Tuesday, September 22, 2020

Sushant Singh Rajput case: Judicial custody of Rhea Chakraborty, Showik, Dipesh, Samuel Miranda extended till Oct 6

Rhea Chakraborty’s 14-day judicial custody ended today, after she was arrested by the Narcotics Control Bureau on (NCB) September 9, but her custody has been extended by the sessions court. Rhea was presented before the judge via video conference and after hearing both the sides, the custody was extended till October 6. Since it was just a remand production.  Apart from Rhea, her brother Showik Chakraborty and Sushant Singh Rajput’s personal staff members - Dipesh Sawant and Samuel Miranda have also been sent to judicial custody till October 6.

CBSE Compartment Exams: "Academic career of 2 lakh students cannot be hampered", SC directs UGC to not release academic calendar till Sep 24

In the plea seeking an extension of college admission deadlines in the wake of the delayed Central Board of Secondary Education (CBSE) compartment exams, the Supreme Court today directed the University Grants Commission (UGC) to not release the academic calendar till September 24.

UGC will inform the Court about the declaration of the compartment exam results by then.The matter was heard today by a Bench of Justices AM Khanwilkar and Sanjiv Khanna.

Monday, September 21, 2020

No reason for NLSIU to declare zero year, home-based online test could not have ensured transparency: The Supreme Court's NLAT verdict

“The respondent No.2 had categorically taken the stand on behalf of the CLAT that online test at home with technological measures cannot ensure transparency and the test will be completely compromised and may even be manipulated by participants and coaching centres. There was no reason for change of mind by respondent No.2 within a week…when home based online test could not have been permitted for CLAT-2020, the same test can also not be permitted for NLAT-2020.”

Supreme Court


As reported earlier, several students highlighted the potential of mass cheating when NLAT was first held on September 12, and again when the re-test took place two days later. The question paper was leaked midway through the latter exam, raising questions surrounding the integrity of the process. However, the Bench did not see it fit to delve into whether the exam should be set aside on account of the alleged malpractices that took place. It held,

“…we are of the view that for the present case, it is not necessary for this court to enter into various materials referred to by the petitioners and the reports and to decide as to whether malpractices were actually adopted in the examination or not. Respondent No.1 being premier University, we have no doubt that it must have taken all necessary precautions to avoid any malpractices and cheating in the examination…We need not express any opinion in this proceeding under Article 32 with regard to the aspect of malpractices in the test conducted on 12.09.2020 and 14.09.2020 which is essentially a matter of scrutiny of facts and evidence.”

On these grounds, among others, the Court set aside the admission notification announcing the holding of NLAT and directed NLSIU to admit students this year on the basis of CLAT. The Court has also directed for the reinstatement of NLSIU into the NLU Consortium.


Read Full Judgment

Wednesday, September 9, 2020

Supreme Court refuses to interfere in fresh pleas seeking to postpone NEET 2020 amid COVID-19

A three-judge Bench of the Supreme Court today dismissed fresh pleas urging the Court to reconsider the conduct of the medical entrance exam, NEET on September 13, 2020 in view of the rising cases of COVID-19 and constraints faced by students amid lockdown restrictions.


Supreme Court refuses to interfere in fresh pleas seeking to postpone NEET 2020 amid COVID-19

Supreme Court refers Maratha Reservation matter to larger bench, no Maratha quota in jobs and admissions

The Supreme Court today referred to a larger Bench a batch of petitions challenging the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, which provides for reservation in employment and education to the Maratha community.

The Bench of Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat has held that in the meanwhile, there will be no such reservation in jobs and admissions.

The Court has further ruled that admissions to postgraduate courses will not be altered. The matter will now be placed for Chief Justice of India, SA Bobde, who will constitute a larger bench.

The Bench had heard the parties on the question of reference of the matter to an 11-Judge Constitution Bench on the issue of 50% cap on reservations.

Senior Advocates Mukul Rohatgi, representing the State of Maharashtra, and Senior Advocate Kapil Sibal, representing an applicant, urged the Court to refer the issue of the 50% ceiling on reservation to a larger Bench.

The SEBC Act provides for reservation for the Maratha community in the State of Maharashtra. The decision of the Bombay High Court upholding the law with modifications was challenged before the Supreme Court. One of primary grounds for challenge was that this law, if implemented, would breach the 50% upper ceiling put in place for reservations.

Friday, September 4, 2020

Sex with no clear ‘yes’ is rape, Danes decide

DENMARK is changing the law so that sex without explicit consent can be prosecuted as rape. The reform — approved by MPs and expected to take effect this year — is an important milestone for gender equality, justice minister Nick Haekkerup said. The new law says sexual consent must be given voluntarily and as an expression of free will through words or action. Britain, Sweden, Germany and Belgium already have similar legislation.

Thursday, September 3, 2020

The Supreme Court today refused to entertain a petition filed by Netflix - 'Bad Boy Billionaires'

The Supreme Court was directly moved to challenge the order of a court in Araria, Bihar, which had granted an interim stay on the airing of Netflix’s 'Bad Boy Billionaires'.


The Supreme Court today refused to entertain a petition filed by Netflix challenging an order of a lower court in Bihar, which had restrained the OTT platform from releasing, transmitting, distributing, and exhibiting the upcoming web series 'Bad Boy Billionaires' or its trailer using Subrata Roy's name.

The Lower Court's order was challenged before the Supreme Court which led to the question being raised from the Bench as regards the propriety of moving the Supreme Court against an order passed by a Court of first instance. Netflix's petition had assailed the order of a Sub Judge in Bihar's Araria.

A Bench of Chief Justice of India SA Bobde and Justices Arun MishraAS Bopanna and Justice V Ramasubramanian questioned the online streaming platform as to why it approached the Supreme Court directly.

This is not the proper forum to come to after the order is passed by a lower court. You have deliberately come here, you should not have come here."
CJI Bobde.



Wednesday, September 2, 2020

The Delhi High Court today refused to grant an order of interim injunction against the online streaming of Gunjan Saxena

The Delhi High Court today refused to grant an order of interim injunction against the online streaming of Gunjan Saxena - The Kargil Girl in the suit moved by Central Government and Indian Air Force.


Injunction cannot be granted because the movie is already out..not being shown in cinema theatre is not good enough.. You should have come at the first instance.
Delhi High Court said.

The Court noted that the movie had been streaming on Netflix for days and remarked that the Centre should have moved the Court sooner.

While assuring that the concerns raised by the Centre would be looked into, the Court granted the Defendants 10 days time to respond to the suit.

In its plaint before High Court, Centre has asserted that Dharma Productions has projected its commercial film as a historical biopic and distorted the true and correct facts purely for sensationalization.

The portrayal in the movie is contrary to the ethos, work culture and work ethic of the Indian Air Force, it is said.

Tuesday, September 1, 2020

Dr Kafeel Khan's speech calls for national integrity and unity, does not instigate violence or hatred: Allahabad HC

"A complete reading of the speech prima facia does not disclose any effort to promote hatred or violence. also nowhere threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent."
Allahabad High Court

Thursday, August 27, 2020

Cannot prevent use of 'Coronil' because of a "pesticide registered in its name", SC refuses to entertain trademark case against Patanjali

The order was passed in an appeal moved by Patanjali and the Divya Yog Mandir Trust.

The August 6 order under challenge was passed by Justice CV Karthikeyan, who allowed a trademark infringement suit by Arudra. Arudra had registered the trademark for 'CORONIL-92 B' as an acid inhibitor product for industrial cleaning and chemical preparations for industrial use in June 1993.

While ruling in favour of Arudra in the trademark suit, the Single Judge had also slapped a Rs 10 lakh fine on Patanjali and the Divya Yog Mandir Trust for "exploiting the fear and panic among the general public by projecting a cure for the Coronavirus."

Monday, August 24, 2020

Housing Society is not an industry - Employee cannot be treated as a workman -DELHI HIGH COURT


READ FULL JUDGMENT


Housing Society is not an industry - Employee cannot be treated as a workman - Services rendered by the workman as security guard was for the members of housing society - Cannot calim wages and overtime allowances.

Industrial Disputes Act, 1947 Section 2 (j) Dismissal of claim for wages - Petitioner as security guard worked diligently for a period of 13 years - Housing Society is not an industry - Workman raised an industrial dispute demanding overtime for his working 12 hours a day whereas he was paid only for 8 hours - Claim rejected on the ground that Housing Society cannot be treated as 'industry' under the Act - Employee cannot be treated as a workman - Services rendered by the workman was for the members of housing society - As per Supreme Court, housing society cannot be an 'industry' - No interference - Petition dismissed.

Friday, August 21, 2020

Sushant Singh Rajput: CBI probe into FIR against Rhea Chakraborty lawful; Mumbai Police to hand over all evidence, Supreme Court

The Supreme Court today held that the Central Bureau of Investigation's (CBI) probe into the FIR lodged against actress Rhea Chakraborty in connection with the death of Sushant Singh Rajput is lawful.

The Court has further directed the Mumbai Police to hand over all the evidence in the case to the CBI.

On July 30, Chakraborty moved the Supreme Court seeking transfer of the case lodged against her.

The transfer petition states that the FIR in Patna alleging abetment to suicide charges against Chakraborty is nothing but an act of "connivance" between the State of Bihar and Rajput's father.

During the hearings before the Supreme Court, the Maharashtra and Bihar governments assailed each other's jurisdiction to investigate the matter, while both alleging that the issue was being politicized.

Meanwhile, the Bihar Police handed over the investigation in the matter to the Central Bureau of Investigation (CBI).

Wednesday, August 12, 2020

Daughters Have Coparcenery Rights Even If Their Father Was Not Alive When Hindu Succession (Amendment) Act, 2005 Came Into Force: SC


READ JUDGMENT

In a significant judgment, the Supreme Court has held that a daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of the amendment.

Justice Arun Mishra today pronounced the judgment in a batch of appeals that raised an important legal issue whether the Hindu Succession (Amendment) Act, 2005, which gave equal rights to daughters in ancestral property, has a retrospective effect?

"Daughters must be given equal rights as sons, Daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not", Justice Mishra said while pronouncing the judgment today. The bench also comprising of Justices S. Abdul Nazeer and MR Shah, overruled the contrary observations made in Prakash v. Phulavati and Mangammal v. T.B. Raju. The court held as follows:

  1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer the status of coparcener on the daughter born before or after amendment in the same manner as a son with the same rights and liabilities.

  2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December 2004.

  3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

  4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of the coparcenary. The fiction was only for the purpose of ascertaining the share of deceased coparcener when he was survived by a female heir, of Class ­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given a share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

5 In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

Wednesday, August 5, 2020

SC Dismisses Prashant Bhushan's Petition Challenging Registry's Handling Of Contempt Complaint

The Supreme Court on Wednesday dismissed the writ petition filed by Advocate Prashant Bhushan against Secretary General of SC alleging procedural irregularities in accepting the contempt petition without the sanction of Attorney General. The petition had sought the recall of contempt notice.

A bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari summarily dismissed the petition, without assigning reasons

"We do not find any ground to entertain this writ petition, which is, accordingly, dismissed", said the order passed by the bench.

Appearing for Bhushan, Dushyant Dave, Senior Advocate, stated that the complaint filed by one Advocate Mahek Maheshwari, which sought contempt action against Bhushan, was defective as it was not accompanied with the sanction of the Attorney General as mandated by Section 15 of the Contempt of Courts Act 1971 and Rule 3(c) of the Rules to Regulate Proceedings for Contempt of the Supreme Court 1975.



Thursday, June 11, 2020

AGR: "Don't misuse our October 2019 judgment", Supreme Court asks Centre to reconsider demanding dues from PSUs

The Supreme Court today directed the Centre through the Department of Telecommunications (DoT) to reconsider demanding Adjusted Gross Revenue (AGR) dues from Public Sector Undertakings (PSUs).

In the meantime, the telecom companies have been directed to file affidavits to show how they propose to complete the payment of their liabilities towards AGR dues.

Read Order

Thursday, May 21, 2020

No person, be a journalist or otherwise, can claim open access to the precinct of the Parliament: Delhi High Court

The Delhi High Court has stated that no person, be a journalist or otherwise, can claim an open access to the precinct of the Parliament. (Anil Chamadia vs Media Advisory Committee of the Rajya Sabha)


Friday, May 15, 2020

‘No loudspeakers for azaan, only human voice allowed’: UP top court orders


Full Order

The Allahabad High Court has held that azaan, or the Islamic call to ritual prayer, can be recited by a muezzin from minarets of the mosques by human voice only without using any amplifying device or loudspeakers. 

The court added that such recitation by human voice cannot be hindered under the pretext of violation of the guidelines issued by the state government to contain the spread of coronavirus.

It also said that one can’t use a loudspeaker for azaan without prior permission of district administration in accordance with the law. 

“We are of the opinion that azaan may be an essential and integral part of Islam but its recitation through loud­speakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25, which is even otherwise subject to public order, morality or health and to other provisions in part III of the Constitution,” the bench ruled.

It cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require since it amounts to taking away the fundamental right of other persons,” the bench added. 

However, the court shot down the state government’s contention that its recitation by human voice was violative of any provision of law. 

“The government had not been able to explain as to how the recitation of azaan merely through human voice can be violative of any provision of law or any guidelines issued in view of Covid-19 pandemic,” it said.

The Bench, however, kept it open for petitioner to approach the district administration for permission to use loudspeaker for azaan. It added that one can’t use loudspeakers for azaan or for any other purpose without prior permission of district administration.

The bench of Justices Shashi Kant Gupta and Ajit Kumar thus disposed of a PIL filed by BSP MP from Ghazipur, Afzal Ansari, seeking lifting of ban on azaan from mosques in Ghazipur.


Friday, May 8, 2020

Vizag gas leak incident - Rs 50 Crores with the District Magistrate, Vizag.-NGT

The National Green Tribunal (NGT) has taken suo moto cognizance of the Vizag gas leak incident and has directed the company, LG polymers, to deposit an initial amount of Rs 50 Crores with the District Magistrate, Vizag.
The incident that took place on the intervening night of May 6 and 7 in Visakhapatnam had left as many as 11 dead in and over 100 people hospitalized. About a thousand others have reported sickness following the gas leak. The NGT also observed that the fatalities and the injuries are only likely to increase.
The NGT has issued notice to the Andhra Pradesh State Pollution Control Board, the District Magistrate of Visakhapatnam, the Central Pollution Control Board (CPCB), the Ministry of Environment, Forest & Climate Change, as well as to LG Polymers India Pvt., Limited, from whose plant, the leak occured.
LG polymers has also been directed by the Tribunal to deposit an initial amount of Rs 50 Crores with the District Magistrate of Visakhapatnam. The Tribunal said,
"Having regard to the prima facie material regarding the extent of damage to life, public health and environment, we direct LG Polymers India Pvt., Limited to forthwith deposit an initial amount of Rs. 50 Crore, with the District Magistrate, Vishakhapatnam, which will abide by further orders of this Tribunal. The amount is being fixed having regard to the financial worth of the company and the extent of the damage caused."
The NGT has also constituted a five-member committee to look into the matter and file a report before the Tribunal. The Committee will comprise of the following members:
  • Justice B. Seshasayana Reddy, Former Judge, A.P. High Court; - (Online till he is able to reach Vizag); 
  • Prof. Ch V Rama Chandra Murthy, Former Vice Chancellor, Andhra University, Vizag; 
  • Professor Pulipati King, Head of Chemical Engineering Department, Andhra University, Vizag; 
  • Member Secretary, CPCB (Online, if travel is restricted due to Covid-19);
  • Director, CSIR-Indian Institute of Chemical Technology (Online, if travel is restricted due to Covid-19); 
  • Head, NEERI, Vizag.

UK Court Rejects Fugitive Economic Offender Vijay Mallya's Appeal Against Extradition Order

UK Court Rejects Fugitive Economic Offender Vijay Mallya's Appeal Against Extradition Order

Wednesday, May 6, 2020

Liquor purchase allowed twice a week with a gap of 3 days, Bill should record Aadhaar: Madras HC guidelines for liquor sale amid COVID-19

Limits on alcohol purchase at a time

  • Adding to the prohibition on bulk sales, the Court has said that “not more than two bottles of 750 ml each (including wine, beer etc.) of any one type will be sold to one customer at a time."
  • Those paying through approved online modes may purchase two bottles a day as detailed above.
  • Those without mobile/smart phones or online payment apps can purchase only one bottle a day.
  • The customer cannot make purchase of liquor more than twice a week and with a minimum gap of three days.

Cash payment prohibited unless customer does not have digital pay facilities

  • To avoid unnecessary malpractices of over charging through cash payments and to encourage digital payment, the payment for liquor purchase should be made through approved E-payment applications like RuPay, Bhim, Google Pay etc. which can be made available to all smart phone holders and easily assumed in shops.
  • The Court added “the payment through these banking channels will not only keep a track and check on the sale of liquor, but is also likely to prevent those who do not intend to pay through known and approved sources.”
  • To encourage digital payment and online booking, the Court has also directed that those who book liquor and make the online payment will be permitted to buy up to two bottles of one type of liquor a day.
  • Those who do not make online payments and who do not book orders online, as they may not have such mobile phone facilities, will be allowed to purchase only one bottle of 750ml in a day based on the tokens issued to them.
  • Cash payment is prohibited save for those who do not have mobile facilities to make online payment. This was in view of a submission that there were over 7,000 MRP violations booked by the State in the last ten months.
  • The Court also noted that cash payment would not be a justified course of action in COVID-19 times.
  • The State of Tamil Nadu and the TASMAC authorities have also been directed to consider online methods of liquor sale with online payment, by employing the issuance of online tokens coupled with time slots for purchase. This was suggested as a measure to avoid unnecessary crowding in TASMAC/liquor outlets.

Aadhaar, name, address of purchaser to be recorded in Bill

  • The Bill of sale should include the “name, address and Aadhaar number” of the customer.
  • The Court has added that “if any sale is found to be made in violation of this direction and such fact is brought to the notice of this court, that shop in question will be immediately closed and will not be allowed to be reopened, except by the specific orders of the Court.”
Other directions include the Court's reiteration that bars attached to retail vending shops will not be permitted to function. The entry point to such bars will be closed and sealed. Drinking liquor in public places is prohibited.

Saturday, May 2, 2020

‘Ramayan’ beats GoT to become world’s most viewed TV show

Aired again after over three decades on popular demand as most of the 1.3 billion population in India have been sitting at home since March 25 due to the national lockdown, Ramanand Sagar’s epic “Ramayan” of the late 1980s has set a world record by becoming the highest viewed entertainment program globally. “Rebroadcast of Ramayana on Doordarshan smashes viewership records worldwide, the show becomes most-watched entertainment show in the world with 7.7 crore viewers on 16th of April,” said a tweet of DD National.
With the record of 7.7 crore viewership in a day, Ramanand’s epic show has overtaken the popular “Game Of Thrones” in terms of viewership. The final episode of “Game of Thrones” single-night viewing recorded 1.93 crores tuning in to watch the finale.

105-year-old coop bank’s licence cancelled by RBI

Reserve Bank of India (RBI) has cancelled the licence of the 105-year-old CKP Co-operative Bank with effect from April 30 and has told registrar of cooperative societies to initiate winding up proceedings and appoint a liquidator for it.
The central bank order came after years of effort to get the bank back on rails through the recovery of bad loans. On liquidation, every depositor will be entitled to repayment of deposits up to Rs 5 lakh from Deposit Insurance and Credit Guarantee Corporation (DICGC). This is the first time RBI is triggering the higher deposit insurance limit, which came into effect after the Budget in February 2020.
The bank’s website said its deposits stood at Rs 485 crore as on November 2019, while loans outstanding were Rs 161 crore. It had a negative net worth of Rs 239 crore due to defaults. It had eight branches across Mumbai and Thane and was placed under RBI directions in 2012..
“The bank’s financial position is highly adverse and unsustainable. There is no concrete revival plan or proposal for a merger with another bank. Credible commitment towards revival from the management is not visible,” RBI said. “Hundreds of depositors and shareholders want the bank to be revived. I have been approached by many of them, and we want more time, as the bank can be revived. We plan to approach the authorities, including RBI,” said Vishwash Utagi who is coordinating efforts to rescue the bank.
“The bank cannot pay present and future depositors, thereby not complying with the law,” RBI said. RBI officials said the bank could not be allowed to restart as it did not have minimum required capital adequacy and reserves, and there was no earning potential.
An RBI spokesperson said the bank’s affairs were being conducted in a manner detrimental to public interest and interest of depositors, and the general character of bank management was prejudicial to the interest of depositors and public interest.

Friday, May 1, 2020

Tax Authorities Can't Give Their Own Interpretations To Legislative Provisions On Perception Of Trade Practices : SC

The Supreme Court has observed that tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practices.

Based on this, the court held as illegal the circulars issued by the Rajasthan Commercial Tax department, which stated that goods imported from other states will be regarded as 'constructively delivered' after a reasonable period of lying with the transporter in the imported state.

Observing that the department had no authority to prescribe such cut-off date for termination of inter-state transit, the SC held that there is no concept of 'constructive delivery' of goods under the Central Sales Tax Act, 1956, and that the inter-state movement of goods will terminate only when the actual physical delivery is taken.

The case (Commercial Tax Officer vs M/s Bombay Machinery Store) pertained to the interpretation of Section 6(2) of the Central Sales Tax Act.

READ FULL JUDGEMENT

Thursday, April 30, 2020

Twitter-SC refused to intervene

The Supreme Court refused to intervene in a plea seeking for directions to Twitter for removal of communal hashtags on the social media platform and directed the Petitioner to approach Telangana High Court instead. 





The petition, filed by Advocate Khaja Aijazuddin, avers that hashtags on Twitter, such as #IslamicCoronavirusJihad, #NizumuddinIdiots, #TablighiJamaatVirus and others, which are trending on the social media platform have the ability to insult the religion and may also disturb the communal harmony of the country. 


The Petitioner, being aggrieved by the nature of attaching the religion to the pandemic on Twitter, seeks for directions to put an end to the "illegal trending on the Social Network" and to restrain the sites from carrying messages which might hurt or insult the feelings of a particular community.


A Bench comprising of Chief Justice of India SA Bobde and Justice Aniruddha Bose heard the matter and directed the Petitioner to approach the Telangana High Court for proper adjudication of the issue involved. 


The Petitioner insisted that the Apex Court was equally empowered under the law to adjudicate the issue, however, the Bench did not agree with the submission. 

CJI Bobde remarked, 


"How can the Court stop this? You are saying that people are saying wrong things on Twitter. This is like saying that people are saying wrong things on phone. How can we direct MTNL?"


The Petitioner informed the Bench that he was merely seeking for directions to the platform to drop the hashtags which were inflammatory in nature. 
The Court refused to intervene in the matter and allowed the Petitioner to withdraw the plea with the liberty to approach the Telangana High Court.

Monday, April 27, 2020

SC Upholds The Constitutional Validity Of Rule Empowering RAW To Compulsorily Retire Officers


Read Full Judgment


Taking a strong exception to "improper handling" of the complaint of sexual harassment made by a former employee of the RAW, the Supreme Court on Friday directed the Union of India to pay "constitutional compensation" to the tune of Rs. 1,00,000/- for "impinging upon the Fundamental Rights of the Petitioner".

A bench of Justice AM Khanwilkar and Justice Dinesh Maheshwari noted that the Petitioner was subjected to "insensitive and undignified circumstances" by the organization which constituted an Internal Complaints Committee in accordance with the guidelines laid down in Vishaka and Others v. State of Rajasthan and Others, after a delay of three months.

While the Committee concluded that the allegations of sexual harassment could not be proved, the court observed,

"In the present case, the petitioner had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. Regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had clearly impinged. Taking an overall view of the circumstances, we consider this to be a fit case to award compensation to the petitioner for the stated violation of her right to life and dignity, quantified at Rs.1,00,000/-."

The Petitioner had made complaints of sexual harassment against her seniors, Ashok Chaturvedi, the then Secretary in charge of the organisation and Sunil Uke, the then joint secretary.

She had alleged that the charged officers subjected her to harassment by asking her to join the sex racket running inside the Organisation for securing quicker promotions and upon refusal to oblige, she was subjected to persecution.

The court noted that the Organisation responded to the allegations of sexual harassment after a gap of almost three months by constituting a Complaints Committee which did not consist of a "third party as a representative of an NGO or other body who is familiar with the issue of sexual harassment", as predicted by the guidelines given in Vishaka (supra).

Subsequently, the Committee was re­constituted with the addition of Dr. Tara Kartha, Director, National Security Council Secretariat (NSCS), which ultimately submitted that the allegations of sexual harassment were not proven against Sunil Uke.

During this period, however, the court noted, there were glaring incidents of violation of the fundamental rights of the Petitioner, whose complaints of sexual harassment were met with "procedural ignorance" and "casual attitude" of her seniors in the department.

The bench observed that there were "unwarranted attacks" on the Petitioner's psychological status, clearly in violation of her right to life with dignity.

In these circumstances, the Court recalled,

"The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of the actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace."

The bench observed that the scheme of the 2013 Act, Vishaka Guidelines, and Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) predicates that a "non-hostile" working environment is the basic limb of dignified employment.

The present case, the bench averred, is replete with a lack of sensitivity on the part of Secretary (R) qua the complaint of sexual harassment. "To wit, time is taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution," it held.

The bench thus ordered the Union of India to compensate the Petitioner, for subjecting her to a hostile work environment, denying timely representation before a Complaints Committee, and violating her right to life with dignity.

"A priori, when inaction or procrastination (intentionally or otherwise) is meted out in response to the attempt of setting the legal machinery in motion, what is put to peril is not just the individual cries for the assistance of law but also the foundational tenets of a society governed by the rule of law, thereby threatening the larger public interests. The denial of timely inquiry and by a competent forum inevitably results in denial of justice and violation of fundamental right," the court held.

However, the Bench has upheld the RAW's order of compulsory retirement passed against the appellant/petitioner.

In this case, the bench was also confronted to decide the Constitutional validity of Rule 135 of the RAW (Recruitment, Cadre and Services) Rules, 1975, which gives power to the Central government to voluntary retire RAW Officers whose identity is exposed or compromised.

While upholding the same, the bench remarked, "Exposure of an intelligence officer could be hazardous not only for the Organisation but also for the officer concerned."