of the aforementioned observations made by the Supreme Court, the appeal preferred by the appellant-accused is allowed and the impugned order/judgment of the High Court was set aside.

The Supreme Court affirmed the view taken by the Trial Court and acquitted the accused.

Background:

1. Ancestral Property and Koorchit of 1973: The ancestral property was divided between two branches of a family by way of a Koorchit (family partition deed) in 1973.
2. Sale of Share by One Branch: One branch of the family had sold their share of the property through registered sale deeds to third parties before 1960. Subsequently, they declared through a registered deed in 1972 that they had exhausted all their share in the particular Survey Number.
3. Release Deeds of 2002: Despite the prior sale and declaration of exhaustion of share, two brothers from the branch that had already sold their share executed two release deeds in 2002. These deeds purportedly released their interest in favor of each other regarding the share of their cousin's property.
4. Purchase by Client: The client (referred to as "you") has purchased the property from the branch that legally owns it.

Legal Issues:

1. Validity of the Release Deeds of 2002: Can the release deeds of 2002 executed by the two brothers, who had already exhausted their share in the property, create any valid claim over the property that had already been sold?
2. Defense Against the Claims: What legal defenses can be raised to counter the claims made by the litigants based on these release deeds?

Legal Analysis:

1. Exhaustion of Share:

   • The branch that executed the release deeds in 2002 had already sold their share of the property before 1960 and, in 1972, formally declared through a registered deed that they had exhausted their share in the particular Survey Number.
   • The principle of “Nemo dat quod non habet” (no one gives what they do not have) applies here. Since the brothers had no interest in the property after selling their share and declaring the exhaustion of their rights, they had no legal standing to execute release deeds in 2002. Therefore, the release deeds are void ab initio (from the beginning).

2. Doctrine of Estoppel:

   • The branch that sold its share and later declared the exhaustion of its rights is estopped from claiming any further interest in the property. “Estoppel by deed” prevents the parties from asserting something contrary to what is established by a previous deed.
   • The brothers who executed the release deeds in 2002 are barred from making any claims against the property, having already declared that they have no remaining interest.

3. Legal Standing of the Client’s Purchase:

   • You have purchased the property from the branch that legally owns it, and your title is clear. The execution of release deeds by individuals with no interest in the property does not affect your legal title.
   • Under Section 48 of the Transfer of Property Act, 1882, when the property is transferred, any subsequent transfer by the same person has no legal effect.

4. Defense Against the Claims:

   • File a written statement challenging the validity of the release deeds of 2002, highlighting that the executors had no title or interest to release, rendering the deeds null and void.
   • Plead the doctrine of “res judicata” if there have been prior judicial decisions regarding the sale of the property by the said branch, which may prevent the litigants from reopening the matter.
   • Emphasize the principle of “caveat emptor” (let the buyer beware) if the opposing party claims to have purchased the property based on the release deeds, arguing that they should have exercised due diligence.

Conclusion: The release deeds executed in 2002 by the brothers from the branch that had already sold their share and declared exhaustion of their rights are legally ineffective. They cannot create any valid claim over the property you have purchased. You are advised to prepare a strong defense emphasizing the doctrines of nemo dat quod non habet, estoppel, and res judicata to protect your title and interests.

If litigation arises, ensure that all relevant documents, such as the sale deeds, the 1972 declaration, and the Koorchit of 1973, are presented to establish a clear chain of title in your favor.

On July 19, 2024, the International Court of Justice (ICJ), delivered its Advisory Opinion on the legal consequences of Israel's policies and practices in the Occupied Palestinian Territory, including East Jerusalem. This opinion was given at the Peace Palace in The Hague, where the Court is located.

JUDGEMENT/ADVISORY OPINION IN BRIEF

The Court found that Israel’s ongoing presence in the Occupied Palestinian Territory is illegal and must end as soon as possible. Israel is also required to stop all new settlement activities and remove existing settlers from the Occupied Palestinian Territory. Additionally, Israel must compensate for the damages caused to individuals and organizations in the Occupied Palestinian Territory. All countries and international organizations, including the United Nations, must not recognize or support Israel’s illegal presence. The Court recommended that the United Nations, especially the General Assembly and the Security Council, take appropriate actions to swiftly address and end Israel’s unlawful presence as quickly as possible.

Let's first understand:

WHAT IS ADVISORY OPINION?

WHEN IT IS GIVEN?

WHETHER IT HAS BINDING EFFECT?

The ICJ handles two types of cases:

1. Contentious Cases: These are legal disputes between countries. The Court's decisions in these cases are final and binding.

2. Advisory Proceedings: These involve legal advice requested by UN bodies and agencies. The opinions given in these proceedings are influential but not binding. They are delivered in a public session and, despite not being mandatory, often carry significant weight due to the ICJ's authority, influencing the actions of the requesting entity in line with international law.

The ICJ can give advisory opinions on legal questions as per Article 65 of its Statute and Article 96 of the UN Charter. The General Assembly can ask the ICJ for an opinion on any legal question. The ICJ must ensure the question is legal.

THE CASE

In the current case, the General Assembly asked about the legal consequences of Israel's policies as an occupying power and their impact on the legal status of the occupation since 1967. The ICJ confirmed these are legal questions and agreed to give an opinion. Although the ICJ has the discretion to refuse, it usually provides opinions to support the UN's activities.

The United Nations General Assembly asked the International Court of Justice (ICJ) for an advisory opinion on specific legal questions through resolution 77/247, adopted on December 30, 2022. The Secretary-General officially sent this request to the ICJ on January 17, 2023. The questions are:

1.   What are the legal consequences of Israel's ongoing violation of the Palestinian people's right to self-determination, its prolonged occupation, settlement, and annexation of Palestinian territory since 1967, including changes to Jerusalem's demographics and status, and its related discriminatory laws and measures?

2.   How do these policies and practices affect the legal status of the occupation, and what legal consequences arise for all States and the United Nations?

FACTS, HISTORY & CHRONOLOGY

Mandate and Boundaries of Palestine

After World War I, Palestine, previously part of the Ottoman Empire, was placed under a Class "A" Mandate by the League of Nations. This mandate was given to Great Britain. According to the League Covenant, communities from the former Turkish Empire that were developing towards independence could be provisionally recognized as nations. The boundaries of Mandatory Palestine were defined by several agreements, including a British memorandum in 1922 and the Anglo-Transjordanian Treaty in 1928.

United Kingdom's Withdrawal and UN Plan

In 1947, the United Kingdom decided to leave Palestine by August 1948, later moving the date to May 15, 1948. On November 29, 1947, the UN General Assembly adopted Resolution 181, recommending the partition of Palestine into two states, one Arab and one Jewish, and establishing a special international regime for Jerusalem. The Jewish population accepted this plan, but the Arab population and surrounding Arab states rejected it, claiming it was unfair.

Israel's Independence and Conflict

On May 14, 1948, Israel declared independence, citing UN Resolution 181. This led to armed conflict between Israel and several Arab states, and the partition plan was not implemented.

Armistice and Demarcation Lines

On November 16, 1948, the UN Security Council called for an armistice in Palestine. In 1949, armistice agreements were signed in Rhodes between Israel and neighboring states, establishing demarcation lines known as the "Green Line," which separated Israeli and Arab forces. These lines could be adjusted by mutual agreement.

Israel's UN Membership

On November 29, 1948, Israel applied for UN membership, referencing Resolution 181. On May 11, 1949, Israel was admitted as a UN member. The General Assembly acknowledged Israel’s declarations regarding the implementation of Resolution 181.

Creation of the PLO

In 1964, the Palestine Liberation Organization (PLO) was established to represent the Palestinian people.

Six-Day War

In 1967, Israel fought Egypt, Syria, and Jordan in the Six-Day War. By the end of the war, Israel occupied all territories of Palestine beyond the Green Line.

Security Council Resolution 242

On November 22, 1967, the UN Security Council adopted Resolution 242, emphasizing that acquiring territory by war is inadmissible. It called for Israel to withdraw from occupied territories and for all states in the area to respect each other's sovereignty and live in peace within secure boundaries.

Settlements and Jerusalem

After 1967, Israel began establishing settlements in occupied territories and changed the status of Jerusalem. The UN Security Council condemned these actions, stating that all Israeli measures to alter Jerusalem’s status were invalid.

October 1973 War

In October 1973, another war broke out between Israel and Egypt and Syria.

Security Council Resolution 338

On October 22, 1973, the UN Security Council called for a ceasefire and the immediate implementation of Resolution 242. It also urged the parties to start negotiations immediately.

Recognition of the PLO

On October 14, 1974, the UN General Assembly recognized the PLO as the representative of the Palestinian people. On November 22, 1974, it acknowledged the Palestinian right to self-determination.

Peace Treaties with Egypt and Jordan

On September 17, 1978, Israel and Egypt signed the Camp David Accords, leading to a peace treaty in 1979. On October 26, 1994, Israel signed a peace treaty with Jordan, fixing their boundary according to the Mandate for Palestine.

Proclamation of the State of Palestine

On November 15, 1988, the PLO declared the establishment of the State of Palestine, referring to Resolution 181.

Oslo Accords

In 1993 and 1995, Israel and the PLO signed the Oslo I and Oslo II Accords. In 1993, the PLO recognized Israel's right to exist, and Israel recognized the PLO as the representative of the Palestinian people. The Oslo Accords set guidelines for future negotiations and divided the West Bank into Areas A, B, and C.

Transfer of Powers

The Oslo Accords required Israel to transfer some powers and responsibilities in Areas A and B of the West Bank to Palestinian authorities. These transfers have been limited, with Israel retaining significant control over security.

Construction of the Wall

In the early 2000s, Israel began building a wall in the West Bank and East Jerusalem to prevent infiltration. Despite a 2004 court opinion stating that the wall was illegal, construction continued, along with the expansion of settlements.

Disengagement and Settlements

By 2005, Israel evacuated settlers from 21 settlements in Gaza and four in the West Bank. By 2023, about 465,000 settlers lived in the West Bank and 230,000 in East Jerusalem. These settlers are mainly Israelis and non-Israeli Jews eligible for Israeli citizenship.

Roadmap to Peace

On November 19, 2003, the UN Security Council endorsed the Quartet's Roadmap to a Two-State Solution. The Quartet includes representatives from the US, EU, Russia, and the UN. The resolution called for the parties to meet their obligations under the Roadmap and achieve the vision of two states living in peace.

Observer Status for Palestine

On November 29, 2012, the UN General Assembly granted Palestine non-member observer state status, recalling Resolution 181.

Efforts for Peace

In 2016, the UN Security Council adopted Resolution 2334, urging intensified efforts for a lasting peace based on UN resolutions, the Madrid terms, the Arab Peace Initiative, and the Quartet Roadmap. In 2024, the General Assembly and the Security Council reiterated support for a two-state solution and stressed the importance of unifying the Gaza Strip and the West Bank under the Palestinian Authority.

SCOPE AND MEANING OF THE QUESTIONS FROM THE GENERAL ASSEMBLY

The Court examined two key questions posed by the General Assembly. The first question concerned the legal effects of Israel's actions against the Palestinian people. This included Israel's ongoing violations of Palestinians' right to self-determination, its long-term occupation, settlement, and annexation of Palestinian territories, as well as its discriminatory laws. The second question addressed how these Israeli policies and practices impacted the legal status of the occupation and the legal consequences for all states and the United Nations.

The Court focused on the details and context of these questions. The first question outlined three main issues: Israel's violation of Palestinian self-determination, its occupation and settlement activities since 1967, and its discriminatory measures. The Court had to decide whether these actions were against international law, as suggested by the General Assembly. To do this, the Court reviewed various sources and evidence, including UN documents and other credible reports.

The Court did not conduct a detailed fact-finding mission on specific incidents but evaluated the overall nature of Israel's policies and practices. The geographical focus included the West Bank, East Jerusalem, and Gaza Strip. The term "Holy City of Jerusalem" in the question was interpreted as referring specifically to East Jerusalem.

The Court considered the timeframe of the policies and practices starting from 1967, while also taking relevant historical context into account. Recent events, such as the Gaza Strip attack on October 7, 2023, were not included.

The second part of the second question asked how Israel's actions affected the legal status of its occupation. The Court assessed whether Israel's policies and practices changed the legal standing of its occupation and its continued presence in the Palestinian territories. It then determined the legal consequences for Israel, other states, and the UN based on its findings.

APPLICABLE LAW

The Court needed to determine which laws applied to the questions posed by the General Assembly. The Assembly's request referenced several sources of international law, including the United Nations Charter, international humanitarian law, human rights law, relevant UN resolutions, and a previous advisory opinion from the Court.

First, the Court had to understand the status of the Occupied Palestinian Territory under international law. It then decided which international laws were relevant for addressing the Assembly's questions.

The General Assembly's questions assumed that the Occupied Palestinian Territory was under Israeli occupation. The Court had previously explained that a territory is considered occupied when a hostile army controls it, as described in the Hague Regulations. The Court had confirmed that Israel had been occupying parts of this territory since the 1967 conflict.

Although the Court had not addressed the Gaza Strip's status in its previous opinion, it acknowledged that Israel occupied Gaza in 1967. In 2004, Israel began withdrawing its military from Gaza, and by 2005, it had removed its settlements from there. However, despite this withdrawal, reports indicated that Israel still controlled Gaza’s airspace, maritime borders, and some land crossings, among other aspects.

The Court needed to assess how this withdrawal affected Israel's obligations under occupation law. It was not necessary for Israel to maintain a military presence to be considered an occupying power. Instead, the key factor was whether Israel could still exercise authority over the territory.

Given Israel's continued control over significant aspects of Gaza, including borders and infrastructure, the Court believed that Israel's obligations under occupation law remained.

The Court applied various rules and principles to address the Assembly's questions. These included prohibitions on acquiring territory by force and the right of people to self-determination, which are part of international law and the UN Charter. International humanitarian law, particularly the Geneva Convention, also applied, as it governs the treatment of civilians in occupied territories.

Additionally, international human rights law applied. Israel was a party to several human rights treaties, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. These treaties remained in effect even during conflict or occupation. The Court considered these laws alongside humanitarian rules.

The Oslo Accords, which involved agreements between Israel and the Palestinians, were also relevant. These Accords emphasized human rights and the rule of law and recognized the Palestinians' right to self-determination. However, they did not lessen Israel’s obligations under international law.

The Court used international humanitarian law, human rights law, and relevant UN resolutions to address the questions posed by the General Assembly, considering all applicable legal frameworks and agreements.

ISRAEL’S POLICIES AND PRACTICES IN THE OCCUPIED PALESTINIAN TERRITORY

The Court examined whether Israel’s actions in the Occupied Palestinian Territory met its international legal obligations. This review covered several issues, including the prolonged nature of the occupation, Israel’s settlement policy, the annexation of territories occupied since 1967, and any discriminatory measures adopted by Israel. The Court also considered how these policies affected the Palestinian people's right to self-determination.

PROLONGED OCCUPATION

The Court looked into the legal consequences of Israel’s extended occupation of the Palestinian territories, which had lasted over 57 years. It explored the relationship between Israel, as the occupying power, and the local population based on the laws of occupation.

As an occupying power, Israel had certain responsibilities under international law. It was required to manage the territory for the benefit of the local people. This responsibility was not affected by how the occupation began. Occupation was meant to be temporary and did not grant the occupying power permanent control or ownership of the territory.

The Fourth Geneva Convention and the Hague Regulations outlined the duties of an occupying power. These included respecting local laws and not altering the status of public officials or local legal systems. The occupation was intended to be temporary, and the occupying power should only exercise authority to benefit the local population.

The Fourth Geneva Convention set some limits on how long certain obligations applied. However, this did not mean that an occupying power was freed from its duties in cases of prolonged occupation. If local authorities had not taken over the governance, the occupying power had to continue fulfilling its obligations.

Time did not grant additional powers to the occupying power. The occupation remained temporary, and the occupying power could not claim ownership of the territory or expand its powers beyond those outlined by international law.

Even if the occupation lasted a long time, its legal status under international law did not change. The presence of the occupying power had to always comply with rules about the use of force and the prohibition of acquiring territory through force. The Court assessed whether Israel’s long-term presence in the Palestinian territories fit these legal requirements.

The Court then examined Israel’s specific policies and practices, starting with its settlement policy.

SETTLEMENT POLICY

Overview

The Court investigated the legal effects of Israel's settlement policy in the Occupied Palestinian Territory. The term "settlement" was clarified to mean Israeli communities built or supported by Israel in the occupied areas. This term included all structures and processes involved in establishing and expanding these communities. The French version of the resolution used "colonisation," suggesting the Court needed to examine Israel's settlement policy in a broad sense.

Settlements vs. Outposts

The Court recognized the difference between "settlements" and "outposts," with outposts often being established against Israeli domestic law. However, the key issue was whether these communities were part of Israel’s settlement policy. The Court noted that Israel frequently retroactively legalized outposts and provided them with necessary infrastructure.

Historical and Ongoing Settlement Policy

The Court pointed out that Israel had been implementing its settlement policy throughout its occupation of Palestinian territories. Various UN bodies had extensively studied and reported on these settlements. For instance, the Human Rights Council had set up an independent mission to investigate how Israeli settlements affected Palestinian rights. Regular reports from the UN Secretary-General and the High Commissioner for Human Rights detailed the establishment and expansion of these settlements.

From 1967 to 2005, Israel's settlement policy affected the West Bank, East Jerusalem, and the Gaza Strip. After 2005, when Israel removed settlements from Gaza, the settlement policy continued in the West Bank and East Jerusalem. The Court focused on these areas but noted that the policy in Gaza before 2005 was similar to what continued in the West Bank and East Jerusalem.

TRANSFER OF CIVILIAN POPULATION

Legal Prohibition

In a previous ruling, the Court had determined that Israel’s settlement policy violated a specific rule in the Fourth Geneva Convention. Article 49 of this Convention prohibited an occupying power from transferring its own civilian population into the territory it occupies. The Court clarified that this rule not only banned forced relocations but also any measures taken to encourage or organize such movements. The purpose of the rule was to prevent any form of settlement activity by an occupying power.

Incentives for Relocation

Evidence revealed that Israel had been providing incentives to encourage Israeli individuals and businesses to move to the West Bank. This included support for the development of settlements through various measures. Reports from the UN and other sources indicated that Israel had actively promoted the relocation of its citizens and the expansion of settlements, which was in conflict with the Geneva Convention’s rules.

Legalization of Outposts

Israel had also been legalizing outposts that were initially established in violation of its own laws. For instance, in early 2023, Israel decided to officially recognize ten outposts in the West Bank. The Court viewed these actions as encouragement for the transfer of Israeli civilians to these areas, which violated the Geneva Convention’s prohibition on such transfers.

Infrastructure Development

To support these settlements, Israel invested heavily in building infrastructure in the West Bank and East Jerusalem. This included roads, water systems, and other facilities that integrated these settlements more closely into Israeli territory. The rapid growth of settlements and their infrastructure further entrenched the occupation.

Impact on Local Population

The prohibition against transferring an occupying power’s civilians into occupied territory was strict, regardless of whether it displaced the local population. However, the transfer of Israeli settlers into the West Bank and East Jerusalem had indeed led to the displacement of Palestinian residents.

The Court concluded that Israel’s actions in moving and maintaining its civilian population in the West Bank and East Jerusalem breached Article 49 of the Fourth Geneva Convention.

CONFISCATION OR REQUISITIONING OF LAND

Land Seizure for Settlements

Israel's expansion of settlements in the West Bank and East Jerusalem involved the seizure of large amounts of land. Since 1967, Israel had taken over more than 2 million dunams (approximately 2,000 square kilometers) of land in Area C, which constituted over one-third of the West Bank. Some of this land, which had been privately owned, was reclassified by Israel as State land. This reclassification allowed Israel to use it for public purposes, primarily benefiting Israeli settlements.

Use of Absentee Property Law

In East Jerusalem, Israel used the Absentee Property Law of 1950 to confiscate Palestinian land. This law permitted the government to take property if the owner had not been present in the area after November 27, 1947. This legal approach facilitated Israel’s seizure of Palestinian property in East Jerusalem.

Legal Prohibitions on Land Confiscation

International law, specifically Article 46 of the Hague Regulations, prohibited the confiscation of private property, with no exceptions allowed, even for military reasons. Article 52 also stipulated that requisitions (or taking of goods) from people could only be for military needs. According to Article 55, public property had to be managed by the occupying power for the benefit of the local population. In this case, however, land taken for Israeli settlements was used to benefit Israeli settlers, not the local Palestinian population. This practice did not comply with these legal requirements.

Consistency with Previous Rulings

This conclusion aligned with a previous ruling by the Court regarding the construction of the wall in the Occupied Palestinian Territory. The Court had found that the construction of the wall, which involved land confiscation, violated international law. The wall was designed to enclose most Israeli settlements within its boundaries. Since the wall’s construction supported the settlement policy, the same legal issues applied to all land confiscated for supporting settlements, including areas between the wall and the 1949 Green Line, security zones, and closed military zones.

EXPLOITATION OF NATURAL RESOURCES

The Court explained that, according to international law (Article 55 of the Hague Regulations), an occupying power is permitted to manage and use the natural resources of an occupied territory, such as forests and agricultural lands, only for the benefit of the local population and not beyond what is necessary for the occupation. The occupying power was required to protect these resources and ensure that their use did not harm the environment. This principle was also supported by the Rio Declaration of 1992, which emphasized the protection of the environment and natural resources under occupation.

In a case involving the Democratic Republic of the Congo and Uganda, the Court highlighted the principle of permanent sovereignty over natural resources. Although Uganda’s soldiers were found to have exploited Congolese resources, there was no evidence of a systematic governmental policy by Uganda to exploit these resources. Therefore, the principle of permanent sovereignty was not applied in this instance. However, if an occupying power had a policy of exploiting resources against international law, it would violate the principle of permanent sovereignty over natural resources.

The Court observed that Area C, part of the Occupied Palestinian Territory, contained valuable natural resources. Evidence suggested that Israel was exploiting these resources—such as water and minerals—for its own benefit, often to the detriment of the Palestinian population.

Since the start of the occupation in 1967, Israel had controlled the water resources in the Occupied Palestinian Territory. In 1982, control was transferred to Mekorot, an Israeli national water company. Reports indicated that Israel prioritized water supply for its settlements, leading to frequent water shortages for Palestinians, who also faced restrictions on building and maintaining their own water infrastructure.

This control had resulted in Palestinians having access to water below World Health Organization standards. Additionally, Israel’s policies had significantly reduced the amount of agricultural land available to Palestinians and increased water pollution, affecting their agricultural sector and employment opportunities.

Israel’s policies in the Jordan Valley and the Dead Sea demonstrated that settlements extracted minerals and used fertile lands, often leaving Palestinians at a disadvantage. Israeli-operated quarries in Area C extracted resources primarily for Israel, while Palestinian companies had not been permitted to quarry since 1994.

The Security Council had stressed the importance of protecting water resources in occupied territories. The General Assembly had consistently called for Israel to cease exploiting and depleting natural resources in these areas.

Based on the evidence, the Court concluded that Israel’s use of natural resources in the Occupied Palestinian Territory violated international law. By diverting resources to benefit its own population and settlers, Israel had failed to fulfill its role as an administrator and did not ensure adequate access to water for Palestinians. This exploitation of resources also contradicted the Palestinian people’s right to control their natural resources.

EXTENSION OF ISRAELI LAW

According to Article 43 of the Hague Regulations, an occupying power should generally respect the existing laws of the occupied territory unless it is absolutely unable to do so. Article 64 of the Fourth Geneva Convention allows an occupying power to impose new laws if they are necessary to fulfill its obligations, maintain order, and ensure security. However, these new laws should not completely replace the local laws unless absolutely necessary.

In the case of the West Bank, Israel had extended its legal system beyond military law. This extension included Israeli domestic laws that specifically applied to Israeli settlers, covering areas such as criminal law, health insurance, taxation, and elections. Consequently, there were two separate legal systems: one for Israeli settlers and another for Palestinians, who were subject to military law and courts.

Since the occupation began, Israel had largely replaced local laws with its own military laws in the West Bank. Settlers benefited from Israeli civil laws and social benefits, while Palestinians were tried under military law. This meant that settlers enjoyed rights and protections not available to Palestinians, who faced trials in military courts.

Settler councils had taken on administrative roles in the West Bank settlements. Recently, decision-making power over civil affairs in Area C had been transferred from the military to a civilian minister in the Israeli Ministry of Defence.

In East Jerusalem, Israeli domestic law had been in effect since 1967. Israel had expanded its jurisdiction over East Jerusalem and declared it as part of Israel. This was supported by laws that prohibited delegating power to foreign authorities. In practice, Israel treated East Jerusalem as its own territory, applying Israeli law exclusively.

The Court questioned whether Israel’s extension of its laws to the West Bank and East Jerusalem met the requirements of Article 64 of the Fourth Geneva Convention. The transfer of Israeli civilians to these areas was not justified under international law, and the comprehensive application of Israeli law did not align with the conditions set out in the Geneva Convention.

The Oslo Accords, agreements between Israel and the Palestine Liberation Organization (PLO), confirmed that Israel retained responsibility for security and certain administrative functions in the occupied territories. These agreements did not expand Israel’s powers beyond those allowed under international law. Instead, they maintained the existing framework, which did not support the extensive application of Israeli law.

The Court concluded that Israel’s use of its regulatory authority in the occupied territories was inconsistent with the rules outlined in Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention.

FORCED DISPLACEMENT OF THE PALESTINIAN POPULATION

The Court examined how Israel’s settlement policy affected Palestinians, particularly regarding their forced displacement. In a previous opinion, the Court had noted that Israel’s settlement activities contributed to the departure of Palestinians from parts of the West Bank and East Jerusalem.

Large-scale land confiscation and denial of access to resources had made it difficult for Palestinians to sustain their livelihoods, leading many to leave. Israeli military actions had exacerbated the situation, with numerous reports indicating that Israel evicted Palestinians annually through property demolitions and zoning laws. For example, between June 2022 and May 2023, over a thousand Palestinians had been displaced due to property demolitions and confiscations. Similarly, over 700 had been displaced from April 2021 to March 2022, and eviction orders affecting about 1,150 Palestinians in 2022 had been upheld by the Israeli High Court.

According to Article 49 of the Fourth Geneva Convention, all forced transfers and deportations from occupied territories were prohibited, regardless of the reason. This included forced movement within the occupied territory itself. The Convention allowed for evacuation only in rare cases for the safety of the population or urgent military reasons, and even then, those evacuated should be returned once the situation stabilized. This meant that permanent or indefinite displacements were not allowed.

The Court concluded that Israel’s policies, such as forced evictions, extensive demolitions, and movement restrictions, often left Palestinians with no choice but to leave their homes. Since these measures were not temporary and frequently involved reallocating land to Israeli settlements, they violated the prohibition against forced displacement under the Geneva Convention.

VIOLENCE AGAINST PALESTINIANS

The Court noted that Israel’s settlement policy had led to increased violence against Palestinians by both settlers and security forces.

The right to life and protection from violence is guaranteed under international law, including the Hague Regulations and the Fourth Geneva Convention. These laws required that protected persons in occupied territories be treated humanely and safeguarded against threats and violence.

Reports from the United Nations showed that settlers often attacked Palestinians, and Israeli authorities frequently failed to prevent or punish these acts. For example, the Secretary-General’s reports documented frequent and severe attacks by settlers, and the Independent International Commission of Inquiry noted that Israel often did not intervene effectively. In some cases, settlers had attacked Palestinian communities while Israeli security forces either did nothing or even supported the attackers. Israelis who harmed Palestinians were also less likely to face legal consequences compared to cases involving non-Palestinians.

Additionally, evidence suggested that Israeli security forces sometimes used excessive or unnecessary force against Palestinians, especially after settler attacks or during protests against settlement expansion. Reports showed that these forces often employed military tactics in law enforcement situations, leading to a high number of casualties. The Secretary-General’s 2023 report highlighted that more Palestinians were killed in 2022 than in any year since 2005.

Palestinian women and girls also faced gender-based violence, including physical and sexual abuse by Israeli security forces and settlers.

The Court concluded that the violence by settlers, the failure of Israel to effectively address it, and the excessive force used by Israeli security forces contributed to a harsh environment for Palestinians. This systematic failure to protect Palestinians and the use of excessive force were inconsistent with Israel’s international obligations.

CONCLUSION ON ISRAEL’S SETTLEMENT POLICY

The Court confirmed that Israeli settlements in the West Bank and East Jerusalem, along with the systems supporting them, violated international law. This conclusion had been consistently upheld by previous rulings, including the Court's Advisory Opinion on the construction of a wall in Palestinian territories.

The Court was deeply concerned about the recent expansion of Israel's settlement policy. In December 2022, Israel’s parliament had approved the creation of a new ministerial position within the Ministry of Defence. This role granted additional powers over land, planning, and demolition in the West Bank, which was expected to accelerate the approval process for new settlements. Between November 2022 and October 2023, the size of existing settlements had increased significantly. During this period, around 24,300 new housing units were added in the West Bank settlements, including about 9,670 units in East Jerusalem.

THE QUESTION OF ANNEXATION OF THE OCCUPIED PALESTINIAN TERRITORY

The Court examined whether Israel’s actions in the Occupied Palestinian Territory amounted to annexation. To address this, the Court first defined “annexation,” then analyzed Israel’s policies and practices to determine if they conformed to this definition, and finally assessed the legality of these actions.

Understanding Annexation

In this context, “annexation” referred to the forcible integration of the occupied territory into the occupying power's own country, with an intent to permanently control the area. Under international law, occupation is meant to be temporary, and the occupying power must preserve the existing conditions prior to the occupation. Thus, if an occupying power demonstrates an intention to establish permanent control over the territory, it could be classified as annexation.

Annexation can be "de jure" or "de facto." "De jure" annexation occurs when the occupying power formally declares sovereignty over the territory. "De facto" annexation involves actions that result in effective control over the territory without a formal declaration. Both forms aim to establish permanent control.

Israel’s Actions and Annexation

Many argued that Israel’s policies and practices constituted de facto annexation of parts of the Occupied Palestinian Territory. Concerns centered around ongoing settlement construction, the construction of the wall in the West Bank, and related infrastructure. Some interpretations of statements by Israeli officials suggested an intent to permanently control the territory, effectively treating the occupation as permanent.

The Court scrutinized Israel’s actions in East Jerusalem, where Israeli domestic laws had been applied since 1967. In 1980, Israel declared East Jerusalem as part of its capital, and the 2018 Basic Law confirmed this declaration. Reports indicated that a significant portion of East Jerusalem had been appropriated for Israeli settlements, leaving limited space for Palestinian development. Measures such as the building permit scheme and land registration further pressured Palestinians to relocate.

In the West Bank, the 2018 Basic Law promoted the development of Jewish settlements. Large areas of land were designated for Israeli settlements, while Palestinian construction faced severe restrictions. The rapid expansion of Israeli settlements and the increasing settler population, which grew faster than both Israeli and Palestinian populations, highlighted this trend.

The Court noted that Israel’s policies in the West Bank and East Jerusalem appeared to integrate these areas into Israel, displacing Palestinians and extending Israeli control. The construction of the wall, infrastructure integration, and other measures contributed to a situation that could be perceived as permanent, raising concerns about de facto annexation.

Overall, the Court concluded that Israel’s policies, including settlement expansion, infrastructure development, and the application of Israeli law to the occupied territories, indicated a long-term intention to control and integrate these areas. Consequently, these actions amounted to the annexation of significant parts of the Occupied Palestinian Territory.

THE PROHIBITION OF ACQUIRING TERRITORY BY FORCE

No Territory Acquisition by Force

It was widely argued that a country could not legally claim or take control of land through force. Simply occupying a territory did not confer ownership of that land upon the occupying power. The rightful ownership of the land remained unchanged.

International Law Against Annexation

According to the United Nations Charter, countries are prohibited from using force to acquire or control another country's land. This principle was also highlighted in the Declaration on Principles of International Law from 1970, which declared that any land acquired through force was not legally recognized. The International Court of Justice affirmed that this rule constituted a fundamental aspect of international law.

Security Council Resolutions

The UN Security Council had consistently emphasized that acquiring land by force was impermissible. For instance, in 1967 and 1968, the Council declared that Israel’s actions in Jerusalem, including land expropriation, were invalid. More recent resolutions, such as one from 2016, confirmed that Israeli settlements in occupied Palestinian territories, including East Jerusalem, were illegal and impeded peace efforts.

General Assembly Resolutions

The UN General Assembly had also reinforced this principle. In 2022, it asserted that occupation should be temporary and that any annexation of Palestinian land, including East Jerusalem, was illegal under international law. Such actions undermined the peace process and the two-State solution.

Historical Claims and Legal Restrictions

While some argued that Israel’s historical ties to the land should be taken into account, the Court’s focus was on whether actions were legal under contemporary international law. The principle against acquiring land by force meant that historical claims could not justify the use of force to assert sovereignty.

Court’s Findings

The Court determined that Israel’s actions in the Occupied Palestinian Territory amounted to annexation. Attempting to claim sovereignty over this land through forceful policies and practices was deemed inconsistent with international law. The Court further examined how these actions affected the legality of Israel's presence in these territories.

THE QUESTION OF DISCRIMINATORY LEGISLATION AND MEASURES

1. Scope of the Question

The General Assembly had tasked the Court with assessing whether Israel’s laws and actions were discriminatory. The Court was required to determine if these laws and actions were unfair. However, the General Assembly’s question was limited to specific issues rather than addressing all human rights violations in the Occupied Palestinian Territory.

The Court focused on Israeli laws and actions related to particular policies and practices previously discussed. It restricted its review to laws and actions within the Occupied Palestinian Territory, excluding those in Israel or elsewhere. The Court aimed to ascertain whether these laws and actions resulted in unfair treatment, without reviewing every single law or action since 1967, but rather investigating systemic discriminatory practices.

2. The Concept of Discrimination

Discrimination was a central concern in human rights. The United Nations sought to promote respect for human rights and freedoms without discrimination based on race, gender, language, or religion. The Universal Declaration of Human Rights stated that everyone was entitled to rights and freedoms without any form of discrimination.

International humanitarian law also prohibited discrimination, particularly in armed conflicts. Various human rights agreements, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), underscored that rights should be guaranteed without discrimination.

For instance, the Convention on the Elimination of Racial Discrimination (CERD) defined racial discrimination as unfair treatment based on race, color, or national origin that undermined the recognition or enjoyment of human rights.

The Court initially examined whether Israeli laws and actions created unfair differences between Palestinians and other groups based on race, religion, or ethnicity. Upon finding discrimination, it assessed whether these differences were justified and served a legitimate purpose.

3. Residence Permit Policy

The Court evaluated Israel’s residence permit policy in East Jerusalem and its impact on Palestinians. Israel had applied its domestic laws to East Jerusalem, distinguishing between Israeli citizens, non-Israeli Jews, and other residents. Palestinians required a residence permit to stay in East Jerusalem, and since 1995, they had to prove their "center of life" was in the city to retain their permit.

Since 2008, the Israeli government had possessed the authority to revoke these permits, leading to many Palestinians losing their permits over the years. This policy faced criticism for being discriminatory.

The Court determined that this policy adversely affected Palestinians' rights to reside in East Jerusalem. It hindered family reunification and disproportionately impacted Palestinian women. The Court found no legitimate public goal justifying this differential treatment, particularly in light of Israel’s annexation of East Jerusalem, which was deemed unlawful. Consequently, the Court concluded that Israel’s residence permit policy constituted prohibited discrimination.

RESTRICTIONS ON MOVEMENT

The Court examined how Israel restricted the movement of Palestinians in the Occupied Palestinian Territory. Nearly all of Area C, a significant part of the West Bank, was used for Israeli settlements or designated as military zones or nature reserves. While Israelis and those with permits could access these areas, Palestinians required special permits to enter.

Israel has built an extensive road network in Area C, which connects Israeli settlements and Israel itself. However, Palestinians face restrictions on using many of these roads. The UN reports that 29 roads in the West Bank, totaling around 58 kilometers, have restricted access for Palestinians. Restrictions also come from various checkpoints, walls, and administrative hurdles. In early 2023, there were 565 movement obstacles in the West Bank, including checkpoints and roadblocks. Palestinians often need individual travel permits to use certain roads, which are not required for settlers. Additionally, not all permit application procedures are available in Arabic, making it harder for Palestinians to navigate the system.

The wall Israel began building in the West Bank in 2002 has further restricted Palestinian movement. Palestinians living between the completed sections of the wall and the Green Line must obtain special permits or arrangements from Israel to move about. Restrictions also affect travel between Gaza, the West Bank, and East Jerusalem, impacting access to religious sites, particularly during holy days. The UN and other bodies have noted that these restrictions hinder Palestinians' ability to worship and enjoy freedom of religion equally.

Israeli security forces have also been reported to destroy roads and infrastructure used by Palestinians, worsening movement restrictions. Such actions have led to claims of discrimination, as these measures often disproportionately affect Palestinians compared to settlers.

DEMOLITION OF PROPERTY

The Court also looked into Israel's practice of demolishing Palestinian properties in the West Bank and East Jerusalem. Since 2009, nearly 11,000 Palestinian structures had been demolished, including homes, agricultural buildings, and infrastructure related to water and sanitation. The two main reasons for these demolitions were cited as punishment for alleged crimes and the lack of building permits.

Punitive Demolitions: Israeli authorities can order the demolition of properties linked to individuals accused of certain offenses. This measure has been used extensively, with over 2,000 Palestinian properties demolished since the start of the occupation. The legal basis for these demolitions is debated, but they have never been used against properties linked to Israeli civilians accused of similar offenses. This practice is viewed as discriminatory, as it punishes people who are not personally responsible for the alleged crimes.

Demolitions for Lack of Building Permit: Many Palestinians face challenges in obtaining building permits due to restrictive planning policies. Less than 1% of Area C and 13% of East Jerusalem are designated for Palestinian infrastructure. Many permit applications from Palestinians are rejected, leading to unlicensed construction. Structures built without permits are often demolished, which can result in evictions. Recent legal changes have expedited demolition processes and restricted appeals. This has led to a significant number of demolitions, including essential infrastructure and educational facilities. In contrast, settler constructions often avoid demolition despite lacking permits.

CONCLUSION ON DISCRIMINATORY PRACTICES

The Court concluded that Israel’s policies and measures in the Occupied Palestinian Territory involved systematic discrimination against Palestinians. These policies could not be justified by reasonable or legitimate aims and were deemed discriminatory under various international laws. Some argued that these practices amounted to segregation or apartheid, which are severe forms of racial discrimination.

Israel's policies contributed to both physical and legal separation between Palestinian communities and Israeli settlers. This separation was evident through settlement policies and restricted access, as well as through distinct legal systems for settlers and Palestinians. The Court found that these policies breached international agreements against racial segregation and apartheid.

THE QUESTION OF SELF-DETERMINATION

The Court found that Israel’s settlement policies, annexations, and discriminatory measures violated international law. It then examined how these actions affected the Palestinian people’s right to self-determination. The Court had already affirmed that Palestinians possess this right. Its next steps involved defining what this right entails and assessing the impact of Israel’s actions on it.

The United Nations Charter aimed to foster friendly relations based on equal rights and self-determination (Article 1, paragraph 2). The General Assembly recognized the right to self-determination as a fundamental principle of international law, particularly relevant in the context of decolonization, applying to all peoples and territories that had not yet achieved independence.

The Court acknowledged the right to self-determination as a core principle of international law, essential for protecting human rights and considered a fundamental human right. This right is particularly important in decolonization and is seen as inalienable, not replaceable by any other principle.

This right is enshrined in key international treaties, such as the ICESCR and the ICCPR, allowing peoples to freely choose their political status and pursue their own development. The Human Rights Committee emphasized that realizing this right is crucial for ensuring and promoting individual human rights.

The scope of the right to self-determination is broad. The Court was tasked with determining whether Israel’s policies in the Occupied Palestinian Territory hindered the Palestinians’ ability to exercise this right.

Many argued that Israel’s occupation of Palestinian territories violated Palestinians’ right to self-determination. Concerns included settlement expansion, land confiscation, demographic changes, territorial fragmentation, and resource appropriation. Some contended that the right to self-determination should not affect existing borders and should consider Israel’s security needs.

The Court identified several key elements:

• The right to territorial integrity, linked to self-determination, is recognized in international law. The General Assembly and Human Rights Council had called for preserving the territorial unity of the Occupied Palestinian Territory, including East Jerusalem. Israel, as the occupying power, was obligated not to prevent Palestinians from exercising their right to an independent state over the entire occupied territory.
• Israel’s settlement policy had fragmented the West Bank and separated East Jerusalem from it. The expansion of settlements and road networks had limited Palestinian access and enclosed them in isolated areas. This policy undermined Palestinians’ right to self-determination by disrupting the territorial integrity of their land.
• The right to self-determination also protected a people from actions that dispersed or undermined their identity. The Court had previously found that Israel’s construction of the wall and other measures had forced Palestinians out of certain areas, affecting the demographic balance and impeding their right to self-determination. Restrictions on movement further divided Palestinians and weakened their unity.
• Another aspect of self-determination was the right to control natural resources. The Court found that Israel exploited resources in the Occupied Palestinian Territory for its own benefit, violating Palestinians' rights to these resources and hindering their self-determination.
• Self-determination included the right to decide political status and pursue economic, social, and cultural development. Israel’s policies, such as restrictions on movement and dependence on Israeli services, impaired these aspects of Palestinian life. The Economic and Social Commission for Western Asia noted that Israeli actions had severely impacted Palestinians, causing economic and social harm and forcing them to rely on foreign aid.

The violation of Palestinians' rights affected not only individuals but the whole community. Restrictions and policies prevented economic and social development and worsened living conditions, hampering their ability to exercise self-determination.

Israel’s long-term unlawful policies further violated Palestinians' right to self-determination. These policies had deprived Palestinians of their rights for decades and continued to undermine their ability to exercise this right in the future. The Court concluded that Israel's actions breached its obligation to respect the Palestinian people’s right to self-determination.

EFFECTS OF ISRAEL’S POLICIES AND PRACTICES ON THE LEGAL STATUS OF THE OCCUPATION

The Court examined how Israel’s policies and actions affected the legal status of its occupation of Palestinian territories, basing its analysis on international law principles and rules.

The Court had previously demonstrated that Israel’s policies, such as settlement expansion, were inconsistent with the laws governing occupations. These actions led to lasting changes on the ground, impacting the legal status of the occupation and the legality of Israel's continued presence in these areas.

Both the Security Council and the General Assembly had expressed concerns regarding Israel’s efforts to alter the legal status, geography, and demographics of the occupied territories.

For instance, Security Council resolutions had condemned Israel’s actions. Resolution 252 (1968) declared that any measures by Israel to change the status of Jerusalem were invalid. Resolution 446 (1979) called for Israel to halt actions that altered the territories' legal status or demographics, including settlement expansions. Resolution 465 (1980) asserted that Israel’s actions in these territories were illegal and obstructed peace efforts.

Similarly, the General Assembly had voiced concerns over Israel’s actions in the occupied territories. Resolution 32/5 (1977) expressed alarm about measures changing the legal status and demographics of the territories. In 2015, resolution 70/15 urged Israel to adhere to international law and cease actions that altered the territory's status, including land confiscation and annexation.

More recently, resolution 77/247 (2022) called on Israel to end settlement activities and other measures that changed the character of the occupied territories, including East Jerusalem. It highlighted the negative impact on Palestinian rights and peace prospects.

The Court understood that the first part of the General Assembly's question did not pertain to whether Israel’s policies affected the legal status of the occupation, but rather how these policies influenced the legality of Israel’s continued presence in the occupied territories. This was assessed under general international law and the UN Charter.

The Court noted that international law differentiates between rules on the use of force (jus ad bellum) and rules for the conduct of the occupying power (jus in bello) and human rights law. The former addressed the legality of the occupation, while the latter continued to apply regardless of the occupation's legality. For its response to the first part of the question, the Court focused on rules related to the use of force and the right to self-determination.

HOW ISRAELI POLICIES AFFECT THE LEGAL STATUS OF THE OCCUPATION

The Court found that Israeli policies and actions had a significant impact on the legal status of its occupation. Israel’s expansion of settlements, annexation of parts of the occupied territory, and application of Israeli laws in these areas resulted in notable changes to the physical, legal, and demographic characteristics of the Occupied Palestinian Territory. These measures suggested an intention by Israel to establish a permanent presence in the West Bank and East Jerusalem.

Occupation involves using force in foreign territory, but international law imposes limits on this use of force. According to international law and the UN Charter, force cannot be employed to acquire or claim new territory. Occupation does not confer any rights to the occupying power over the territory it occupies.

Israel’s attempts to assert control and annex parts of the occupied territory violated this principle. Such actions affected the legality of Israel's continued presence in these areas. Israel could not claim sovereignty or exercise control over the territories merely by virtue of occupying them. Security concerns did not justify the illegal acquisition of territory.

The right to self-determination is a fundamental principle enshrined in the UN Charter and international law. States must avoid actions that deny peoples their right to self-determination.

The Court observed that Israel's policies obstructed the Palestinian people’s right to self-determination. This included the annexation of parts of the territory, fragmentation of the land, and restriction of access to natural resources. These actions impeded the Palestinians' ability to achieve economic, social, and cultural development.

These policies and actions led to a prolonged denial of the Palestinian people’s right to self-determination, which is a fundamental right. This situation impacted the legality of Israel’s occupation. The Court concluded that occupation could not be used to indefinitely prevent a population from exercising its rights while integrating parts of their land into the territory of the occupying power. The right to self-determination needed to be fully respected without conditions imposed by the occupying power. Given these findings, the Court proceeded to assess the legality of Israel’s continued presence in the Occupied Palestinian Territory.

LEGALITY OF ISRAEL'S CONTINUED PRESENCE IN THE OCCUPIED PALESTINIAN TERRITORY

The Court had considered the legality of Israel's continued presence in the Occupied Palestinian Territory. Some argued that Israel’s occupation was illegal because its actions had led to permanent changes in the territory and its population. These permanent changes were seen as rendering Israel’s ongoing presence in the Occupied Palestinian Territory unlawful.

Participants compared this situation to a past case involving South Africa’s presence in Namibia, suggesting that if South Africa’s occupation was deemed illegal due to similar international law violations, then Israel’s occupation could be regarded as illegal for analogous reasons.

The Court agreed that Israel’s violations of international law, including the prohibition against acquiring territory by force and the denial of the Palestinian people’s right to self-determination, impacted the legality of Israel’s presence in the occupied territories. Israel’s ongoing annexation and control of these areas, along with its obstruction of Palestinian rights, contravened fundamental international laws and rendered its presence unlawful.

This illegality applied to all of the Palestinian territory occupied by Israel since 1967. Israel’s actions had divided and obstructed the Palestinian people’s ability to exercise their rights, and it had extended Israeli sovereignty over significant parts of the territory, contrary to international law. The entire Occupied Palestinian Territory needed to remain intact for the Palestinian people to exercise their right to self-determination.

Some argued that agreements between Israel and Palestine, such as the Oslo Accords, acknowledged Israel’s right to remain in the Occupied Palestinian Territory for security reasons. However, the Court noted that these agreements did not permit Israel to annex parts of the territory or to maintain a permanent presence there for security purposes.

The Court emphasized that despite the illegality of Israel’s continued presence, Israel still had legal responsibilities under international law. These included obligations towards the Palestinian people and other states. Israel was required to fulfill these responsibilities while remaining in control of the territory, irrespective of the legal status of its presence.

LEGAL CONSEQUENCES OF ISRAEL’S ACTIONS AND ITS CONTINUED PRESENCE IN THE OCCUPIED PALESTINIAN TERRITORY

The Court had found that Israel’s actions and policies violated international law. By maintaining these actions, Israel continued to breach the law, rendering it internationally responsible for these violations.

The Court had also determined that Israel’s ongoing presence in the Occupied Palestinian Territory was illegal. It proceeded to discuss the legal consequences of Israel’s actions and its illegal presence, addressing not only the implications for Israel but also the ramifications for other countries and the United Nations.

A. Legal Consequences for Israel

Since Israel’s presence in the Occupied Palestinian Territory is illegal, it is considered a wrongful act. This act is ongoing due to Israel’s policies that violate international laws, such as the prohibition on acquiring territory by force and denying Palestinians their right to self-determination. Israel must end its presence in the occupied territory as soon as possible. This obligation is supported by international law, which requires states to stop unlawful actions.

Israel must also stop all illegal activities related to its occupation. This means halting any new settlement construction, canceling laws that support the occupation, and ending measures that change the demographics of the territory.

Israel must also compensate for the harm caused by its illegal actions. This includes restoring property and cultural assets taken since 1967, removing settlers from occupied areas, dismantling parts of the wall built in the territory, and allowing displaced Palestinians to return to their homes.

If returning property or dismantling settlements is impossible, Israel must provide financial compensation to those affected by its wrongful acts.

Even though Israel is required to address these issues, it must continue to respect international laws, including the right of Palestinians to self-determination and obligations under humanitarian and human rights law.

B. Legal Consequences for Other States

Other countries are also affected by Israel’s wrongful actions. According to international law, all states have a legal interest in upholding principles such as the right to self-determination and prohibitions against acquiring territory by force. States must cooperate with the United Nations to end Israel’s illegal presence and support Palestinian self-determination.

The United Nations has called for states not to recognize changes to the borders occupied by Israel since 1967, including East Jerusalem, unless agreed upon through negotiations. States should not assist or support illegal settlements or actions that reinforce Israel’s unlawful presence.

Additionally, states should ensure they do not enter into agreements or trade that support Israel’s illegal occupation or affect the Palestinian territories unlawfully.

All states are required to ensure that Israel’s illegal presence does not hinder the Palestinian people’s right to self-determination and to respect the obligations of international law, including those under the Fourth Geneva Convention.

C. Legal Consequences for the United Nations

International organizations, including the United Nations, must also adhere to the duty of non-recognition of Israel’s illegal actions. They should not support or cooperate with measures that exploit occupied territories or alter their demographic or geographic character.

The United Nations, particularly the General Assembly and Security Council, must take action to end Israel’s illegal presence and ensure the realization of Palestinian self-determination. They need to consider what steps are needed to address the situation based on the Court’s opinion.

The Court stresses the importance of the United Nations working urgently to resolve the Israeli-Palestinian conflict, aiming for a just and lasting peace in the region.

The realization of Palestinian self-determination and the establishment of secure and recognized borders for both Israel and a future Palestinian state would enhance regional stability and security.

The Court’s conclusions are based on a comprehensive analysis of the legal issues involved, reflecting the complex nature of the situation and the various aspects considered.

FINAL JUDGEMENT

The Court has determined that it has the authority to issue the requested advisory opinion and has decided, with a strong majority, to proceed with it. The Court found that Israel’s ongoing presence in the Occupied Palestinian Territory is illegal and must end as soon as possible. Israel is also required to stop all new settlement activities and remove existing settlers from the territory. Additionally, Israel must compensate for the damages caused. All countries and international organizations, including the United Nations, must not support or recognize the illegal situation created by Israel's presence. The Court recommended that the United Nations, especially the General Assembly and the Security Council, take appropriate actions to swiftly address and end Israel’s unlawful presence.

Present: President SALAM; Vice-President SEBUTINDE; Judges TOMKA, ABRAHAM, YUSUF, XUE, BHANDARI, IWASAWA, NOLTE, CHARLESWORTH, BRANT, GÓMEZ ROBLEDO, CLEVELAND, AURESCU, TLADI; Registrar GAUTIER.

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DISCLAIMER: This Article is a brief synopsis of the Advisory Opinion (based on the original text) delivered by the International Court of Justice (ICJ). It is intended for informational purposes only and does not constitute an official legal interpretation of the judgment. While every effort has been made to ensure the accuracy and completeness of the information contained herein, there may be inadvertent errors or omissions. Any reliance on the information provided in this Article is strictly at the user's own risk. The author does not accept any responsibility or liability for any loss, damage, or inconvenience caused as a result of reliance on this Article.

The concept of maintenance as it pertains to Muslims is taken from Hindu law, which states that: "In all cases, provisions for food, clothing, residence education and medical treatment; in the cases of unmarried daughters, Also the reasonable expense of her marriage." Muslim law does not define maintenance legally. A divorced woman may be eligible to receive maintenance under the following rules.

1. Islamic personal law

2. The Code of Criminal Procedure, Section 125

3. The Muslim Women [Divorce Protection Act] of 1986

It is possible to examine the Muslim maintenance legislation from the perspective of those who are eligible for it, including:

1. Spouse

2. Offspring

3. Parents and grandparents

4. Additional relations

According to Islamic law, a wife's entitlement to maintenance from her husband is unalienable and comes from her standing. Even if the woman has other sources of income, the husband still has a duty to provide for her. Because the woman is regarded as the root [Asl] and the kid as the branch [Fara], the wife's claim for support precedes the claims of small children, a wife can only get maintenance from her husband as long as their marriage is valid. Maintenance is not due if the marriage is invalid and irregular. Under CrPC Section 125, a woman also has the right to maintenance. The code provides for prompt and urgent assistance without addressing the issue of personal law entitlement.

A divorced wife may only make maintenance claims against her ex-husband under Muslim personal law during the time that she observes iddat. The husband is solely liable for the duration of the iddat. Muslim women practice the Arabic term "iddah" or "iddat," which means "period of waiting." Before she may legitimately be married again, a Muslim woman must observe this time of chastity following the dissolution of her marriage due to her husband's death or divorce. The purpose of watching the iddat period is to confirm the presence of paternity and determine if the lady is pregnant.

If the code obtains evidence of the negligence of the person with adequate means who is refusing to support, a Judicial Magistrate First Class can order an individual to provide a monthly allowance for the maintenance of the following individuals:

1. A wife who is unable to provide for herself;

2. Legitimate or illegitimate minor child 

3. A legitimate or a major legitimate child who is physically impaired

4. A parent who is unable to support themselves 

The magistrate may set the monthly allowance at any amount. The court may also impose interim maintenance during the interim and the cost of the proceeding, up until the section 125 proceeding.

If a wife is living in adultery or refuses to remain with her husband for no valid reason, she is not entitled to support. She will not be eligible for such support if she marries again after the divorce date. A husband may request the revocation of any such maintenance order for any of these reasons. The wife is not eligible to get any maintenance if the husband and wife are living apart with their consent. The right of a Muslim woman to maintenance from her husband is likewise expanded under Section 125. A Muslim woman is entitled to support under Islamic law, but only during the time of her iddat.

However, Section 125 gives Muslim women access to its provisions, expanding their entitlement to maintenance through remarriage. Section 125 of the Code of Criminal Procedure governs maintenance. "Divorced wife" who hasn't remarried is included in the definition of wife in it. Ali Hussain vs Bai Tahira The Supreme Court ruled in 1979 that a divorced Muslim woman is entitled to maintenance even if her personal laws had previously paid her the full amount owed. Section 125 is of a secular nature and is not governed by any personal laws. In Mohammed Ahmed Khan v. Shah Bano Begum (1985), it was decided that Muslim divorcees are subject to section 125 of the CrPC until they get married again.

The Supreme Court ruled in Mohammed Ahmed Khan v. Shah Bano Begum (1985) that section 125 and Muslim personal law are not inconsistent. The court noted that Muslim personal law restricts a husband's obligation to support a divorced wife for the duration of her iddat. The husband's obligation to provide for the divorced wife ends after the iddat period if she can support herself. If not, she can file for divorce under Section 125 of the Code of Criminal Procedure. This issue received a lot of attention and criticism from certain quarters who believed that it was unIslamic to provide maintenance after the iddat period, even in the CrPC.

The Supreme Court ruled on July 10, 2024, in the case of Mohd Abdul Samad v. The State of Telangana & Anr., Special Leave to Appeal (Crl), that a Muslim woman who has been divorced may file a maintenance claim against her former spouse in accordance with Section 125 of the Code of Criminal Procedure. The Muslim Women (Protection of Rights on Divorce) Act of 1986 grants Muslim women additional rights, according to the Court. A Muslim man's appeal challenging the order to provide his divorced wife with interim maintenance under Section 125 CrPC was denied by the Bench of Justices BV Nagarathna and Augustine George Masih.

According to the appellant, the following are the short facts that gave rise to the current appeal: the appellant was the spouse of Respondent No. 02 in this case. On November 15, 2012, both parties joined the marital consortium. Nevertheless, on April 9, 2016, Respondent No. 02 moved out of the married residence due to a breakdown in their relationship. Respondent No. 02 then filed FIR No. 578 of 2017 against the appellant for acts punishable by Sections 498A and 406 of the Indian Penal Code, 1860 (henceforth referred to as "IPC 1860"), starting criminal proceedings against the appellant. In response, on September 25, 2017, the appellant made a triple talaq and filed for divorce at the Quzath office. The divorce was finally granted ex parte, and on September 28, 2017, the divorce certificate was issued.

Furthermore, it is said that Respondent No. 02 allegedly rejected his request to provide INR 15,000/- (Rupees Fifteen Thousand only) in exchange for maintenance throughout the iddat time. Rather, she petitioned the Family Court for interim maintenance under Section 125(1) of the CrPC 1973, and it was granted. The Appellant filed a motion with the Telangana High Court seeking the quashing of the aforementioned Order, which ultimately resulted in the issuance of the contested order, which is now dated 13.12.2023.
The Appellant's main argument in petitioning this Court is that, with the passage of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (henceforth referred to as the “1986 Act”), the provisions of Section 125 of the CrPC 1973 are superseded. "). Moreover, it is argued that even if a "divorced Muslim woman" attempted to petition the court using the secular clause of Section 125 of CrPC 1973, it would not be maintainable; instead, an application under Section 5 of the 1986 Act would have to be filed, which is not the situation in this instance.

According to the petitioner's attorney, The Muslim Women (Protection of Rights on Divorce) Act, 1986 Act ("Act") is a unique piece of beneficial legislation that offers far greater protection than what Section 125 CrPC allows. Section 3 of the Act addresses return of property, mehr, and dower in addition to maintenance. A "reasonable and fair" provision is also established under the Act for the lifetime of the divorced lady; however, Section 125 CrPC does not take this into consideration. Furthermore, under Section 125 CrPC, a divorced woman cannot seek for support if she has adequate resources; however, this is not the case under Section 3 of the Act.

(B) According to the ruling in Mohd Ahmed Khan v. Shah Bano Begum, a Muslim woman has the right to file a Section 125 CrPC petition regardless of her divorce status. The Act was passed and the Supreme Court's decision was codified in an attempt to overturn this decision. Reading the terms of the Act reveals that it was meant to supersede Section 125 CrPC, since it is a comprehensive law unto itself. Section 125 CrPC provides for Muslim women who have been abandoned or neglected, even though it offers provisions for "divorced" Muslim women.

According to the respondents' council, the Act only makes Muslim personal law more concrete. It increases a Muslim woman who has divorced her right to maintenance after the iddat period, but it does not remove the relief that she is entitled to under Section 125 CrPC, as the intentions underlying the two laws are distinct.

(B) The petitioner is misguided in relying on Section 5 of the Act since it only applies to applications submitted in accordance with Section 3 of the Act. The respondent-wife in this instance filed an application with the court according to Section 125 CrPC.

(C) The Act's Section 7 merely serves as a transitional clause. On the day the Act was enacted, any application that was pending under Section 125 CrPC was to be controlled by Section 3. That does not, however, imply that Section 125 CrPC petitions are no longer eligible to be submitted.
The petitioner gave a negative response when the Bench asked if she had made any payments to the respondent-wife throughout the iddat period. The Amicus explained that although the respondent-wife did not claim the draft of Rs. 15,000 that the petitioner had tendered during the iddat period.
Considering the aforementioned, the Bench held that it would have been reasonable had the petitioner provided for the wife throughout the iddat time; in such scenario, Section 127(3)(b) CrPC may have been applicable.

The following findings flow from the judges' concurring judgements:

a) All married women, including Muslim married women, are subject to Section 125 of the CrPC.
b) All divorced women who are not Muslims are subject to Section 125 of the CrPC.
c) With regard to Muslim women who have divorced, Section 125 of the CrPC is applicable to all such women, in addition to the remedies granted by the Special Marriage Act, for both marriages and divorces conducted under that legislation.

ii) The provisions of the 1986 Act and Section 125 of the CrPC apply to Muslim women who are married and divorced in accordance with Islamic law. Muslim women who have divorced have the choice to pursue redress under one of the two laws or under both of them. This is so because Section 125 of the CrPC is not superseded by the 1986 Act; rather, it is an addition to it.

iii) Any order issued under the provisions of the 1986 Act shall be taken into consideration under Section 127(3)(b) of the CrPC if, as defined by the 1986 Act, a divorced Muslim woman also resorts to Section 125 of the CrPC. [This implies that the Magistrate would consider any support paid to the Muslim wife under her personal law when modifying the maintenance order in accordance with Section 127(3)(b)].

A legal term known as "defamation" protects against false remarks that damage a person's or organization's reputation and undermine their moral integrity or social position.

Section 499 of the Indian Penal Code defines criminal defamation as: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.”

Three essential components make up this offence:

(1) fabricating or disseminating any false information on an individual,

 
(2) Such imputations should have been made by words or phrases spoken or written, symbols, or other visual representations;

(3) they must have been made intentionally, having knowledge or having cause to suspect that the person in question would suffer damage to their reputation.

The act of defaming someone using written or printed words, images, or any other form that may be visually represented is known as libel. The defamatory comment is usually printed in books, periodicals, newspapers, and internet platforms and permanently documented. Libellous remarks are regarded as more damaging as they are persistent. Conversely, slander happens when disparaging remarks are expressed verbally or through non-verbal cues like signals or gestures. Slanderous remarks can occur in speeches, talks, or oral remarks; they are usually fleeting. Libel is typically seen as more harmful than slanderous words because of its transient character.

There are two kinds of defamation as described in the India law as civil and criminal defamation. In contrast to criminal defamation, which is governed by statute, civil defamation law is a body of tort law that has mostly evolved from court rulings in specific situations.
Civil Defamation is the term used to describe defamation instances in which the person who was wronged brings a private lawsuit to recover damages for the damage to their reputation. It is essentially a civil law issue. In civil defamation lawsuits, the plaintiff is usually granted monetary damages, which are meant to make up for the harm they have suffered.

The primary distinctions between criminal and civil defamation are as follows:

• In contrast to criminal defamation, which carries the possibility of imprisonment, fines, or both, civil defamation penalties are restricted to damages (monetary compensation).

• Compared to criminal defamation cases, the burden of proof in civil defamation cases is less onerous.

• Although there are many similarities between criminal and civil defamation, only criminal defamation necessitates the intent or knowledge element to be established, not civil defamation.

On July 1, Delhi's Saket court convicted activist and leader of the Narmada Bachao Andolan (NBA), Medha Patkar, to five months in prison in a criminal defamation case that dates back 23 years and was brought by Vinai Kumar Saxena, the current Lieutenant Governor of Delhi.
Patkar was sued in 2001 by Saxena for allegedly defaming him in a press release headlined "true face of patriot" that was sent out on November 25, 2000. While serving as the Chief of the National Council for Civil Liberties, an NGO located in Ahmedabad, he had filed the petition.
When Patkar was the president of the National Council for Civil Liberties (NCCL), an NGO with its headquarters in Ahmedabad, Saxena had launched a defamation lawsuit against him in 2001.

In 2000, Saxena released a commercial against Patkar's NBA, a group that opposes building dams across the Narmada River. Following the publishing of the advertising, Patkar released a press statement criticising Saxena. According to the communications, Saxena was acting as an agent of the Gujarati government and was "mortgaging the people of Gujarat and their resources before Bill Gates and Wolfensohn." Saxena filed a defamation complaint against Patkar in 2001, citing her press notice, in an Ahmedabad court. However, the case was eventually moved to Delhi in 2003 under the Supreme Court's direction. Patkar was found guilty by the court on May 24 of this year.

 
Additionally, Raghav Sharma, the Metropolitan Magistrate of Saket Courts, directed Patkar to compensate Saxena with Rs 10 lakh. However, the court stated that the punishment decision would be stayed for 30 days in order to allow Patkarile to file an appeal once it was announced. The court stated in its ruling that it did not impose a disproportionate one-year or two-year sentence on the convicted Patkar due to her advanced age and health concerns. The court observed in its ruling that Patkar's stated claim that Saxena was "pained with hawala transactions" was an attempt to link him to questionable and unlawful financial activities, which seriously damaged Saxena's status and image.

Defamation according to Section 356 of Bhartiya Sakshya Adhiniyam (BSA), 2023 states that whoever either by words spoken or written, symbols or publishes any statement about another person with the knowledge or belief that the defamed statement will cause harm to the reputation of that person.

It is crucial to comprehend defamation because it strikes a balance between the right to free speech and the obligation to preserve people's reputations. Although it is okay for people to voice their thoughts, this freedom should not include disseminating false information that might harm the reputation of others. Determining whether remarks are defamatory depends critically on the motivation behind them, including whether there was a purposeful desire to cause injury or a reasonable belief.

 
Conclusion, defamation is the act of using words, signs, or visual representations to make or publish false accusations that damage the reputation of a person or institution. It includes imputations regarding departed individuals, businesses, or organizations and might take the form of straightforward assertions or sardonically phrased substitutes.

The Insolvency and Bankruptcy Code (Amendment) Bill, 2021, was a bill proposing an off-the-shelf bankruptcy resolution mechanism for micro, small and medium businesses that passed the House of Representatives.

The Union Cabinet is set to consider a series of new reforms to the Bankruptcy and Bankruptcy Code (IBC) this week, with the idea of ​​introducing legislation in the current parliament, said a person familiar with discussions within the government.

Insolvency and Bankruptcy Law: The IBBI regulator has amended rules allowing, among other things, the sale of one or more assets of a company in bankruptcy proceedings, improving market-based solutions for distressed companies.

Additionally, the Committee of Creditors (CoC) can now consider whether settlements or settlements of corporate debtors can be considered during the liquidation stage.

 The Indian Bankruptcy Board (IBBI) amended the regulations "to maximize the value of resolution" and came into force on 16th September.

By the end of June this year, up to 1,703 Corporate Insolvency Proceedings (CIRPs) had been liquidated.

In the absence of a company-wide resolution plan, the regulator has given the resolution expert and her CoC permission to consider the sale of one or more of the debtor's assets.

Tensioned asset markets and timed settlements are governed by the Insolvency and Bankruptcy Code (IBC).

The amended rule states that one or more CD (Corporate Debtor) assets must be submitted to one or more successful settlement applications who will submit a resolution plan for those assets and provide for the proper disposition of the remaining assets. A resolution plan that involves selling to a third party is also permitted.

Marketing of the corporate debtor's assets may take place. This will contribute to the broader dissemination of information to a wider and more targeted audience of potential resolution applicants due to changes in IBBI rules. Gaurav Gupte, the partner at Cyril Amarchand Mangaldas, said the change will give impetus to better market-driven solutions for bankruptcy resolution.

“This change will ensure that better information about insolvent companies and their assets is provided to the market, including potential resolution applicants, promptly,” he added.

He argues that liquidation professionals must actively seek claims from known creditors (based on the company's books) to provide a clearer picture of debt.

Details of all claims contesting the transaction will be provided to the Resolution Applicant before the submission of the Resolution Plan so that the Applicant can address the plan.

"Third, the information memorandum must contain not only information about the assets but material information that will help assess its going concern status, thereby addressing critical market needs. I have to," he added. As of the end of June this year, more than 1,703 corporate insolvency proceedings (CIRPs) have ended with liquidation orders, according to the IBBI newsletter for the April-June period.

The average duration of these procedures was 428 days.

The total amount sought in these cases was Rs 8.19 lakh while the assets themselves were only worth Rs 0.59 lakh.

Source: Xperts Legal - Best Legal Directory

Introduction:

Background:

Article 370 of the Indian Constitution established special governance arrangements for the State of Jammu and Kashmir. Constitutional Orders 272 and 273, issued during a proclamation under Article 356(1)(b), applied the entire Indian Constitution to the State, abrogating Article 370. Simultaneously, the Jammu and Kashmir Reorganisation Act 2019 bifurcated the State into two Union territories, sparking challenges to the constitutionality of these actions.

Governance Dynamics:

The State government, formed by a PDP-BJP alliance, collapsed in 2018, leading to the imposition of Governor's rule under Section 92 of the Jammu and Kashmir Constitution. Subsequently, Article 356 was invoked, promulgating President's rule with specific declarations on the State's governance functions and legislative powers.

Parliamentary Approval:

The President's rule received parliamentary approval, and on August 5, 2019, CO 272 was issued, applying all provisions of the Indian Constitution to Jammu and Kashmir. Parliament, acting as the State legislature, recommended the cessation of Article 370's clauses. The Union Territory of Jammu and Kashmir and Union Territory of Ladakh were created through the Reorganisation Act.

Operationalization:

On August 6, 2019, CO 273 under Article 370(3) rendered Article 370 inoperative. Subsequently, the Reorganisation Act came into force on October 31, 2019, leading to the bifurcation of Jammu and Kashmir. The jurisdiction of the Supreme Court was invoked through Article 32 in the case of Dr. Shah Faesal v. Union of India.

Reference and Bench Decision:

Petitions challenging CO 272 and CO 273 prompted a plea for reference to a larger bench based on conflicting views in earlier cases. The Constitution Bench, while rejecting the plea, emphasized contextual interpretation and clarified that Prem Nath Kaul did not address the continuation of Article 370 post the Constituent Assembly's dissolution.

ISSUES RAISED -

a. Whether the provisions of Article 370 were temporary or acquired permanence in the Constitution?

b. Whether the amendment to Article 367, substituting the reference to the "Constituent Assembly" with "Legislative Assembly" under Article 370(1)(d), is constitutionally valid?

c. Whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir under Article 370(1)(d)?

d. Whether the abrogation of Article 370 by the President, without a recommendation from the Constituent Assembly of Jammu and Kashmir as mandated by the proviso to Article 370(3), is constitutionally invalid?

e. Whether the proclamation of the Governor, dated June 20, 2018, and the subsequent exercise of power on November 21, 2018, to dissolve the Legislative Assembly are constitutionally valid?

f. Whether the Proclamation issued by the President under Article 356 on December 19, 2018, and the subsequent extensions are constitutionally valid?

g. Whether the Jammu and Kashmir Reorganisation Act 2019, bifurcating the State into two Union Territories, is constitutionally valid, considering the provisos to Article 3 requiring legislative views and consent?

h. Whether, during the tenure of a Proclamation under Article 356 and when the Legislative Assembly is dissolved or in suspended animation, the conversion of the status of the State of Jammu and Kashmir into a Union Territory is a valid exercise of power under Article 1(3)(a) and Article 1(3)(b) of the Constitution?

ARGUMENTS -

PETITIONERS P.O.V-

The petitioners challenge the Governor's Proclamation under Section 92 of the Constitution of Jammu and Kashmir, dated 20 June 2018, on the grounds of its asserted voidness. They assert that the requisite pre-condition, namely the Governor's satisfaction that the State government cannot function in accordance with the Constitution, was not met. The imposition of Governor's rule is deemed a political maneuver intended to ultimately abrogate Article 370. Criticism is also directed towards the successive imposition of President's rule, seen as undermining the Section 92 scheme and constituting a fraud on the constitutions, orchestrated by the Union Government, the Governor, and the President for unconstitutional ends.

The President's Proclamation under Article 356 dated 19th December 2018 is contested as void ab initio. The petitioners argue that it lacked a basis, as the Governor's report indicating the failure of constitutional machinery was not presented before Parliament, thus violating procedural norms. Emphasis is placed on the unilateral exercise of powers under Article 356 setting a dangerous precedent that could extend to other states, undermining the federal structure.

Concerning Article 370, the petitioners advocate for three modes of cooperation between the Union and Jammu and Kashmir, emphasizing autonomy, consent, and asymmetric federalism. They challenge the notion of Article 370's temporary nature, asserting it recognizes the constituent power of the people of Jammu and Kashmir, which ceased with the dissolution of the Constituent Assembly.

The petitioners further argue against the constitutionality of CO 272 under Article 370(1)(d), claiming it exceeds mere modification, improperly substitutes constitutional provisions, and violates the state's sovereignty. They contend that the Legislative Assembly lacked the power to give consent, and the application of the Indian Constitution lacked proper deliberation.

Finally, the petitioners challenge the President's concurrence in CO 272, asserting its invalidity without a functioning State Government, violating the second proviso to Article 370(1)(d). They argue that even if the President could exercise the State Government's functions under Article 356, the concurrence was a privilege, not a function, and could not be exercised by the President.

Regarding CO 273 dated 6 August 2019, the petitioners present multifaceted arguments, including its invalidity due to the issues raised against CO 272, lack of a valid recommendation from a competent body, and the destruction of the basis of Article 370 by unilaterally reneging on the compact with the people of Jammu and Kashmir.

Moving to the Reorganization Act, the petitioners argue its unconstitutionality on various grounds. They assert that the Presidential Proclamation under Article 356, which suspended provisos to Article 3, was void, rendering the suspension equally void. They contend that the Act bypassed mandatory procedures under Article 368, violated federalism, and brought permanent changes through a temporary suspension of Article 3, contrary to constitutional provisions.

Moreover, the petitioners argue that the Act degrades the state into a Union Territory, violating the principles of federalism and the qualitative difference between state reduction and Union Territory degradation. They highlight historical and cultural reasons for not retrograding an existing state into a Union Territory and emphasize that Article 3 cannot be used to supplant Article 368.

The petitioners challenge the Act's representation of the people of Jammu and Kashmir, asserting that alterations to units should come from the people concerned, not the Centre. They criticize the Rajya Sabha's lack of representativeness, and stress that changes should be initiated by the people rather than the Parliament, preserving principles of bicameralism and shared sovereignty.

RESPONDENTS P.O.V –

The Respondents present a comprehensive argument justifying the abrogation of Article 370 and the subsequent actions in relation to Jammu and Kashmir. They assert that the process of constitutional integration of Jammu and Kashmir aligns with the integration of other territories in India, emphasizing the absence of a distinct compact between the Union of India and Jammu and Kashmir. The Respondents highlight the President's discretionary power under Article 370(1)(d), emphasizing its unrestricted nature and its alignment with the overall constitutional integration process.

They contend that Article 370 was designed to aid constitutional integration, similar to other states, and challenge the perception that its prolonged application distorts its original purpose. The Respondents argue that the unique considerations of border states merit distinct treatment under Article 3 and refute the claim of infringement of asymmetrical federalism or other federal features. Additionally, they deny any deprivation of rights related to representative democracy, asserting that the abrogation brings residents of Jammu and Kashmir in line with constitutional norms.

The Respondents emphasize Article 370's temporary nature, citing historical context, drafting history, parliamentary debates, and the gradual issuance of constitutional orders. They argue that the expansive power granted under Article 370(1) is inconsistent with it being a permanent provision. The abrogation of Article 370 is presented as rectifying historical inequalities and ensuring equal rights for the residents of Jammu and Kashmir.

Moreover, the Respondents challenge the petitioners' stance on the proviso to Article 370(3), contending that its operation was linked to the existence of the Constituent Assembly. They argue that the President's unfettered power under Article 370(3) persists, even without a recommendation from the Constituent Assembly. The Respondents stress that Parliament's involvement in the decision-making process is necessary for democratic representation, especially during emergencies.

Addressing the Reorganisation Act, the Respondents argue that Article 3 provides plenary powers to Parliament, including the conversion of a state into two Union territories. They assert that the sufficiency of material for such decisions is beyond the scope of judicial review. The Respondents contend that the actions taken are in line with the intentions of the Constitution's framers and safeguard the principles of federalism.

The Respondents challenge the significance of the State Constitution, asserting that it was dependent on the Constitution of India and did not establish full sovereignty. They argue that the power of the President under Article 370(3) implies the repeal of conflicting documents, ensuring the supremacy of the Constitution of India. The Respondents present Article 35-A as exceeding the scope of Article 370(1)(d), impacting fundamental rights, and conflicting with the constitutional scheme.

FINDINGS OF JUDGEMENT/ ANALYSIS

The court makes an comprehensive analysis of the historical and constitutional aspects surrounding the accession of Jammu & Kashmir to India. The region, known as Kashmir or Kas’mira, boasts a rich cultural history, marked by influences from various civilizations and religions, including Hinduism and Islam. The political entity of Jammu & Kashmir was established through treaties and conquests, ultimately leading to Maharaja Hari Singh's accession to India in 1947 amid complex circumstances, including tribal invasion and the Instrument of Accession (IoA).

The IoA, executed on October 26, 1947, outlined the terms of accession, with specific conditions accepted by Lord Mountbatten. This paved the way for the introduction of Article 370 in the Indian Constitution on October 17, 1949, reflecting the unique status of Jammu & Kashmir. Drafted by Gopalaswami Ayyangar in consultation with Sheikh Abdullah, Article 370 granted autonomy to the state, limiting legislative powers to the Indian Parliament on specified matters.

The Constituent Assembly of the State of Jammu & Kashmir played a crucial role in accepting the new Constitution of India on November 25, 1949, making Article 370 an integral part of the Constitution. The subsequent constitutional developments, including constitutional orders such as C.O. 10 and C.O. 48, specified the extent of constitutional provisions applicable to Jammu & Kashmir. The state also adopted its constitution in 1957, emphasizing its integral part of the Union with special provisions.

The relationship between Jammu & Kashmir and the Union underwent further changes, marked by events such as the Delhi Agreement of 1952, the dismissal of Sheikh Abdullah in 1953, and the introduction of Article 356 in 1964. The political landscape witnessed the Kashmir Accord of 1975, affirming the applicability of Article 370 and the retention of residuary powers by the state.

The historical and legal narrative presented outlines the complex developments in the relationship between Jammu & Kashmir and the Union of India, involving instruments of accession, constitutional provisions, and political agreements. The political history of Jammu & Kashmir is characterized by periods of stability and upheaval, with the 1980s witnessing increased fundamentalism and the mass exodus of the Kashmiri Pandit community.

The legal context of the current situation involves events leading up to the August 2019 parliamentary enactments. The reorganization of Jammu & Kashmir into two Union Territories on August 5, 2019, accompanied by resolutions in both houses of Parliament, is challenged for its constitutional validity. The petitioners argue that Article 370 was effectively emasculated without formal abolition through a constitutional amendment.

A series of writ petitions challenge various state actions, with oral submissions covering historical and constitutional aspects. The debates revolve around the perceived permanence of Article 370, legislative power, and the conditional nature of the President's power under Article 370(3). The legal arguments also address the alleged incompetence and mala fide nature of executive orders, emphasizing constitutional values, democracy, and federalism.

The core issue centers on altering the state's status to a Union Territory, with arguments questioning the constitutionality of such actions. The respondents present a constitutional defense, asserting that the integration of Jammu & Kashmir into the Union was complete, leaving no vestige of separate sovereignty. They argue that Article 370 never intended to be permanent and was a mechanism for gradual alignment with the rest of the country.

FINAL JUDMENT UPHELD-

The court, having conducted a comprehensive analysis, delivers a nuanced judgment on the constitutional changes in Jammu & Kashmir. The court affirms the constitutional validity of certain actions while subjecting others to scrutiny. It acknowledges the unique circumstances surrounding Jammu & Kashmir's integration into India, recognizing the legality of the Instrument of Accession and subsequent developments. The court underscores the temporary nature of Article 370, emphasizing its role as a transitional provision facilitating the gradual alignment of the state with the rest of the country.

In particular, the court scrutinizes Constitutional Order 272 (C.O. 272) issued on August 5, 2019, which extended the entire Indian Constitution to Jammu and Kashmir. While acknowledging the President's power under Article 370(3), the court deems the modification under C.O. 272, especially the addition of Article 367(4)(d), an improper amendment of Article 370(3). The court rejects arguments necessitating concurrence from the state government, asserting the President's unilateral authority to de-operationalize Article 370 after the Constituent Assembly's dissolution.

In addressing the constitutional defense presented by the respondents, the court acknowledges the completion of Jammu & Kashmir's integration into the Union. It highlights the transient nature of Article 370, asserting that its intention was never permanence but a gradual alignment with the rest of the country. The court interprets Article 370(3) as a 'safety valve,' allowing the President to act when the anticipated political compromise in Article 370(1) fails.

The court also examines the constitutionality of the Reorganization Act, upholding Parliament's authority under Article 3 to alter or extinguish a State. It addresses the suspension of the first proviso to Article 3 during President's rule, deeming it permissible in the absence of a functioning state legislature.