The Supreme Court, which is seized of a PIL seeking reinvestigation into Mahatma Gandhi's assassination, has been told that the two alleged conspirators -- Nathuram Godse and Narayan Dattatraya Apte -- were hanged on November 15, 1949, 71 days before the Supreme Court of India came into existence on January 26, 1950.
In an affidavit, Mumbai-based Dr Pankaj Phadnis, a trustee of charitable trust Abhinav Bharat, has countered the report of senior advocate Amarender Sharan, who is amicus curiae in the matter, has not supported his plea to reopen the investigation into Mahatma Gandhi's death.
Mahatma Gandhi was assassinated on January 30, 1948 at Birla House in Lutyens' Delhi.
The petitioner said both Godse and Apte were hanged after the High Court of East Punjab confirmed their death sentences on June 21, 1949. But the Privy Council did not grant permission to their families to file an appeal on the ground that it would not have been decided before January 26, 1950 when the Indian Supreme Court was to be born, he claimed.
Mr Phadnis, in his reply to the report of the amicus curiae, referred to lawyer Rajan Jayakar, who studied the original records of the trial while curating an exhibition to mark the Supreme Court of India's golden jubilee in 2000.
He quoted Mr Jayakar as saying "the privy council was part of the British Parliament. While appeals from England were heard by the House of Lords, those from British colonies were heard by the judicial commission of the Privy Council."
During the British rule, Privy Council was the highest court of appeal in India, which was later known as the Federal Court of Appeal. After the replacement of the Federal Court with the Supreme Court of India in January 1950, the Abolition of Privy Council Jurisdiction Act 1949 came into effect.
Mr Phadnis said "on October 26, 1949, the Privy Council did not grant leave (permission to file the petition) to the families of the accused, including Godse, who had filed the SLP.
"They had refused to grant leave on the ground that even if they did admit the petition, it would not have been decided before January 26, 1950 when the Indian Supreme Court was to be born. Once the Supreme Court of India came into existence, the jurisdiction to hear the SLP would lie with it."
To support his contention, Mr Phadnis referred to the Supreme Court's 2017 judgement in the December 22, 2000 Red Fort attack case in which it was held that an open court hearing is mandatory even at a review stage in cases where death penalty has been awarded.
"Let alone an Open Court hearing, Narayan Dattatraya Apte, accused no. 2, who claimed to be innocent, was not even left alive for 71 days to be able to reach the doorstep of this Hon'ble (Supreme) Court," he said in the affidavit.
Mr Phadnis, who gave point-wise reply to counter the amicus curiae's report, said the State of Dominion of India chose to refuse to allow the Supreme Court of India to adjudicate the matter of murder of Mahatma Gandhi.
"It (Dominion of India) ought to have waited for the Supreme Court of India to come into existence, which event was scheduled to happen within just three months of the decision of the Privy Council on October 26, 1949. In an act of indecent haste which raises suspicions, the State of Dominion of India hanged Godse and Apte on November 15, 1949," it said.
The affidavit said Godse and Apte were two very different individuals. "Godse had confessed to his crime. His hanging may have been irregular but not illegal. The hanging of Apte, when he was claiming to be innocent and had a legal right to have his claim of innocence adjudicated by the Supreme Court of India, was definitely illegal," it said, adding that "this illegal hanging had material consequences for minor innocent children of Apte."
The researcher said the mentally-challenged son of Apte is said to have died within a year of his hanging and his one-year-old daughter is said to have not survived her childhood.
"The blame for untimely death of these two minor innocent defenceless children must surely lie on the Respondent, who illegally killed their father. They were murdered as surely by the Respondent as was the Mahatma by Godse," it said.
Mr Phadnis stressed that Mahatma Gandhi's case was a fit case for invocation of the extraordinary powers of the top court under Article 142 of the Constitution to bring about a final legal closure by posthumously adjudicating the claim of innocence of Apte.