Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

The S.I. had furnished an information to A.T.S. that some anti-national/anti-social elements and religious organizations, on the dictate of ISI and foreign organizations, have indulged in getting the peoples converted in Islam by getting funds from foreign countries for this purpose. Such anti-national/anti-social elements have targeted the people by creating and promoting rumor about other religion by giving hatred speech, by insulting the religion and religious feelings of a class of citizens with deliberate and malicious intention. It also alleged that such anti-social and anti national have targeted the peoples of weaker sections of the society, children, women and people belonging to Scheduled Caste and Scheduled Tribes etc. During interrogation it came out that accused, who is a converted Muslim, was involved in getting the citizen of another religion converted to Muslim religion on large scale and about 1000 non-muslims have been converted and married with muslims, it also came out that accused and his associates are running an organization, namely, Islamic Dawa Centre for the said purpose of conversion and huge fund is being provided to Islamic Dawa Centre from different sources including foreign countries. It also came out that students of deaf and dumb school, namely, NOIDA Deaf Society have been converted in illegal manner by practicing misrepresentation, allurement and fraudulent means.

Counsel for appellant argued that appellant is not the member of any association nor involved in any crime and he had been falsely been roped in the crime in question without any evidence.

The Court after considering the facts and circumstances of the case, particularly the fact that the Investigating Officer, after due investigation, has found cogent and clinching evidence against the appellant that with the connivance of co-accused, appellant was involved in anti-national activities of conversation by misusing his official position while working in Sign Language Training and Research Centre, New Delhi as Interpreter found that there were no good grounds to grant bail to the appellant.

The criminal appeal was dismissed.[Irfan Shaikh v. State Of U.P., 2022 SCC OnLine All 195, decided on 25-03-2022]


Counsel for Appellant :- Furkan Pathan, Aarif Ali, O.P. Tiwari

Counsel for Respondent :- Mr S.N. Tilhari, G.A


Suchita Shukla, Editorial Assistant has put this report together 

Patiala House Courts, Delhi
Case BriefsDistrict Court

Patiala House Courts: In a matter for grant of custody parole, Dharmender Rana, ASJ-02, held that, merely because the accused is Muslim and governed by personal laws, he cannot be debarred from availing rights conferred upon him by Juvenile Justice (Care and Protection of Children) Act, 2000.

Applicant moved an application for grant of custody parole on the ground that he is required to visit the office of Tehsildar for signing adoption papers.

Additional PP for the State opposed the application stating that in Islam, adoption is not legally permissible and thus the very ground for custody parole is specious. Further, it was submitted that the personal laws are applicable in issues related to adoption and thus the application deserved to be dismissed.

Counsel for the defence relied upon the Supreme Court decision in Shabnam Hashmi v. Union of India, WP(Civil) No. 470 /2005, to contend that although under personal rules, adoption is not permissible in Islam but under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, even a Muslim is entitled to adopt a child and the rights of the accused cannot be negated on the ground that he is facing trial.

Decision

Court concurred with the defence counsel that merely because the applicant/accused happens to be Muslim and governed by personal laws on various issues, he cannot be debarred from availing the rights conferred upon him by general and benevolent legislation like Juvenile Justice (Care and Protection of Children) Act, 2000.

In view of the above, the instant application was allowed.

Hence, the Jail Superintendent was requested to take the applicant on custody parole to the office of Tehsildar.[State v. Ashabuddin, FIR No. 55 of 2013, decided on 28-3-2022]


Advocates before the Court:

Sh. Irfan Ahmed, Ld. Addl. PP for State

Ms. Qausar Khan, Ld. Counsel for applicant/accused Ashabuddin.

Case BriefsForeign Courts

Another one to read, from the Foreign Court, now 6 days have passed in a very interesting matter wherein a question arose in Karnataka High Court on the wearing of “headscarf” from a Government Order, let’s read this decision from the year 1994, where a government official was asked not to wear ‘purdah’.


In this matter, a woman used to wear a black ‘purdah’ as a part of her daily attire during office hours and the said ‘purdah’ used to cover the whole o her body from head to foot, leaving only a slit in front, exposing her pair of eyes.

The crux and focus of the issue in the matter arose when a Government Order was issued pertaining to the dress code for civil servants, as per which the women officers were prohibited from wearing jeans, slacks, shorts and any dress which covered the face during office hours.

In view of the said circular, the woman was asked not to wear something which would cover her face, but she continued wearing the attire during work on the ground that as a Muslim, she was required by the Quran and hadith of the Prophet to cover her face and not to expose it in public.

The woman was dismissed from her service for not following the rules pertaining to the dress code for civil servants.

The counsel who was representing the woman submitted that by refusing to allow her to wear the purdah, her constitutional right under Article 11(1) to profess and practise her religion was infringed.

Article 11(1) of the Constitution guarantees the freedom of religion, where every person has the right to profess and practice his religion. However, such a right is not absolute.

Supreme Court of Kuala Lumpur (Federal Court of Malaysia) deciphered that such prohibition as stated in the Government Order did not affect the constitutional right to practice her religion.

To elaborate its reasoning, Bench expressed that it accepted the opinion of Dato’ Mufti Wilayah Persekutuan that Islam as a religion does not prohibit a Muslim woman from wearing, nor requires her to wear a purdah. Secondly, the Court noted that,

“…there seem to be a myth or misconception by certain groups of Muslim in Malaysia regarding the wearing of purdah which covers the entire face except the eyes. They believe that it is one of the Islamic injunctions which must be followed strictly.” 

“It is noted that purdah in its present form has not been specified in the Holy Quran. However, the Holy Quran uses the word ‘hijab’ meaning a screen or covering.”

Observing the above, in the opinion of the Court wearing purdah had nothing to do with the constitutional right of the aggrieved woman to profess and practice her Muslim religion.


Details of this case: Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services Commission, Malaysia, Civil Appeal No. 01-05-92, decided on 5-8-1994


Also Read


To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

Did You Know? What Bombay High Court held when a Muslim girl raised the issue that asking her not to wear a “headscarf” in school violates her fundamental right under Article 25 of the Constitution of India?

https://www.scconline.com/blog/post/2022/02/18/did-you-know-that-3-minor-muslim-boys-were-expelled-from-school-for-not-following-dress-code-and-for-wearing-serban-turban-in-malaysia/

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S.Manikumar, CJ., and Shaji P. Chaly, J., addressed the issue of disparity shown by the State regarding grant of scholarship to the minority community in the State. The Bench held that,

“The orders passed by the State Government viz., Exhibits P2, P3 and P4 show that clear discrimination is shown by favoring a particular minority community by providing scholarships in the ratio of 80:20 i.e., 80% to Muslims and 20% to the Latin Catholic Christians and Converted Christians, which is not the letter and spirit of the provisions of the Act, 1992 and the Act, 2014. Moreover, the mandates contained under Articles 14 and 15 of the Constitution of India are clearly violated by the State Government in the matter of the award of scholarships.”

Factual Fulcrum of the Case

The Union Government under the Prime Minister’s New 15 point programmes for the welfare of minorities had announced scholarship schemes for students from minority communities. On the basis of the scheme formulated, Scholarships were to be given on merit cum means basis. The petitioner, a member of Roman Catholic community, one of the minority communities, contended before the Court that while implementing various schemes in the State of Kerala there was marked discrimination favouring one minority against the other without any rationale. Therefore, under the cover of minority rights, the State government was supporting a particular section.

The predominant contention advanced by the petitioner was that, contrary to the said scheme, without any rationale, the State Government issued Exhibit P4 order bearing dated 08-05-2015 that reservation among the Muslims and other minority communities will be in the ratio of 80:20 i.e., 80% to Muslim Community and 20% to Latin Christians and Converted Christians. It was further stated that 30% of the seats shall be reserved for girls. Therefore, the petitioner contended that the fixation of ratio was arbitrary, unjust and illegal and accordingly violative of Articles 14 and 15 of the Constitution of India. Therefore, according to the petitioner, it is clear

Disparity among Equals

In Exhibit P2, the General Administration Department (Minority Cell) stated that on the basis of the study conducted by Paloly Muhammed Kutty Committee regarding the implementation of Justice Rajindar Sachar Commission report in Kerala, a minority cell was formed and started functioning in the Secretariat. Exhibit P3 order specified that on the basis of the report of the committee specified above, Government had decided that the Latin Catholics and Converted Christian girl students were only permitted to get 20% of the total number of scholarships/hostel stipends, which were given to Muslim girl students and further that, the number of scholarships/hostel stipends, which were given to Muslim girl students would continue as Rs.5000/- and Rs.2000/- respectively. The crucial aspect therein is that the reservation among Muslims and other minority communities was in the ratio 80:20 and 30% of seats would be reserved for girl students.

Constitutional and Statutory Mandate

Section 2(c) of the National Commission for Minorities Act, 1992 define ‘minority’ for the purposes of the Act to mean a community notified by the Central Government. It was undisputed that the Central Government had notified six religious communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains, in the gazette of India. On a reading of section 9 and section 2(c) of the Act, 1992 and Kerala State Commission for Minorities Act, 2014 along with the notification so issued, it could be clearly seen that the functions of the Commission should govern the overall development of the minority communities as such without discriminating by and between the minority communities so identified. Thus, the Bench opined,

“The National Commission and the State Commission are not entitled to segregate such backwardness among the minorities so as to protect the interests of any particular minority.”

Basically, the rights available to minority communities stem out from Article 29 of the Constitution dealing with protection of interest of minorities. A conjoint reading of Articles 29 and 30 makes it clear that while granting any aid by the State to educational institutions the State should not discriminate against any educational institution on the ground that it was under the management of a minority whether based on religion or language, which in fact clearly translate the true intention of the framers of the Constitution.

Findings of the Court

The Bench opined that was clear from the 2011 census that the total population of minority communities in Kerala was 45.27% out of which 58.67% was Muslims and 40.6% was Christians and the balance 0.73% constituted other minority communities. The Bench remarked,

“There is nothing wrong in the State Government providing facilities to weaker sections of the community, but when it comes to dealing with the notified minorities, it has to treat them equally, and it is not vested with any powers to treat them unequally, which is quite discernible from the provisions of the Constitution and the laws discussed above.”

Relying on the decision of the Supreme Court in Chinnaiah v. State of A.P., (2005)1 SCC 394, wherein the Court had considered the issue with respect to sub-classification among the Scheduled Castes and Scheduled Tribes and held that, “except for a limited power of making an exclusion or inclusion in the list by an act of Parliament, there is no provision either to sub-divide, subclassify or sub-group the castes which are found in the presidential list of Scheduled Castes”, the Bench held that,

“State is indulging in providing scholarship to the Muslim minority community at 80%, which according to us, is an unconstitutional act and unsupported by any law. Mere executive orders issued by the State Government cannot overreach the provisions of the Minority Commissions Acts, 1992 and 2014, and the imperatives contained under the provisions of the Constitution of India discussed above.”

Verdict

In the above backdrop, the Bench held that the action of the State Government in sub-classifying the minorities by providing merit-cum-means scholarship at 80% to Muslim community and 20% to the Latin Catholic Christians and Converted Christians could not be legally sustained. Hence, the impugned orders were quashed and the State Government was directed to pass requisite and appropriate orders providing merit-cum-means scholarship to the notified minority communities in accordance with the latest population census available with the State Minority Commission.[Justine Pallivathukkal v. State of Kerala, 2021 SCC OnLine Ker 2551, decided on 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Sr. Adv. Raju Joseph, Adv. J.Julian Xavier, Adv. Firoz K.Robin, Adv. Roy Joseph, Adv. Jose. V.V., Adv. Aannies Mathew and Adv. E.Haridas

For the State of Kerala: GP K.V.Sohan, State Attorney P.Vijayakumar, ASGI Haris Beeran and Adv. O.A.Nuriya

Case BriefsHigh Courts

“Prolongation of the trial for over two decades, compounded by the endemic systematic delays, have frustrated the attempts at securing effective justice for the victims.”

Delhi High Court: The Division Bench comprising of S. Muralidhar and Vinod Goel, JJ. while witnessing an appeal in the case of “targeted killings of persons belonging to one minority community” known as the ‘Hashimpura Tragedy’ convicted the 16 accused PAC personnel who were acquitted 28 years after the incident by the trial court and now convicted after 31 years of injustice served to the families of the victims left behind.

The cold-blooded murder despatched to the watery grave of around 42 to 45 men of which 38 did not survive, old and young, all Muslim by the Provincial Armed Constabulary (PAC) was the tragedy of Hashimpura, Meerut. These men were all taken by the PAC personnel in a truck by dividing them into two separate groups which resulted in two different incidents, one taking place at the Ganga Nahar and other at Hindon. In 1987, the said incident took place when paramilitary and military forces had been posted due to the occurrence of riots in Meerut district for riot control and security. Survival of 5 men who witnessed the horrific tale is the reason for the justice served in the present case.

The criminal justice process concerning the murders commenced with the registration of two FIR’s and further, the investigation being handed over to the Crime Branch, Criminal Investigation Department (CB-CID), Uttar Pradesh. Supreme Court by its orders in 2002 and 2007 had transferred the trial of the cases to Delhi. Trial meandered for over 8 years and finally, the judgment on 23-3-2015 was pronounced in which the 16 remaining accused were acquitted. Aggrieved by the acquittal, 3 appeals were filed.

The High Court on noting the submissions including the intervenors (NHRC) along with the trial court’s judgment, concluded its decision by convicting the 16 accused PAC personnel who were acquitted by the trial court due to the non-identification of both the trucks in which 42-45 men were abducted and killed.

“This case points to the systematic failure that results, not infrequently, in a miscarriage of justice.”

The Court stated that “we are conscious that for the families of those killed, this is perhaps too little, too late. They have had to wait for 31 years for justice.” The only basis on which the trial court had acquitted the accused was due to no proof for the truck URU 1493 being used in the incident. The trial court was also not at fault as the benefit of additional evidence as attained by the High Court was not with the trial court and therefore the trial court held that:

“No clinching evidence on record without infirmities on the circumstance relating to identity of the truck and accused persons and therefore, the accused persons cannot be convicted on the basis of scanty, unreliable and faulty investigation which has gaps and holes.”

Nonetheless, the High Court now with the benefit of additional evidence convincingly established the accused persons were very much present with the truck URU-1493 in which the victims were abducted and taken away. Accepting the suggestion of NHRC, the court recommended that every SLSA should designate a Nodal Officer to address the needs of the victim families in the case of custodial killings or state excesses.

Accordingly, the appeal was disposed of by convicting the abovesaid accused and sentenced them to life imprisonment for the offence punishable under Section 302 read with Section 120-B IPC along with Sentence for other offences which were directed to run concurrently. [Zulfikar Nasir v. State of U.P.,2018 SCC OnLine Del 12153, decided on 31-10-2018]

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: A nine-Judge Bench, by a majority of 5:4, upheld the travel ban on people from five Muslim-majority countries imposed by President Donald J. Trump (vide Proclamation No. 9645). John Roberts, CJ., while delivering the opinion of the Court, held that the Government has set forth a sufficient national security justification to survive rational basis review.

In September 2017, the President imposed entry restrictions on nationals from eight foreign states whose system for managing and sharing information about their nationals were inadequate according to the President. A review system was undertaken by the Department of Homeland Security which identified those foreign states having deficient information sharing practices and posing national security concerns. Pursuant to the review, the Acting Secretary of Homeland Security recommended entry restrictions on certain nationals from eight foreign states (Muslim majority countries). After consultations with multiple Cabinet Members, the President issued the Proclamation exercising authority under Sections 1182(f) and 1185(a) of Act No. 8 of United States Code (USC). Plaintiffs (respondents herein), the State of Hawaii and Muslim Association of Hawaii, challenged the Proclamation as violating Immigration and Nationality Act (INA) and Establishment Clause. The District Court of Hawaii (and also of Maryland) granted a nationwide preliminary injunction barring the enforcement of the restrictions, which was affirmed by the Ninth Circuit Court of Appeal.

However, the Hon’ble Supreme Court reversed the order of the lower courts and held that the President has lawfully exercised the broad discretion granted to him under the above-mentioned Section 1182(f) to suspend the entry of aliens into US; the provision vests the President with ample power to impose such entry restrictions; the sole requirement being that the President ‘finds’ that entry of such aliens ‘would be detrimental to the interests of the United States’; the President had undoubtedly fulfilled that requirement. The Hon’ble Court dismissed all the challenges put forth by the respondents including the allegation that primary purpose of the Proclamation was religious animus. It was observed, admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control’. Further, the Proclamation was premised on national security concerns and said nothing about religion; entry restrictions on nationals of Muslim-majority countries were limited to those nations that were previously designated by the Congress as posing national security risks. The Court noted three features, firstly, since the imposition of the ban, three countries have been removed from the list; secondly, the Proclamation contains various exceptions to the restrictions; thirdly, it contains a waiver program for all foreign nationals seeking entry as immigrants and non-immigrants. Finally, observing that it cannot substitute its own assessment for the Executive’s predictive judgments on such matters, the Hon’ble Supreme Court upheld the entry ban which is now applicable on five out of original eight Muslim-majority countries. [Trump v.  Hawaii, 2018 SCC OnLine US SC 28 : 585 US ____ (2018), decided on 26-06-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Anand Byrareddy, J. allowed a criminal petition filed by a Muslim male holding that he was entitled to invoke the provisions of Protection of Women from Domestic Violence Act 2005 (DV Act).

The petition was filed under Section 482 CrPC by the petitioner, a male. Being aggrieved by certain acts of his wife and her family, the petitioner invoked the provisions of DV Act. Learned City Civil and Sessions Judge was not impressed by the action brought on behalf of the petitioner as in his opinion, the Act was heavily loaded in favor of women and it does not contemplate any male member being aggrieved by domestic violence. Feeling aggrieved, the petitioner approached the High Court.

In order to settle the issue, the High Court relied on the Supreme Court decision in Hiralal P. Harsora v.  Kusum Narottamdas Harsora, (2016) 10 SCC 165, wherein the Hon’ble Court had struck down a part of Section 2(a) of DV Act holding it to be violative of Article 14 of the Constitution, and the phrase ‘adult male’ as appearing in Section 2(q) stood deleted. The High Court observed that if the said sub-section is read after deletion of the expression ‘adult male’, it would appear that any aggrieved person, in terms of DV Act, whether male or female, is entitled to invoke provisions of the Act. Having stated thus, the High Court held that petitioner’s complaint could not have been trashed merely on the ground that the Act does not contemplate provisions for men. The petition was accordingly allowed. [Mohd. Zakir v. Shabana, Crl. Petition No. 2351 of 2017, dated 18.04.2018]

Update: By an order dated 28.04.2018, Byrareddy J. withdrew the above-mentioned order and restored the petition to the file.

The order reads as – “Notwithstanding Section 362 of Cr.P.C., the order rendered by this Court earlier on 18.04.2018 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to web host the order passed earlier and to take note of the fact that the order is withdrawn.” [Mohd. Zakir v. Shabana, Crl. Petition No. 2351 of 2017, dated 28-04-2018]