Friday, February 28, 2014

Willful violation and Contempt proceedings

The Supreme Court has sent out a loud message that unconditional apology after willful violation of its orders will not entitle those facing contempt proceedings to any mercy. 

Making an example of a medical college in Madhya Pradesh run by Suresh Narayan Vijayvargiya for admitting 107 more students in MBBS course than what was permitted by the court, a bench of Justices B S Chauhan, K S Radhakrishnan and S A Bobde imposed a fine of Rs 50 lakh on the contemnors. 

Adding to the misery, the bench ordered that the excess seats filled by the medical college would be counted against its quota for the academic years 2014-15 and 2015-16, thus substantially reducing the intake of students for the next two years. 

The medical college and its management took various pleas but tendered unconditional apology when they walked into a dead end in the contempt proceedings initiated on a petition by the state government and the director of medical education department. 

The bench said the contemnors tendered unconditional and unqualified apology and volunteered to set right the illegality committed by them after achieving the purpose -filling up all the seats by themselves. 

Writing the judgment for the bench, Justice Radhakrishnan said, "It is trite law that apology is neither a weapon of defence to purge the guilty of their offence; nor is it intended to operate as universal panacea, it is intended to be evidence of real contriteness. To maintain sanctity of the orders of this court and to give a message that the parties cannot get away by merely tendering an unconditional and unqualified apology after enjoying the fruits of their illegality, we are inclined to impose a fine, which we quantify at Rs 50 lakh." 

Deciding to deal sternly with those willfully violating court orders, the bench said, "Disobedience of an order of the court, which is willful, shakes the very foundation of the judicial system and can erode the faith and confidence reposed by the people in the judiciary and undermines rule of law. Once the court passes an order, the parties to the proceedings before the court cannot avoid implementation of that order by seeking refuse under any statutory rule and it is not open to the parties to go behind the order and truncate the effect of those orders." 

The medical college and its management had taken a stand that since they had become subject to Private Universities Act, the state government's Admission and Fee Regulatory Committee Act would not apply to restrict the admission of students. 

The bench rejected this argument. It said, "Once there is an order in force binding the parties, they cannot violate or ignore that order, taking shelter under a statutory provision and if any modification of the order is warranted, parties should have approached this court and sought clarification or modification of those orders. However, without doing so, in total defiance of the orders passed by this court, they filled up the entire seats, leaving the students who figured in the state list in the lurch."

Thursday, February 27, 2014

Rajiv Gandhi assassination case: SC stays release of 4 convicts

The Supreme Court on Thursday stayed the release of four convicts in the Rajiv Gandhi assassination case, ordering status quo on a plea by the Centre challenging the Tamil Nadu government's proposal to release them.

The court bench headed by Justice P Sathasivam directed that the central government's plea would be heard on March 6. The court also issued notice to the state government and the four prisoners on the Centre's plea against their release.

It asked as to why the Centre rushed to the apex court instead of replying to the state government's letter seeking the stand of the Union government on the release of the prisoners.

"Is the Centre rushing or you are rushing?," the bench questioned the state government and made it clear that it will first consider the maintainability of the Centre's petition before going into its merits.

"You take it from us that we would consider the maintainability issue first," it said, adding,"We would solve the problem amicably."

The bench said that every state must be aware about the procedure to be followed for the release of prisoners.

Tuesday, February 25, 2014

Fatwas have no legal backing, can't be forced on people: SC

 The Supreme Court on Tuesday assured it would come to the rescue of any citizen who felt harassed by a fatwa issued by a Muslim cleric and said such fatwas had no sanction in law.

A bench of Justices C K Prasad and P C Ghose made it clear that the judiciary could redress a fatwa while hearing final arguments on a PIL by Vishwa Lochan Madan, drawing the court's attention to parallel Shariat courts that were mushrooming in India. Madan sought a declaration that such fatwas were illegal.

The bench said fatwas and dictates by muftis had no sanction in law. "Anything not sanctioned by the law need not be taken cognizance by anyone. The muftis can take up any issue and dictate a fatwa. But this will be akin to any common man's view on an issue," it said.

The court's observations have implications for other informal pressure groups like khaps that have issued diktats that range from imposing social boycott to handing out death sentences for marriages within the same gotra or clan.

When Madan complained that poor and uneducated Muslims were forced to obey fatwas, the bench said, "If someone suffers because of a fatwa, be sure we will come to the rescue of the sufferer."

The court said there were fatwas which could also be for general good of the community. However, it was firm that under the constitutional scheme of things, nobody was bound by the fatwas.

It said Hindus too had Shankaracharyas, Mandaleswars and Mahamandaleswars. "There are followers who obey their directions. But can it have any legal sanctity," it asked.

"If someone voluntarily follows the fatwas or directions of the religious figures, it is purely up to them. But can these dictates, fatwa or religious head's directions, be enforced in a court of law? If someone is punished for not obeying the fatwa, then the judiciary is there to set right that wrong," the bench said.

The All India Muslim Personal Law Board through senior advocate Raju Ramachandran shared the views of the bench and said it was purely voluntary for the believers to obey a fatwa.

"When a Muslim or a non-Muslim approaches a mufti with a problem, the mufti looks into the issue taking help of the Shariat law and issues a fatwa. But a mufti does not verify the correctness of the facts stated before him by the person who approaches him. A fatwa can cover all aspects of life, from hygiene to marital disputes. A mufti has no power to impose his fatwa on anyone. Even the seeker of advice can ignore the fatwa," he said.

AIMPLB also said if a fatwa violated the fundamental right of anyone, then the doors of the court were always open to seek redress.

Saturday, February 15, 2014

Gujarat HC acquits man falsely implicated by dying wife

Gujarat high court on Friday acquitted a man who was sentenced to life imprisonment for murder on the basis of his wife's dying declaration. This declaration, the court said, was made with revenge in mind as the husband was reluctant to divorce his wife.

Khimiben Pawar died of burn injuries on August 21, 2007 in Gondal Vihar village of Navsari district. Her husband, Raman Pawar, was arrested for murder after his wife claimed in her dying declaration that her husband, who was drunk, had poured kerosene on her and lit a matchstick. A sessions court had convicted Raman Pawar to life imprisonment in November but he questioned the conviction before the high court.

During the hearing in the high court, Pawar's advocate Pratik Barot submitted that the wife was asking for a divorce but Pawar was reluctant because the couple had four children. He highlighted discrepancies in the collected evidence, particularly the dying declaration that was recorded by the executive magistrate but did not have a doctor's endorsement. The family was from Maharashtra and Khimiben did not know Gujarati but the dying declaration was in Gujarati. There was no evidence that it was translated and read out and explained to the victim, the lawyer told the court.

The wife had claimed in her dying declaration that their two children were sent to a neighbour's house to watch TV but the neighbour had turned them away. It came on record that the kids were sent out by the woman herself. The police did not present documents that showed that Pawar had sustained burn injuries while trying to save his wife.

After the proceeding, the high court came to the conclusion that the woman had set herself on fire and falsely implicated her husband, said the lawyer. It observed that in most cases, dying declarations are true as dying people do not have a reason to lie. But in this case, it seemed the woman wanted to frame her husband.

Thursday, February 6, 2014

Picture of nude woman per se not obscene: SC

Giving a contemporary interpretation to the 154-year-old 'obscenity' provision in Indian Penal Code, the Supreme Court has ruled that a woman's nude picture in a publication could not per se be termed obscene under IPC or Indecent Representation of Women (Prohibition) Act, 1986. 

"A picture of a nude or semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse the feeling or revealing an overt sexual desire," ruled a bench of Justices K S Radhakrishnan and A K Sikri. 

The bench struck down the prosecution initiated against two publications for re-publishing an article with a picture of renowned tennis player Boris Becker posing nude with his dark-skinned film actress fiancee Barbara Feltus, originally published by German magazine 'Stern' in 1993. The photograph was taken by the actress' father and it was meant to portray Becker as a strident protester of "apartheid". 

Justice Radhakrishnan, who authored the judgment, said while judging whether an article or book was obscene, the courts must keep in mind the "contemporary more and national standards and not the standard of a group of susceptible or sensitive persons". 

"The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted," the bench said. 

"Only those sex-related materials which have a tendency of exciting lustful thoughts can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards," the court said, reminding the courts that in this case "we are in 2014 and not in 1994". 

Till now, a UK court's Hicklin Test, laid down way back in 1868, held the field in determining what constituted obscenity. The UK court had said, "The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." 

Rejecting the 146-year-old test, Justices Radhakrishnan and Sikri said, "We are of the view that Hicklin Test is not the correct test to be applied to determine 'what is obscenity'... We have to apply the 'community standard test' rather than 'Hicklin Test' to determine what is obscenity." 

Quashing the prosecution initiated against a sports magazine and a daily by a Kolkata court on the complaint of an advocate, the bench said, "Applying the community standard test we are not prepared to say such a photograph is suggestive of depraved minds and designed to excite sexual passion in persons who are likely to look at them and see them. 

"Breast of Barbara Feltus has been fully covered with the arm of Boris Becker... a photograph, of course semi-nude but taken by none other than father of Barbara. The photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine or the daily would fall. 

"We may indicate that the said picture has to be viewed in the background in which it was shown, and the message it has to convey to the public and the world at large... The message the photograph wants to convey is that the colour of the skin matters little, and love champions over colour. The picture promotes love affair, leading to a marriage, between a white-skinned man and a black-skinned woman." 

The Supreme Court regretted the prosecution proceedings initiated by the magistrate without proper application of mind or appreciation of background in which the photograph has been shown.

Domestic violence Act is basically civil law -HC

In an important decision, Gujarat high court has ruled that it cannot quash a complaint filed under the Protection of Women From Domestic Violence Act, 2005 under the law by which it cancels ordinary FIRs filed by police.

Rejecting a petition that demanded quashing of one such complaint filed under DV Act, the high court has made some important observations on whether word 'domestic violence' means criminal act or not. This Act is essentially a civil law, but the legislation has prescribed that courts have to proceed in such cases as per the Criminal Procedure Code (CrPC) for the purpose of effective actions. It added that this law is meant to protect women's civil rights also.

The court has said that DV Act is not meant to punish those against whom women file complaint. The only exception in this is the violation of court orders under section 31 of the law - about protection of complainant and sharing of accommodation or other directions. The court said, "It cannot be said that word 'domestic violence' as defined in Section 3 of DV Act constitute an offence under DV Act so as to attract section 4(2) of CrPC."

The court order further said, "Therefore, though the expression 'violence' connotes criminality referable to criminal mindset, the object of act being to assist the aggrieved person suffering from domestic violence by providing to her various reliefs as above and the act of domestic violence not being punishable under DV Act, it cannot be said that mere use of expression 'violence' would render the applications under Sections 12, 17 to 4 of the DV Act as criminal proceedings. The fact that the civil remedies are provided to aggrieved person is also made eloquent by objects and reasons of this law as well."

The high court has also observed that the legislation has left it to the concerned criminal court and to the judicial officers to decide whether the complaint made by women reveals criminal action by her family members. It is left to the judicial magistrate to decide whether to invoke Indian Penal Code and charge the respondents on basis of the complaint filed under the DV Act.

HC stays sealing of Rajkot stadium

Gujarat high court on Wednesday restrained Khanderi gram panchayat near Rajkot from sealing the newly built cricket stadium after the Saurashtra Cricket Association (SCA) questioned the civic body's bid to collect tax.

A division bench has sought reply form the village body and ordered status quo after SCA filed a petition against Khanderi gram panchayat's warning that it would seal the stadium in case SCA failed to pay Rs 1.20 crore towards property tax for the last two years.

SCA's lawyers contended that SCA is a charitable organization and the stadium is not constructed for commercial activity. They also argued that the gram panchayat has not followed any rules that are prescribed under the taxation laws, neither the association has been given time to explain the point that it is actually exempted from paying such taxes.

Monday, February 3, 2014

Gujarat high court notice to politician over encroachment

AHMEDABAD: It takes filing of a PIL in Gujarat high court to remove encroachments in streets by top politicians in Porbandar. Two such PILs have been filed in the court complaining that authorities do not act against encroachment made by political heavyweights.

The HC has issued notice to Congress leader Arjun Modhwadia after one Prakash Unadkat moved the court complaining that concerned authorities did not take any action against encroachment made on a street near the politician's house.

The petitioner has sought direction to the civic authorities and collector to remove the construction allegedly put up by Modhwadia that blocks a public street.

After seeking replies from the politician, his brother and concerned authorities regarding the complaint, the court has kept further hearing on February 6.

Saturday, February 1, 2014

CBI court to shift to Gandhinagar

Encounter and post Godhra riot related cases being investigated by the Central Bureau of Investigation (CBI) the state government has agreed to shift the special CBI court to Gandhinagar. The CBI has been operating from its sector-10 office in the capital city for many years.

The decision to shift the venue was taken after the investigating body expressed several logistic inconveniences of taking the accused to court and then for questioning. The new CBI courts will be located at the Gandhinagar district court premises .

Important fake encounter cases -Sadiq Jamal, Ishrat Jahan-and the special investigating team ( SIT) function from the Gandhinagar office. "An accused if caught has to be taken to Ahmedabad for remand. This was getting cumbersome and that is why the CBI approached us," says a senior law department official. The CBI's court will be shifted to the district court premises in sector-11 of the city.

Gujarat high court for Aadhar centres in prisons

AHMEDABAD: Gujarat high court has issued notices to secretaries of home and revenue departments for creating a mechanism in jails so that inmates can be issued Aadhar cards. This was in response to an application filed by a prisoner's wife, seeking his release for a few days to apply for the card.

A division bench admitted the application and sought reply from secretaries concerned and also issued a notice to the gas agency. The judges said, "Secretary, home department and secretary, revenue department, should undertake any mechanism for preparation of Aadhaar card of the convicts and undertrial prisoners. If such a mechanism is permitted, it will enable the prisoner to avail legitimate benefits as a citizen of India, may be inside the jail or even outside the jail."