Saturday, December 29, 2018

Uttarakhand HC directs Ramdev's company to share profits with locals

The high court gave the order while rejecting a petition of Divya Pharmacy against the Uttarakhand Biodiversity Board (UBB).
Previously the UBB had directed the pharmacy to share the amount with the farmers and local communities out of its profit as per the Biological Diversity Act.

In a first-of-its-kind order, the Uttarakhand high court has directed a company run by Yoga guru Ramdev to share a percentage of its profits with local farmers and communities.

The high court gave the order while rejecting a petition of Divya Pharmacy against the Uttarakhand Biodiversity Board (UBB) and upholding the provisions of fair and equitable benefit-sharing as provided under the Biological Diversity Act, 2002.

The bench of Justice Sudhanshu Dhulia held that it was a fact that biological resources constitute the main ingredient and raw materials in the manufacture of ayurvedic and nutraceutical products. It ordered the pharmacy to share Rs 2 crore out of its Rs 421-crore profit with the farmers of the raw product.

Previously the UBB had directed the pharmacy to share the amount with the farmers and local communities out of its profit as per the Biological Diversity Act. The pharmacy had claimed that the UBB neither had the powers nor jurisdiction to pass such an order and it was not liable to pay or make any kind of contribution.

The court held that India was a party to the United Nations Convention on Biological Diversity and the country was under an obligation to give effect to the provisions of the treaty.

The court said the UBB was within rights to pass the order demanding the amount, as the biological resources were not only a national property, but also belong to the communities which produce these.

Friday, December 28, 2018

Insulting By Using Abusive Language Will Not, By Itself, Constitute Abetment Of Suicide

There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide.”
The Supreme Court observed that an act of insulting a person by using abusive language will not, by itself, constitute the abetment of suicide.
Allowing the appeal filed by a man convicted for abetting suicide, the bench comprising of Justice R Banumathi and Justice Indira Banerjee observed that there should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide.
In this case, the accused Arjunan had advanced a sum of Rs.80, 000 by way of debt to Rajagopal. According to the prosecution, due to the alleged torture by the accused, Rajagopal committed suicide leaving a suicide note stating that he was unable to repay the loan and was taking the extreme step. The trial court convicted the accused and sentenced him to undergo rigorous imprisonment for three years.
Referring to Section 306 of the Indian Penal Code, the bench, on an appeal filed by the accused, said: “The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C.”
The bench then observed that would not be sufficient to establish that the suicide by the deceased was directly linked to the instigation or abetment by the accused.
Setting aside the conviction, the court further observed: “Having advanced the money to the deceased, the appellant-accused might have uttered some abusive words; but that by itself is not sufficient to constitute the offence under Section 306 I.P.C. From the evidence brought on record and in the facts and circumstances of the case, in our view the ingredients of Section 306 I.P.C. are not established and the conviction of the appellant-accused under Section 306 I.P.C. cannot be sustained.”

Thursday, December 27, 2018

Bombay HC stands by woman’s maintenance right

In a significant order, the Bombay high court has held that a woman’s right to maintenance cannot be done away with even if she had had specifically waived off such a right in an earlier agreement with her husband. In the judgement pronounced recently, Justice MS Sonak said, “There are several rulings, which take the view that an agreement, in which the wife gives up or relinquishes her right to claim maintenance at any time in the future, is opposed to public policy and, therefore, such an agreement, even if voluntarily entered, is not enforceable.” The HC in its judgment cited observations of another such ruling which said that the statutory right of a wife for maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary.
In the judgment, the HC dismissed the writ petition submitted by man who said that his former wife’s application seeking maintenance be dismissed since she had specifically waived her right to it in the consent terms for divorce. The woman had moved the maintenance plea before a magistrate court in 2010. The man sought a dismissal of the plea and cited the consent terms.On October 13, 2011, the court rejected the man’s application. He then challenged it before a sessions court which too rejected his plea. In 2016, the man submitted write petition before the HC.
The HC has also directed the magistrate to dispose of the woman’s application for maintenance in accordance with law and on its own merits. The court said that it was to be decided as expeditiously as possible and, in any case, within a year.
The woman had earlier told the HC that in 2009 she had filed the divorce petition. It was further stated that the court referred the couple for mediation where they reached a compromise on October 27, 2010.

HC notice to prosecutor who ‘slapped’ judge

The Bombay High Court has taken suo motu (on its own) notice of an incident where a sessions court judge was allegedly assaulted by an assistant public prosecutor on the court premises.
Vacation judge Justice R K Deshpande of the high court's Nagpur bench said Wednesday that such incidents are a "threat to the independence of the judiciary".
Assistant public prosecutor Dinesh Parate allegedly slapped senior civil judge K R Deshpande outside a lift on the seventh floor of the Nagpur District and Sessions court around noon Wednesday.
According to the police, the lawyer was miffed over the judge's decision in a case.
Parate tried to run away after the incident but was caught by the police personnel present there.
Justice Deshpande of the high court noted in his order that it was a serious matter where personal security of a judge was under threat. PTI

Ban ‘barbarous’ practice of ragging, Gujarat HC tells state govt

Upholds IITRAM’s Punishment For 25 Students

The Gujarat high court has termed ragging in education institutes as a “barbarous practice” and called for banning it. It told the state government to enact a law like few other states have done, making it a cognizable offence.
The high court quoted ancient texts eulogizing “lofty ideals” of education in the Indian tradition and condemned ragging as means “to satiate sadistic instincts”. The court said: “Students get mental shock and depression by ragging and there are instances of the victims of ragging committing suicide.”
Justice J B Pardiwala observed, “Ragging is a barbarous practice and should be totally banned. If anybody is found guilty of ragging, he shall be immediately expelled from the institution and shall be debarred from entering any other educational institution thereafter.”
The court said that ragging originated from foreign shores and was “imported” to India and has been in vogue for the past few decades, especially in professional colleges and hostels.
“It causes deep sorrow and anguish that in a country which had very lofty university ideals expounded in the Vedas this shameful and disgusting evil of ragging degenerating into bestiality should come to stay in the educational institutions, which are intended for imparting knowledge to future rulers of this country,” the court said.
The HC so observed while rejecting a petition filed by a student from Institute of Infrastructure, Technology, Research and Management (IITRAM), who along with 25 other students, was suspended for a year and expelled from the hostel permanently for ragging students of a new batch on September 25.
Justice Pardiwala refused to interfere with IITRAM’s order suspending the student and upheld the institute’s disciplinary action. He said that if the student has any remorse for his conduct, he may express his regret and seek forgiveness from the new students.
It is up to the institute and victim-students to pardon him, he said.
The HC quoted Taittiriyopanishad and Tiruvalluvar to say that academic traditions in India laid down rules for the good behaviour of a student so that he can have “able and active body, sweet tongue and listen abundantly through his ears and learn”.
After citing ancient texts, the court lamented the recent phenomenon of ragging.
“How can anyone conceive of more ennobling thoughts and better ideals than that prevailed in our ancient universities?” the court said. “But alas! what a fall from that high peak of virtuous principles to the murky depths of a dirty mire named ‘ragging’. Any person with a little sense of decency would abhor even to think of indulging in it.”

Court insists on the need for law

The high court said that a number of states have enacted laws making ragging a cognizable offence and prescribing the types of punishment to be awarded. “Why is there no such legislation in the State of Gujarat? It is high time that such legislation was passed by the legislature of Gujarat also,” the court said and expressed hope that the government will take steps to bring about legislation preventing ragging and making it a cognizable offence.

Transgenders can file sex abuse case: Delhi Police to HC

Delhi Police has clarified before the high court that criminal law provisions relating to sexual harassment can be invoked by transgender persons. The police commissioner informed a bench that now when a transgender person files a complaint under Section 354A of the IPC, police will register a case where a cognisable offence is made out. The statement last week was in response to the HC asking it earlier to answer allegations levelled by a transgender person that they had not lodged an FIR despite complaints.

The police commissioner informed a bench comprising Justices Siddharth Mridul and Sangita Dhingra Sehgal that now, when a transgender person files a complaint under Section 354A of the Indian Penal Code, the police will register a case where a cognisable offence is made out.
The police statement last week was in response to the HC asking it earlier to answer allegations levelled by a transgender person that they had not lodged an FIR despite her complaints of sexual harassment.
In a plea filed in court, the transgender challenged the constitutional validity of clauses (i), (ii) and
(iv) of sub-section (1) of Section 354A of the IPC to the extent that these clauses were being interpreted by police to exclude transgender victims of sexual harassment.
The transgender petitioner claimed she had been sexually harassed by male students on her college campus but, when she complained to the police, no FIR was lodged. Instead, she said, she was informed by officials that no criminal case could be registered.
Entertaining her plea, the court had initially sought a response from the police and the Centre as the matter concerned a challenge to the constitutional validity of a provision.

However, when the authorities failed to specify their stand despite being given a chance by the court, the HC gave the state the last chance, indicating that otherwise, it may pass orders.

Wednesday, December 26, 2018

Gujarat Govt to ban school buses plying at night

In the wake of the horrific bus accidents that left 11 people dead and several others injured, the state government on Wednesday banned school buses from plying during the night. Deputy chief minister Nitin Patel said that both the accidents involving school buses had taken place at night.
“To prevent such mishaps and untoward incidents henceforth, we have decided to bar school buses from plying between 11pm and 6am, with children on board. The decision has been taken by the state government in the interest of safety of the children,” Patel said.
“Bus operators must stop plying during this time and instead make arrangements for accommodation for children,” he added.
Well-placed sources confirmed that the state government will soon issue guidelines to implement the same.
The move however, has invited mixed reviews in academic circles.
“Student picnics have become a tool for generating revenue for schools, who charge anywhere between Rs 2,000 to Rs 5,000 for a 2-3 day trip. While night travel is preferred to help save the academic working day of the kids, the government decision is in students’ interest. Restrictions are also needed on luxury buses getting overloaded especially during school picnics,” said an academician on condition of anonymity.

Anaesthesia blunder confines woman to bed for nine years

Court Orders ₹32L Compensation For Negligence

Shraddha Shah, 32, was nursing dreams of motherhood when she was wheeled into the OT for cesarean section in 2009. She came out in a comatose state, never able to nurse her son and caress her elder daughter. Nine years later, the meaning of term ‘medical negligence’ comes to life as one watches Shraddha struggle with her life confined to a bed in a room. Never able to come out of the anesthesia dose, Shraddha remains paralysed having no ability to sit or stand.
Her crippled hands and legs twist out of exhaustion as her brother feeds her. Her incomprehensible blabber can only be decoded by her caretakers In an order on December 19, the Gujarat State Consumer Dispute redressal Commission acknowledged this life interrupted as it ordered two local doctors to pay a compensation of Rs 32 lakh for their carelessness and negligence. The court also came down heavily on doctors for “commercialization of profession”.
The commission ordered gynecologist Dr Nilesh Trivedi and anesthetist Dr Himanshu Patel to compensate now 41-year old Shraddha from Odhav area who became a cripple after incomplete reversal from anesthesia administered during surgery during childbirth.

Tuesday, December 25, 2018

Can’t disclose info on phone tapping, Trai tells Delhi HC

The Trai, India’s telecom regulator, has challenged in the Delhi high court an order asking it to provide information to consumers on phone tapping of their mobile numbers by government agencies.

A bench of Chief Justice Rajendra Menon and Justice V K Rao, however, didn’t stay the order while issuing a notice to the RTI applicant, Kabir Shankar Bose, a Supreme Court lawyer, on whose plea the Central Information Commission (CIC) first asked the Trai to reveal information.
In an appeal against the original high court order, the Trai invoked the security of the country to argue it cannot access information on phone tapping. Assailing the interim order of a single judge, Trai said it cannot disclose such details as it could affect the sovereignty and integrity of the country and that phone tapping was carried out by law enforcement agencies.
Challenging a CIC order, which said the telecom regulator has powers to find out from service providers which mobile user’s phone is being tapped, Trai said it can’t access the information from private service providers.

The CIC’s decision was upheld by a single judge HC bench on December 7 saying that Trai has the obligation to get the information from the private body and furnish it to the service subscriber. Trai has, in its appeal, sought the quashing of both orders.
The HC agreed to examine the appeal, but did not stay the earlier order after the lawyers for the RTI applicant assured the bench that Bose won’t push for contempt proceedings against Trai till the time the appeal is pending.

The bench then issued notice to Bose, and asked him to indicate his stand on the plea by the telecom regulator by January 16, 2019, the next date of hearing.

The telecom regulator said that directions for interception of a phone number are issued only by government officials of certain ranks and such information cannot be collated by it or furnished to a consumer, as it would “prejudicially affect the sovereignty and integrity of the nation”.
It has also contended that such information, pertaining to security of the nation, is exempt from disclosure under the Right to Information Act.

Monday, December 24, 2018

‘Malls can’t charge parking fee’ Gujarat Govt's say in Gujarat HC

The state government and the Ahmedabad Municipal Corporation (AMC) have told Gujarat high court that malls and multiplexes do not have any power to collect parking charges from visitors.
In response to the queries posed by the HC, the civic body and the state government’s town planning and valuation department said that under the provisions of Gujarat Provincial Municipal Corporation (GPMC) Act and the Comprehensive General Development Control Regulations (CGDCR), commercial buildings are not empowered to charge parking fees from visitors of premises.

The senior town planner submitted that the parking facility is to be made available as stipulated under the CGDCR rules, which are in consonance with the use of the building. Ruchi Malls’ building is categorized as mercantile and hence it is required to provide minimum 20% of required parking as visitors’ parking.

The HC was also informed that when appellant Ruchi Malls Pvt Ltd’s mall at Vastrapur was constructed, the authorities granted BU permission after ensuring that 30% space was reserved for parking and 20% space was spared for parking for visitors. The recently amended rules now provide for 50% space for parking.
It was emphasized that the mall owners are under obligation to provide ample parking space to visitors. They are required to allocate 50% of required visitors’ parking at ground level and 50% of all required parking for cars.

The appeal was filed by Ruchi Malls after the high court ordered for all malls and multiplexes to provide free parking facility to visitors for the first hour.

Mumbai Landlord held for secretly filming PG girls

A 47-year-old landlord was arrested by the DB Marg police station for allegedly installing a hidden camera inside the room of three girls who were staying as paying guests in his 4-bedroom upmarket apartment in south Mumbai.

The DB Marg police arrested the landlord on December 19 under various IPC sections for outraging the modesty of a woman and the Information Technology (IT) Act. He was remanded in police custody. Police said the Girgaum metropolitan magistrate granted him bail on December 22 on certain conditions. Police said that the accused, who stays with his elderly parents, is unmarried and has a business of trading in gift boxes.

Police have seized the hidden camera which was in one of the adapters of his high-end mobile phone. He had recorded and stored several videos as well as audio clippings of his paying guests.
According to police, the accused was caught after he started repeating the conversation of these girls exactly the way they had said. “Initially, the girls thought that the accused may be overhearing their talk.

‘Footage dates back to nearly a year & a half’

One of the girls found an electric adapter fitted in their room. That raised her suspicion and she put a piece of cloth over it. The accused immediately came to the girls’ room under the pretext of checking it and asked the girls as to why they had covered it up,’’ said an officer.
Police said that the accused then told them that the adapter was an antenna booster for his TV. It was then that the girls clicked a picture of the adapter and searched the internet—only to find it was a hidden camera available for sale online. They approached DB Marg police and lodged a complaint. Police said that they are probing whether the accused has shared the videos of these girls with others and whether he has filmed paying guests earlier. Sources said the footage dates back to nearly a year and a half.

A senior police official said they would ensure the girls’ identity would be protected. “These guys will be emboldened further if not checked early,” he added.
“Section 66E of the IT Act will apply to the facts of the case. This section punishes a violation of a person’s privacy,” 

“The punishment is three years imprisonment, unfortunately, makes it a bailable offence.’’ 

Sunday, December 23, 2018

Original Indian convicted of rape to be stripped of UK citizenship

An Indian man who was convicted of 23 counts of sexual abuse of a male child within his family has been stripped of his British citizenship and faces deportation to India. The man, who has only be identified as RSD, came to the UK from India in 1997 and was granted British citizenship in 2004. In 2011, he was found guilty of grooming and raping a 7-year-old child.
According to a ‘Sunday Telegraph’ report, a UK court sentenced him to 14 years imprisonment and placed him on the sexual offenders’ register for life after finding him to have groomed and raped the boy between 2003 and 2010.

In what is believed to be the first case of its kind, the UK home secretary removed his citizenship on the grounds that when he applied to be a UK citizen he lied about the fact he was sexually abusing a child. The man won an appeal against that decision but a judge has ruled in favour of the home secretary, Sajid Javid, upholding the decision to strip RSD of his passport this month, which means he now faces being deported to India.

An Upper Tribunal of the Immigration and Asylum Chamber judge said in a judgment published recently: “It is my conclusion that the appellant obtained naturalisation in 2004 by deliberately concealing material facts.” A home office spokesperson said: “Any British Citizen may be deprived of his or her citizenship if the secretary of state is satisfied that it would be conducive to the public good. It is a power used for extreme and exceptional cases.” PTI

Salary doesn’t make director a staff: HC

Govt Told To Reconsider His Company’s Tender

In an important order, Gujarat high court has held that a company director’s experience with a previous company should be considered in the subsequent proprietorship concern, and that drawing salary by the director does not make him an employee or servant.
The HC said so while deciding a petition filed by a construction contractor, who was held ineligible for a contract for construction of a polytechnic building at Halol in Panchmahal district. A director of Sankalp Infracon, Suresh Vora, was declared ineligible at the prequalification stage for tender for construction earlier this year. The HC ordered the government to consider Vora’s past experience as a company director and reconsider his company’s tender for the contract.
When Vora inquired about the reason for being declared ineligible despite his experience as director of the company for nearly two decades, he was told that he was an employee in the earlier company because he was drawing a salary.
The company challenged the authorities’ decision before the HC and submitted that Vora was a 50% partner and director in Shree Infracom Pvt Ltc for nearly two decades before he founded his own company named Sankalp Infracom in 2016. Vora has got a good experience of work of 640 residential flats in Ahmedabad besides executing various government contracts while he was a director and partner in the earlier company. The government insisted that since Vora was drawing a salary from the previous company, he should be considered an employee and his experience as the director cannot be taken into consideration for awarding a contract to his company.
After hearing both the sides, a bench of Acting Chief Justice A S Dave and Justice A C Rao observed that company directors “are professional men, hired by the company to direct its affairs. But, they are not the servants of the company. They are rather the officers of the company”.
The court further said, “In the competitive corporate global scenario to retain the talent of an employee, an adequate and reasonable remuneration is required. Remuneration drives the efficiency of managers in order to get the maximum output of the company… Normally it could be presumed that if the director is drawing salary he takes an active part in the management of the company. It does not mean that he is an employee of the company.”

21 years after acquittal, Bombay HC convicts rape case accused

Full Judgment

Twenty-one years after he was acquitted of charges of raping an 11-year-old girl, a Nashik resident was convicted by the Bombay high court
on Saturday. A division bench of Justices Indrajit Mahanty and Vishwas Jadhav overturned a 1997 trial court order acquitting Macchindra Sonawane (who was 19 at the time of the incident and is now 41), and held him guilty of rape and sentenced him to seven years imprisonment. The bench refused a plea to show the accused leniency over the two-decade delay and directed Sonawane to pay Rs 1 lakh as compensation to the survivor. Sonawane has been given a month to surrender.
The high court said the sessions court had erred and acted in a “casual or cavalier manner”. It had freed the accused relying on an X-ray ossification
test of the survivor that estimated her age as 14. Taking into consideration the two- to three-year margin of error, it determined that the survivor’s age was 16, which was the age of consent at that time. 
The HC asked the legal services authority to trace the survivor and help her get compensation under the Maharashtra government scheme for rape survivors.
“Even though the incident took place in 1996, we remain with the fervent hope and confidence that protecting the confidence of the common man in the institution entrusted with the administration of justice is reaffirmed,” said the bench. 
On December 1, 1996, the survivor, who was alone at her home in Nashik, visited the accused’s shop for medicine for her headache. Sonawane forcibly dragged her to his room, raped her and threw her out of his house. The suvivor’s family found her outside the house in blood-stained clothes and took her to a hospital where it was confirmed that she suffered forcible sexual intercourse.
Police arrested the accused for rape. In 1997, a sessions court acquitted him. The trial court relied on an x-ray ossification test of the survivor that estimated her age as 14. The sessions court took into consideration the two- to the three-year margin of error, and concluded in favour of the accused, after determining that the survivor’s age was 16. Prior to 2013, 16 was the age of sexual consent in India; now it is 18. The trial court also concluded that the incident was consensual saying there were no injuries to show that the survivor had put up a resistance and her story that she had gone to get medicines was not believable.
Additional public prosecutor Mankunwar Deshmukh, while arguing the state’s appeal against the acquittal, said the trial court had erred in determining the survivor’s age. The prosecutor pointed out from the evidence that the survivor had not yet hit puberty and had not even started menstruating. Further, her physical features, as well as lack of development of sexual characteristics, revealed that she was below 14.
The high court agreed and said the trial court had mechanically determined the age and had wrongly given the benefit of “plus-two, minus-two years” principle to the accused who had committed a heinous crime.
Since the survivor was held to be a minor and consent was immaterial, the high court still dealt with the issue of consent. “The absence of any injury on her body cannot lead to a conclusion that she had given her consent and all that it indicates is that she did not put up resistance. Lack of any resistance or absence of injury on the body of the victim are of no consequence vis a vis the issue of consent,” said the bench.
The bench further pointed out that the survivor had categorically denied that she had consented to the act. “The provision is clear and specific that where sexual intercourse by an accused is proved and the question is whether it was without the consent of a woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent,” the high court ruled.
“We are of the considered view that the sessions judge has lost sight of the provisions of Evidence Act, and consequently erred in the finding on the issue of consent itself,” the high court added.

Saturday, December 22, 2018

Important Supreme Court Judgments Of 2018

Important Supreme Court Judgments Of 2018

The Year 2018 is about to end soon and it is time for a flashback into important happenings in the legal universe.
The year 2018 saw two CJIs- Former CJI Dipak Misra and the Current CJI Ranjan Gogoi. The constitution benches headed by Justice Misra, during his last month as CJI, delivered most of the significant judgments of this year- Sabarimala, Aadhaar, Homosexuality, Adultery, etc. The year ended with Rafale judgment by CJI Gogoi headed bench, which generated diverse responses in political circles.
Two provisions which criminalized Homosexuality and Adultery vanished from the penal statutes, when the Apex court ruled that both these acts are no longer criminal. The Supreme Court also recognised that to die with dignity is Fundamental Right by legalizing passive euthanasia. It also upheld Aadhaar program, though with riders.   Dissents penned by Justice Chandrachud in Aadhaar and Bhima Koregaon cases, and that of Justice Indu Malhotra in Sabarimala case, got widely debated.
It also turned to be a good year for Indian women. The Supreme Court allowed young women to enter Sabarimala, where they were not permitted for many centuries, in the name of custom and tradition. Justice Indu Malhotra became the first woman Judge to be elevated to Supreme Court directly from the Bar. It also witnessed the rarity of an all-women bench as Justice R Banumathi and Justice Indira Banerjee sat in Court No.12 on September 5 and 6.
In the coming year, we might be able to witness the Supreme Court proceedings without actually going there, as a petition seeking live streaming of court proceedings was allowed by the Apex Court.
Here is the List of 35 important Judgments delivered by the Supreme Court in 2018.

SABARIMALA

Devotion Cannot Be Subjected To Gender Discrimination, Women Entry Allowed In Sabarimala By 4:1 Majority; Lone Woman In The Bench Dissents
[Indian Young Lawyer’s Association & Ors. V. State of Kerala & Ors.]
The Supreme Court delivered one of the most keenly awaited judgment in Sabarimala case. by a 4:1 majority, the Court has permitted entry of women of all age groups to the Sabarimala temple, holding that ‘devotion cannot be subjected to gender discrimination’. The lone woman in the bench, Justice Indu Malhotra, dissented.

HOMOSEXUALITY 

157-Year-Old Law Criminalizing Consensual Homo-Sexual Acts Between Adults Struck Down; Section 377 IPC Held Unconstitutional To That Extent
 [Navtej Singh Johar& Ors. V. Union of India]
In a landmark Judgment Supreme Court of India struck down 157 year old law which criminalizes consensual homo sexual acts between adults. The Five Judge Bench declared Section 377 IPC unconstitutional, insofar as it criminalises consensual sexual acts of adults in private.

AADHAAR

Sections 33(2),47& 57 Of Aadhaar Act Struck Down; National Security Exception Gone; Private Entities Cannot Demand Aadhaar Data 
[Justice K. S. Puttuswamy (Retd.) and Anr V Union of India & Ors.]
The judgment authored by Justice AK Sikri, which has concurrence of Chief Justice Dipak Misra and Justice AM Khanwilkar, read down some of the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016, struck down a few but significant ones (mainly Section 33(2), 47 and 57), and upheld the rest.

ADULTERY 

‘Husband Is Not The Master Of Wife’, 158 Year Old Adultery Law Under Section 497 IPC Struck Down 
[Joseph Shine V. Union of India]
The Supreme Court struck down 158 year old Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional. The Court however clarified that adultery will be a ground for divorce. It was also stated that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the IPC.

EUTHANASIA 

Right To Die With Dignity A Fundamental Right, Passive Euthanasia And Living Will Allowed, Guidelines Issued
[Common Cause (A Regd. Society) V. Union of India & Anr]
Supreme Court of India held that right to die with dignity is a fundamental right. The Bench also held that passive euthanasia and a living will also legally valid. The Court issued detailed guidelines in this regard. The Bench also held that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in Persistent vegetative state with no hope of recovery.

SC/ST RESERVATION IN PROMOTIONS

No Need To Collect Quantifiable Data Of Backwardness To Give Reservation In Promotions For SC/STs- Nagraj Decision Clarified; Reference To Larger Bench Declined
[Jarnail Singh v LachhmiNarain Gupta& Ors.]
A Five Judge Constitution Bench of the Supreme Court held that the 2006 Judgment in Nagraj Case, relating to reservations for SC/ST in promotions, need not be referred for consideration of larger Bench.However, the judgment by Justice Nariman clarified that there is no requirement to collect quantifiable data of backwardness of SC/STs to provide reservation in promotions. The dictum in Nagraj was held contrary to Indira Sawhney decision to the extent it prescribed collection of quantifiable data of backwardness as a prerequisite for providing reservation in promotions.

SECTION 498A IPC

SC Modifies The Earlier Directions Issued To Prevent Misuse Of 498A IPC, Says No To ‘Welfare Committees’
[Social Action Forum For Manav Adhikar  V. Union of India]
Supreme Court of India has modified its directions issued in  Rajesh Sharma case for preventing misuse of Section 498A of Indian Penal Code. A three judges’ bench led by CJI has withdrawn the earlier direction issued by a two judges bench that complaints under Section 498A IPC should be scrutinised by Family Welfare Committees before further legal action by police.

HADIYA 

‘Right To Change Of Faith Is Part Of Fundamental Right Of Choice’: 
[Shafin Jahan V. Ashokan K. M. & Ors]
The Supreme Court set aside the Kerala High Court judgment annulling the marriage between Hadiya and Shafin Jahan. The Apex Court quashed the High Court judgment in view of Hadiya’s statement during her personal appearance before the Court in November 2017, and opined that the High Court could not have annulled the marriage under Article 226 of the Constitution of India. It, however, directed the National Investigation Agency (NIA) to continue with its investigation. Later, it gave detailed reasons for setting aside the High Court judgment.

AYODHYA

Observations In Ismail Faruqui Need To Be Viewed In Context Of Land Acquisition Proceedings; Not Relevant In Ayodhya Title Dispute
[M. Siddiq (D) THR LRS..Mahant Suresh Das & Ors.]
The Supreme Court by a 2:1 majority, refused to refer the Ayodhya-Ram Janmabhoomi land dispute case to a larger bench. While the majority judgment was authored by Justice Ashok Bhushan, for himself and Chief Justice of India Dipak Misra, Justice S. Abdul Nazeer delivered the dissenting opinion. The majority judgment clarified that the observations made in the Dr. M. Ismail Faruqui and Ors. Vs. Union of India and Ors. judgment, that mosque was not an integral part of Islam, have to be understood in the context of land acquisition proceedings.

LIVE STREAMING OF SC PROCEEDINGS

Sunlight Is The Best Disinfectant: Live-Streaming Of Court Proceedings In Larger Public Interest Allowed 
[Swapnil Tripathi V. Supreme Court of India]
Supreme Court of India held that the Court proceedings shall be live-streamed in the larger public interest. The Bench has said that appropriate Rules in that regard will be framed soon under Article 145 of the Constitution of India.

 RAFALE

Petitions Seeking Probe In To Rafale Deal Dismissed
[Manohar Lal Sharma V. Narendra Damodar Das Modi & Ors.]
The Supreme Court on Friday dismissed a string of petitions seeking an independent probe into the 2015 Rafale deal, according it a clean chit in all respects- decision-making, pricing and procurement procedure. Stating that individual perception cannot influence the court into intervening, the bench clarified that the limits of judicial review in respect of defence procurements have to be determined upon a consideration of the individual facts and circumstances.

LYNCHING

Horrendous Acts Of Mobocracy Can’t Be Allowed Become New Norm: Lynching Incidents Condemned; Directions Issued 
[Tehseen S. Poonawalla V. Union of India & Ors.]
In a landmark judgment Supreme Court of India condemned the lynching incidents across the country. The Bench headed by Chief Justice Dipak Misra said the horrendous acts of mobocracy cannot be allowed to become a new norm in the Country.

FIRECRACKERS

Complete Ban On Sale Of Firecrackers Refused; Online Sale Banned; Duration For Bursting Crackers Fixed 
[Arjun Gopal & Ors. V. Union of India & Ors.]
The Supreme Court ruled against imposing complete ban on firecrackers but has said that only less polluting green crackers can be sold, that too only through licensed traders. The Court has banned online sale of firecrackers, restraining e-commerce websites from carrying out its sale. The Court also fixed duration for bursting of crackers.

 VICTIM APPEAL AGAINST ACQUITTAL

Victim Can File Appeal Against Acquittal Without Seeking Leave To Appeal: SC, Justice Gupta Dissents
[Mallikarjun Kodagali (Dead) … vs The State Of Karnataka]
In a landmark judgment, A three Judge Bench comprising  Justice Madan B. Lokur ,Justice S. Abdul Nazeer and Dipak Gupta held that a victim can file an appeal in the High Court against the acquittal without seeking leave to appeal.

 FORMER ISRO SCIENTIST NAMBI NARAYANAN

Rs 50 Lakh Compensation Granted To Former ISRO Scientist Nambi Narayanan, Committee Headed By Justice DK Jain To Inquire In To The Role Of Kerala Police Officers
[S. Nambi Narayanan V. Siby Mathews &Ors.]
Supreme Court of India granted Rupees 50Lakh compensation to former ISRO Scientist Nambi Narayanan. The Court has also constituted a committee headed by former Supreme Court Judge Justice DK Jain to inquire in to the role of police officers in the conspiracy against him. The three Judge Bench has pronounced the Judgment in his petition for action against former top officials of Kerala Police who had allegedly subjected him to torture and illegal detention in connection with the infamous ISRO Espionage Case.

JUDGE LOYA DEATH CONTROVERSY

Petitions Seeking Probe Into The Death Of Judge Loya Dismissed
[TehseenPoonawalla V. Union of India & Anr.]
Supreme Court of India dismissed the petitions seeking independent probe into Judge Loya’s death. The Three-Judge bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar, was pronouncing the verdict in the string of writ petitions seeking an independent probe into the death of CBI special judge B. H. Loya.

LG VS DELHI GOVT

LG cannot interfere in each and every decision of the Delhi Government

[Govt. of NCT of Delhi V. Union of India & Anr.]
In a significant judgment, the Constitution Bench of the Supreme Court held that the Lieutenant-General of the Delhi had to act as per the aid and advise of the Council of Ministers of Delhi Government except in matters of land, police and public order. It held that the LG cannot interfere in each and every decision of the Delhi Government. Although decisions of the Government have to be communicated to the LG, there is no need to obtain the concurrence of LG in all matters. The Court also held that Delhi was not a ‘State’, and occupied a special status under the Constitution.

STAY NOT MORE THAN SIX MONTHS

Stay In Civil/Criminal Proceedings Not To Be Granted Beyond Six Months; Further Extension Only By Speaking Order
[Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. VS. Central Bureau of Investigation]
In a very significant judgment, the Supreme Court directed that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. The Three-Judge Bench headed by Justice Adarsh Kumar Goel also held that where stay is granted in future, the same will end on the expiry of six months from the date of such order unless a similar extension is granted by a speaking order.

 GST VALIDITY

Constitutional Validity Of Goods And Services Tax (Compensation To States) Act, 2017 Upheld
[Union of India & Anr. V. Mohit Mineral Pvt. Ltd.]
The Supreme Court upheld the Constitutional validity of Goods And Services Tax (Compensation To States) Act, 2017, as well as the Goods and Services Tax Compensation Cess Rules, 2017, as framed under the Act. The verdict was delivered by a Bench comprising Justice AK Sikri and Justice Ashok Bhushan.

SC-ST ACT MISUSE

SC Issues Directions To Prevent Misuse Of SC/ST Act, Govt.Servants Can’t Be Arrested Without Prior Sanction 
[Dr. Subhash Kashinath Mahajan V. State of Maharashtra & Anr.]
Supreme Court of India issued directions to prevent the misuse of provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (SC/ST Act). A Two Judge Bench of Justices AK Goel and UU Lalit was examining the question whether there can be procedural safeguards so that provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) (SC/ST) Act 1989 are not abused for extraneous considerations.

LAWMAKER LAWYERS

Can’t Restrict MPs And MLAs From Practicing Law
[Ashwini Kumar Upadhyay V. Union of India & Anr.]
Supreme Court dismissed the petition seeking a declaration that a person cannot be permitted to perform the dual role of a lawyer and a legislator (MP/MLA). The three-Judge Bench comprising Chief Justice of India Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud was pronouncing the Judgment on a petition filed by BJP leader and Advocate Ashwini Kumar Upadhyay.

DISQUALIFICATION OF CANDIDATES

Candidates Cannot Be Disqualified On Framing Of Charges In Criminal Case
[Public Interest Foundation & Ors. V. Union of India & Anr.]
The five-judge Constitution Bench of the Supreme Court held that candidates cannot be disqualified merely because  charges have been framed against them in a criminal case. The bench urged the legislature to consider framing law to ensure decriminalisation of politics.The judgment came on petitions filed by BJP Leader AshwiniUpdhyaya, former CEC JM Lyngdoh& NGO, Public Interest Foundation by a bench comprising Chief Justice of India Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra.

MASTER OF ROSTER CJI

CJI Is The Master Of Roster: Shanti Bhushan’s Petition Dismissed
[Shanti Bhushan V. Supreme Court of India]
Dismissing the petition filed by Senior Advocate Santhi Bhushan seeking regulation of powers of the CJI in constituting benches and allocating cases, the Supreme Court asserted that CJI was the ‘Master of the Roster’.

NDPS INVESTIGATION OFFICER INFORMANT

Accused Entitled To Acquittal If Informant And Investigating Officer Is The Same Person
[Mohan Lal V. State of Punjab]
In a significant pronouncement, a three-judge bench of the Supreme Court categorically held that the informant and the investigator in NDPS cases must not be the same person.

KATHUA

The Trial Of Kathua Rape And Murder Case Transferred To Pathankot Sessions Court, Punjab
[Mohd. Akhtar V. State of Jammu & Kashmir]
Supreme Court of India transferred the trial of rape and murder of a 8-year-old girl in Kathua district of Jammu and Kashmir to District and Sessions Court, Pathankot in Punjab.

NO BUNGALOWS FOR EX- CMS

Ex-CMs Not Entitled To Govt Bungalows
 [Lok Prahari V. State of Uttar Pradesh & Ors.]
Quashing an amendment made in a Uttar Pradesh state law to permit former Chief Ministers to occupy government bungalows, the Supreme Court in a significant ruling held that such a legislation is “arbitrary, discriminatory and unsupported by the Constitution”. The SC thereby struck down Section 4(3) of UP Ministers (Salaries, Allowances and Miscellaneous Provisions) Act. The judgment meant that such laws passed by all states remain scrapped and no former Chief Ministers in India is entitled to government accommodation.

BHIMA KOREGAON

Not A Case Of Arrest For Dissent, Plea For SIT In BhimaKoregaon Case Turned Down By 2:1 Majority, Chandrachud.J Dissents
[Romila Thapar& Ors. Vs Union of India & Ors.]
The Supreme Court on Friday, in a majority judgment authored by Justice A. M. Khanwilkar on behalf of Chief Justice Dipak Misra and himself, declined the prayer for a SIT probe into the Bhima-Koregaon violence and the chain of events leading to it. The judgment was rendered on a PIL filed by historian RomilaThapar and four other eminent persons challenging the alleged-unlawful arrest on August 28 of five activists, namely, Gautam Navalakha, Vernon Gonsalves, Arun Ferreira, P. Varavara Rao and Advocate Sudha Bharadwaj. Subsequently, four of these accused have also filed a supplementary affidavit seeking impleadment before the apex court.

 FOREIGN LAW FIRMS

Foreign Law Firms Can’t Set Up Office In India: Foreign Lawyers Can Advice Clients On ‘Fly in And Fly Out’ Basis
[Bar Council of India V. A. K. Balaji& Ors.]
Supreme Court of India held that foreign law firms cannot set up offices in India or practice in Indian Courts. But they can give advice to Indian clients on ‘fly in and fly out’ mode in temporary basis. The Bench also directed the Centre and BCI to frame rules. The Supreme Court bench of Justice Adarsh Kumar Goel and Justice UU Lalit was delivering the Judgment in the foreign law firms case.

AMBIGUITY TAX EXEMPTION

Benefit of Ambiguity In Tax Exemption Notification Should Go In Favour Of Revenue Department
[Commissioner of Customs (Import), Mumbai vs. M/s. Dilip Kumar and Company]
In an important judgment in the realm of taxation laws the Constitution bench of the Supreme Court ruled that exemption notifications should be interpreted strictly and that the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification.

DEFAULT BAIL

Accused Is Entitled To Default Bail Even If Charge Sheet Returned Due To Technical Reason, No Court Can Extend Remand Period U/S 167(2) Beyond 90 Days 
[Achpal @ Ramswaroop& Anr. V. State of Rajasthan]
A two Judge Bench of the Supreme Court on Monday held that an accused is entitled to default bail under Section 167(2) of Code of Criminal Procedure even if the charge sheet filed by police was returned by the Magistrate for technical reasons. The Court also held that the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality.

 PROFESSIONAL COURT MANAGERS

SC Directs Appointment Of Professionally Qualified Court Managers In All Principal District And Sessions Courts For Better Court Administration
[All India Judges Association & Ors. V. Union of India & Ors.]
Lamenting how judicial infrastructure has been given relatively low importance with infrastructure in courts in interior parts of the country being on ventilator, the Supreme Court underlined some vital features which have to provide in all court complexes across India including court managers with MBA degree for ensuring efficient court administration in every judicial district.

 SLP AGAINST DEATH SENTENCE

SLP Against Death Sentence Shall Not Be Dismissed Without Giving Reasons
[BabasahebMarutiKamble V. State of Maharashtra]
The Supreme Court held that Special Leave Petitions filed in those cases where death sentence is awarded by the courts below, should not be dismissed without giving reasons, at least qua death sentence.The three judge bench comprising Justice AK Sikri, Justice Ashok Bhushan and Justice Indira Banerjee has recently recalled two such orders in two different cases in which it had dismissed SLPs filed by the accused against imposition of death penalty.

LOW VISION MBBS

Persons With Low Vision Can’t Be Denied Reservation In Admission To MBBS Course
[PurswaniAshutosh V. Unionof India & Ors.]
In a decision with wide ramifications, the Supreme Court bench upheld the claim of a medical aspirant with “low vision” to be admitted in MBBS course in the category of persons with benchmark disability while holding that provisions of the Rights of Persons with Disabilities Act, 2016 which consider low visibility as a benchmark disability are binding on the Medical Council of India.

WITNESS EXAMINATION IN CRIMINAL TRIAL

Directions Issued On Examination Of Witnesses In Criminal Trial
[State of Kerala V. Rasheed]
The Supreme Court, on Tuesday, listed out ‘practical guidelines’ to be followed by trial courts in the conduct of a criminal trial, ‘as far as possible’. While setting aside a Kerala High court order, the bench comprising of Justice Abhay Manohar Sapre and Justice Indu Malhotra observed that while deciding an Application to defer cross examination under Section 231(2) of the Cr.P.C. a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence.

CAUVERY 

The State of Karnataka Directed to release 177.25 TMC of water, instead of the 192 TMC, to the state of Tamil Nadu
[State of Karnataka vs. State of Tamil Nadu]
A three-judge bench headed by Chief Justice, in its judgement on the Cauvery Water Dispute between the states of Karnataka, Tamil Nadu and Kerala and the UT of Puducherry, partially allowing the appeal preferred by the state of Karnataka in 2007 against the order of the Cauvery Water Disputes Tribunal. The bench directed the state of Karnataka to release 177.25 TMC of water, instead of the 192 TMC, to the state of Tamil Nadu.

Friday, December 21, 2018

Bombay high court upholds death for man who raped, killed techie


The Bombay high court. on Thursday confirmed the death sentence given to Chandrabhan Sanap (33) for the brutal rape and murder of a 23-year-old software engineer in January 2014. 
A division bench of Justice Ranjit More and Justice Bharati Dangre upheld his conviction saying they had noticed “no remorse on his part”. Ruling out the possibility of reforming him, the bench said there was “no ground to absolve Sanap of the most gruesome and cruel act he has indulged in. Such a person would surely remain a menace to society”.

The victim, who worked for one of India’s leading tech companies, was offered a lift by Sanap to her hostel in  Andheri(West) when she arrived at Lokmanya Tilak Terminus from Machalipatnam, Andhra Pradesh, on January 5, 2014. Sanap raped and killed her and then set her body afire in a deserted area off Eastern Express Highway near Kanjurmarg. In December 2015, a sessions court sentenced him to the gallows.
In a 167-page judgment, Justice Dangre, who penned the verdict, recalled the words of US secretary of state Madeline Albright that voices of women could not be silenced any more. Referring to Nirbhaya, Shakti Mills and other cases, the bench said that womenfolk of the country were looking towards the executive, legislature and judiciary to restore their faith in the system.
“Crimes against women, which are on the rise, need to be tackled on all fronts in a manner which should respond to the society’s cry for justice against such criminals. She was done to death by the accused for no fault of her own, except for a reason that she is a woman and she fell prey to the sinister design of the accused to fulfil his lust. The said attitude of the accused, according to us, deserves a death sentence.”
The bench said a civilization is measured in the way it treats women. “The women in this country may not demand they be worshipped in the modern day scenario but they would surely expect to breathe freely and feel safe and comfortable in and outside their houses. The women of this country, after a long journey, are on the path of empowerment and it is the bounden duty of the state to empower them by assuring their safety and security.” The court noted the “abhorrent, grotesque and pervert manner” in which she was killed.
Her partly burnt body was found more than 10 days later, on January 16, 2014. It would take Mumbai crime branch another two months to crack the case and arrest Sanap on March 2, 2014. The first breakthrough was CCTV images at the station that showed the victim leave with a man. Painstaking probe led cops to Sanap. Prosecution witnesses included his neighbours, people who had seen him at the platform and on the highway, and even an astrologer and a priest who helped him do pooja for committing a sin against a woman.

The defence questioned the veracity of the CCTV which was dismissed by the bench that had watched the videos. “The screenshots of the clipping clearly reveal that it is the accused who is present before us,” the high court concluded.

Thursday, December 20, 2018

Can’t deny legal aid to accused in court martial: SC

Changing a 64-year-old Army regulation that denied legal assistance to accused during court-martial proceedings, the Supreme Court ruled that principles of natural justice demanded that whenever an accused Army person seeking legal assistance during the trial, he/she must get it. Sepoy Jaswant Singh faced summary court-martial (SCM) proceedings on two counts and found him guilty of both. The Armed Forces Tribunal dismissed his appeal.

Sepoy Jaswant Singh faced summary court-martial (SCM) proceedings on two counts — assaulting a superior officer and using abusive language against a subedar who picked on him for being improperly dressed for the parade. The SCM found Singh guilty of assaulting the superior officer, ordered his dismissal from service and six months of imprisonment in civil jail. The Armed Forces Tribunal dismissed his appeal. He moved the SC.
Before a bench of Justices D Y Chandrachud and M R Shah, Singh’s counsel Major K Ramesh said his client had requested the commanding officer in July 2009 for permission to hire a civil advocate to assist him during the SCM but it was denied citing Regulation 479 of Army regulations, which provided that a civil advocate was permissible to only those persons who were facing trial for an offence punishable with death sentence.
Writing the judgment for the bench, Justice Chandrachud said on the contrary, Rule 129 of Army Rules, 1954, provided that in an SCM, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. “The expression ‘may’ must be read to mean that the person who is proceeded against has the option on whether or not to engage a legal adviser or any other person. It represents an entitlement to be represented,” he said.
Interpreting ‘may’ in Rule 129 as ‘must’, the bench said, “In view of the specific provision of Rule 129, the commanding officer was evidently in error in declining the assistance of a lawyer on the ground that legal assistance could be admissible only where the offence was punishable with death.”
Referring to the case in hand, the SC said, “Singh had rendered seven years of service. He was pitted against his commanding officer. In the face of Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense. For these reasons, we are of the view that there was a clear violation of the principles of natural justice.” It rejected additional solicitor general Pinky Anand’s argument that no prejudice was caused to Singh because of non-provision of the lawyer during the trial.

The bench said, “The prejudice is too evident. Singh was dismissed from service and sentenced to six months’ imprisonment. Both his livelihood and liberty were taken away. In the circumstances, we allow the appeal and set aside the judgment of the AFT and the decision which has been taken on the basis of the summary court-martial.” This order will permit Singh to rejoin the Army.