Case BriefsDistrict Court

Patiala House Court, New Delhi:  While deciding the instant bail application of student activist Safoora Zargar, who was accused of giving inflammatory speeches, thereby inciting riots and violence in North East Delhi and was arrested and taken into custody under the provisions of the Unlawful Activities (Prevention) Act, 1967 [hereinafter UAPA], Dharmendar Rana, ASJ, refused to grant her the bail. Furthermore, pointing out that although no direct violence is attributable to the applicant/ accused, still she cannot shy away from her liabilities.

The Court said that, “When you choose to play with embers, you cannot blame the wind to have carried the spark bit too far and spread the fire”. However, taking note of the accused/ applicant’s pregnancy, he requested the Jail Superintendent to provide adequate medical aid and assistance to her.

The applicant/accused is a student of Jamia Milia University. It was alleged by the prosecution that she delivered an inflammatory speech at Chand Bagh area of North East Delhi. Aftermath of which, riots erupted leading to a great loss of life and property. As per the submissions of the Additional Public Prosecutor, Irfan Ahmed, there is enough evidence available on record to connect the applicant/ accused to the riots. It was further submitted that Section 43D (5) of the UAPA places a statutory restriction on the power of the Courts to release the applicant/ accused on bail. The prosecution further pointed out that certain incriminating materials were seized by the police and if this recovery is viewed against the backdrop of the inflammatory speeches given by the applicant/ accused and statements of the witnesses, then it is clear that the riots were a result of a conspiracy to overawe the government and disrupt the normal functioning of the capital city. Thus under these circumstances, the applicant- accused should not be granted bail.

Meanwhile, counsel for the applicant/accused, Sanya Kumar, contended that the applicant/accused is an innocent woman who has a contrary opinion on the Citizenship Amendment Act (hereinafter CAA) and had simply exercised her fundamental right under Article 19(1)(a) of the Constitution by being involved in a peaceful protest against the CAA. She further pointed out to the court that the applicant/accused delivered her speech on 23-02-2020 and riots started in the afternoon of 24-02-2020. The evidences clearly suggest that the applicant was not present on 24-02-2020, therefore the alleged violence cannot be attributed to her and the provisions of the UAPA have been wrongly invoked against her. The counsel also contended that the applicant/ accused should be granted bail on humanitarian grounds as she is 21 weeks pregnant and suffers from various other medical complications and given the spread of Covid-19, the applicant/ accused is particularly vulnerable.

Perusing the contentions of both the parties, the Additional Sessions Judge observed that freedom of speech and expression is indeed a foundation for strong and vibrant democracy, however the same is not an absolute right and is subject to the reasonable restrictions laid down in Article 19(2) of the Constitution. Considering the provisions of the UAPA, the Court observed that any activity which creates a disorder and disturbance of law to such an extent that an entire city is “brought down to its knees”, constitutes an ‘unlawful activity’ under Section 2(o) of the UAPA. Concurring with the contentions of the prosecution, the Court noted that it cannot ignore the material available on record which clearly suggests that there was a conspiracy to create an unprecedented scale of destruction and breakdown of law and order. Finding no merits, the Court thus dismissed the bail application. [State v. Safoora Zargar, Bail Application No. 1119/2020 , decided on 04-06-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Ajit Kumar, JJ., while addressing a Public Interest Litigation held that,

Azan may be an essential and integral part of Islam but recitation of Azan through loud­ speakers 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 of the Constitution of India.”

Background

Member of Parliament (Lok Sabha), Afzal Ansari wrote a letter stating that fundamental right to religion of people at Ghazipur may be protected and State Administration may be directed to permit the recitation of Azan by only one person “Muezzin” from respective mosques of District Ghazipur, since it does not violate any of the directives issued in view of COVID-19 containment.

Senior Advocate of Supreme Court of India, Salman Khurshid also approached Allahabad High Court through Advocate Syed Mohd, Fazal to seek permission of recitation of Azan for the Muslims at Farrukhabad, Hathras, Ghazipur as Azan recitation is an integral part of Islam.

With the prayer of similar relief, Senior Advocate S. Wasim A. Qadri also wrote a letter.

In view of the above, a Public Interest Litigation was filed by Afzal Ansari .

Relief sought was that,

Muslims in the Districts Ghazipur and Farrukhabad, may be permitted to recite Azan through “Muezzin”, by using sound amplifying devices and the restrictions imposed by the administration are wholly arbitrary and unconstitutional since they do not, in any way, violate the guidelines issued for the containment of the pandemic.

Further it was submitted that pronouncement of Azan is not a congressional practice but is simply an act of recitation by a single individual which in no manner violates any of the conditions of lockdown.

Petitioner also added that caretaker of the Mosque is usually responsible for the recitation of Azan who resides in the mosque, in other cases person assigned the duty of recitation Azan is the closes available person, in both the stated cases, no violation of lockdown norms would be observed.

Also ban on Azan through sound amplifying devices is a violation of fundamental right under Article 25 of Constitution of India

Azan is integral to religion and in no way undermines the society’s collective response to the pandemic.

-Senior Advocate, Salman Khurshid

Additional Advocate General while appearing on behalf of the State, supported the Counter Affidavit filed by the Government, wherein it was submitted that, Azan is a call for congregation to offer prayers at the Mosque which clearly is a violation of COVID-19 guidelines.

A meeting was also convened by District Magistrate, Ghazipur on 24th march, 2020 which was attended by several religious leaders wherein it was decided that no religious activities will be conducted during the period of lockdown at any public place of worship and no loudspeakers/amplifiers would be used for the said purpose.

“In the new guidelines issued by Government in view of lockdown, it was stated that all religious places/places of worship shall be closed for public. Religious congregation strictly prohibited.”

Further it was submitted that,

During the period of lockdown with cooperation of religious groups no loud speakers/amplifiers have been used during the festivals like Navratri, Ram Navmi, Hanuman Jayanti and Parasu Ram Jayanti. People of different religions have been following the guidelines and no religious activities are being carried out at any religious place of worship or public place, and no loudspeakers have been used since 24.03.2020

Additional Advocate General stated that right contained under Article 25 of the Constitution of India is subject to public order, morality, health and Part III of the Constitution of India. Rule 5 of The Noise Pollution (Regulation and Control) Rules, 2000 also states that a loud speaker or a public address system shall not be used except after obtaining written permission from the authority.

Bench Analysis & Decision

While referred to the decision of Calcutta High Court in Moulana Mufti Syed Mohammed Noorur Rehman Barkati v. State of W.B.,wherein it was held that,

use of microphone and loud­speakers were not an essential and an integral part of Azan.

There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.

In the Supreme Court decision of Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282, it was held that

“No religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.”

Court also observed the fact that petitioner’s counsel could not explain why the Azan could not be offered without the use of amplifying devices.

There is no such religious order which prescribes that Azan can be recited only through loud­speakers or by any amplifiers. Azan is certainly an essential and integral part of Islam but use of microphone and loud­speakers is not an essential and an integral part thereof.

Thus, Court for the above also stated that Right to religion by no stretch of imagination, ought to be practised, professed and propagated saying that microphone has become an essential part of the religion.

Azan may be an essential and integral part of Islam but recitation of Azan 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 of the Constitution of India, which is even otherwise subject to public order, morality or health and to other provisions of part III of the Constitution of India.

Another point of significance to be noted is that, until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound amplifying devices.

Hence it is ruled that while the right to offer Azan by voice, without the use of sound amplifying devices is a right protected under Article 25 of the Constitution. However, the right to recite Azan though sound amplifying devices is not protected under Article 25, since it is not an integral part of Islam.

Further, the Court stated that,

Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic­ Covid­-19.

With the above observations, PIL stands disposed of. [Afzal Ansari v. State of U.P., 2020 SCC OnLine All 592 , decided on 15-05-2020]

Case BriefsCOVID 19High Courts

They that sleep resemble the dead; likewise, they that drink are no other than poison eaters.

Couplet 926 of Chapter 93 titled “not drinking palm wine”

Madras High Court: A Division Bench of P.N. Prakash and B. Pugalendhi, JJ. addressed a petition with regard the legality and validity of decision of the State Government to re-open the State-owned TASMAC shops for retailing vending of liquor to public.

In the evening of 6th May, 2020, Division Bench of this Court had imposed further restrictions for vending liquor in the TASMAC outlets.

Bench in the present case observed that,

“Armed with the nod of the Division Bench, the State, like Julius Caesar, turning deaf ears to the caution of the soothsayer “Beware Ides of March”, went ahead with re-opening the TASMAC shops on 07.05.2020.”

“Unfortunately, for the State, the incidents that unfurled from 07.05.2020 as a sequel to the re-opening of the TASMAC shops, brought gloom and doom to the citizens. Tipplers in serpentine queues, throwing to wind all social distancing and mask wearing norms, thronged the TASMAC shops least mindful of the scorching May summer. Hell broke loose in some areas as could be seen from newspaper reports and social media footages.”

Further the Court observing the State’s action, also stated that,

“It is indeed sad that in a welfare State, the Government wanted to cash in on the weakness of the tipplers by enhancing Excise Duty on liquor by 15%.”

Court also referred to the below stated news items:

“08.05.2020 (Page no.3):

An 18 year old girl who attempted suicide by immolating herself after her father picked up a quarrel under the influence of alcohol, is battling for her life in hospital.

08.05.2020 (page no.4):

3 dead in alcohol induced incidents

09.05.2020 (Page no.3):

Three people were murdered in alcohol-related incidents in Tuticorin, Virudhunagar and Tirunelveli on Thursday night”.

Division Bench of the Court with its Order dated 6th May, 2020 on noting the above incidents and concerns had decided to immediately close down all the TASMAC shops till lockdown was lifted by Government.

Veera Kathiravan placed the WHO guidelines with regard to Alcohol and Home Isolation or quarantine.

Additional Advocate General submitted that WHO guideline was issued to allay the notion prevailing in some quarters the consumption of liquor will protect one from COVID-19 attack.

For the above stated guideline, bench observed that the said guideline, categorically sets out the ill-effects of consumption of alcohol during COVID-19 pandemic.

Additional Advocate General further justified the State’s action on the following grounds:

  • COVID-19 pandemic is not going to abate in the near future and therefore, people cannot be kept in domestic imprisonment indefinitely;
  • economic activities have to be resumed;
  • the Central Government itself has permitted the operation of commercial activities, including liquor sale in a phased manner;
  • the loss of revenue per day to the State exchequer works out to not less than Rs.100 crores and that revenue is needed for fighting the scourge of COVID-19;
  • illicit liquor is being brewed;
  • people of this State are patronising wine shops that are open in the neighbouring States of Andhra Pradesh and Karnataka; and
  • the policy decision of the State cannot be subject to judicial review.

For the above submission, Court stated that, they agree with the, same. Adding to this bench stated that

“on the one hand, the State wants its citizens to develop immunity by consuming Kabasura Kudineer and homeopathy medicines and on the other hand, wants to destroy the immunity by making liquor freely available to the public.”

Continuing with its observations, Court said that,

State was aware that due to lock down, the spread of COVID-19 was controlled in Chennai, but, one day’s re-opening of the Koyambedu vegetable market led to a huge spike in COVID-19 cases in the State. Perhaps, the maxim “Once bitten, twice shy”, seemingly, had little impact on the State.

Liquor shops that were opened in the neighbouring Kerala and far off Mumbai were closed down by those Governments to save human lives, but, alas, this State failed to learn any lesson.

Whatever gains we gathered, thanks to our citizens, who, unlike citizens of certain Western countries, wholeheartedly remained indoors, are bound to get dissipated with the re-opening of the TASMAC shops.

Right of the State to carry on liquor sales via TASMAC shops is not an absolute one, but only, a qualified one under Article 19(1)(g) of the Constitution of India and when that right seeks to trample the right to life guaranteed by Article 21 of the Constitution of India, the former has to give way and remain subservient to the latter.

State cannot be permitted to hide behind the cloak of policy decision when its action is likely to kill people in droves.

A tippler may claim to have a right of self destruction, but, in that process, he cannot destroy others. It is like a person committing self immolation hugging his neighbour.

Not agreeing with State Government’s decision of re-opening the TASMAC shops, Court continued to say that,

When the Government had rightly prohibited entry into places of worship during the lock down period, its decision to allow tipplers to congregate before TASMAC shops, is indubitably antithetical.

Policy decision of the Government is not completely immune from judicial review, especially where it seeks to brazenly violate the fundamental right of the citizens guaranteed by Article 21 of the Constitution of India.

Thus, in complete agreement with the order of Division bench of the court passed on 8th May, 2020, it is directed to close down the TASMAC shops in the Same lines.[A. Bonyface v. Govt. of T.N., 2020 SCC OnLine Mad 983 , decided on 11-05-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Ramesh Sinha, J. directed the District Magistrate, Lucknow and the Commissioner of Police, Lucknow Commissionerate, Lucknow to remove the banners from the roadside containing personal data of individuals who were accused of destroying the public property during Anti-CAA Protests in December 2019.

Privacy is a fundamental human right recognized in the United Nations Declaration of Human Rights. In our country, where privacy is not explicitly recognized as funamental right in the constitution, the Courts have found such right protected as an intrinsic part of life and personal liberty under Article 21 of the Constitution of India.

In the present public interest writ, undertaken by the Court at its own, simple question is, the legitimacy of the display of photographs, name and address of certain persons by the district administration and police administration of the Lucknow through banners. It has been further stated that, banners came up at a major roadside with personal details of more than 50 persons accused of vandalism during a protest in December, 2019. 

Chief Justice of this Court on noticing the injury to right to privacy, directed the registry to register a petition for the writ in public interest.

The main issue about the unwarranted interference in the privacy of people, it would be appropriate to state that admittedly no statutory provisions in that regard were available with the State.

Supreme Court in Malak Singh v. State of Punjab and Haryana, (1981) 1 SCC 420 held that even for history sheeters who have the necessary criminal history the information about the history sheet and the surveillance has to be kept discreet and confidential that cannot be shared with public and there is no question of posting the photographs of history sheeters even at police stations.

Bench stated that, on scaling, the act of the State, there was no necessity required for a democratic society for a legitimate aim to have the publication of personal data and identity.

Thus, in entirety, the action of the State was an unwarranted interference in the privacy of people and the same in violation of Article 21 of the Constitution of India.[In-Re Banners Placed On Road Side In the City of Lucknow v. State of U.P.,  2020 SCC OnLine All 244, decided on 09-03-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of T.V. Nalawade and S.M. Gavhane, JJ., partly allowed the present petition while explaining the significance of few provisions of the Criminal Code of Procedure, 1973.

In the present case, the act of respondents, police officers, of taking search of the house of the petitioner was illegal and that was interference in the privacy of the petitioner and his family. Relief is claimed of compensation of Rs 10 lakhs for infringement of a fundamental right, “Right of Privacy”.

Petitioner contends that during the said search, one Constable had tried to plant a pistol in his house but due to alertness of the petitioner he could not plant such arm. He further adds that while leaving the house threats were given by the police that they would implicate the petitioner in a false crime. Further, he states that, act of the police was infringement into his privacy, violation of his fundamental rights guaranteed under Article 21 of the Constitution of India.

In the earlier order of this Court, Sub-Divisional Police Officer was appointed to make inquiry. Petitioner contends that, Sub-Divisional Officer noticed illegality but did not propose action against the police officers involved in the illegal search. Adding to his contentions, petitioner states that the respondents have nothing to show that they had any information against the petitioner on that night or the prior one.

Counsel for the petitioner mainly submitted that police ought to have obtained search warrant first for taking search of the house of the petitioner and as such warrant was not obtained, the house search was illegal.

In the present matter respondent’s case is that on the basis of some secret information, petitioner was in possession of a firearm illegally and thus the search was taken.

Court’s Analysis and Conclusion [Explained: Provisions of Sections 165 and 166 CrPC]

Court holds that provisions of Sections 165 and 166 CrPC are applicable in a case like the present one.

In Supreme Court’s decision in State v. Rehman, AIR 1960 SC 210, Apex Court laid down that,

“as search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power”

 Provision of Section 165 CrPC is enacted to enable police to take search when there is urgency and when it is not permissible to follow lengthy process, securing search warrant from Magistrate.

 The provision is not restricted to search of what is stolen or believed to be stolen and it permits the police officer to make search for anything necessary for the purposes of investigation into any offence.

It is further noted that, on one hand the provision enables police to take search of the house for investigation of any crime, on the other, it becomes mandatory for police to record reasons as the first step before entering the house.

In respect to the Arms Act, Court stated that it has gone through the provisions of the Arms Act, 1959 as the respondents had submitted that there was specific information that the petitioner was in possession of firearm illegally, for which the Court further stated that nothing in the Arms Act and Rules framed under the Act enable police to take such search by ignoring the provision of Section 165 CrPC.

 Court, adding to its analysis, stated that, while going through the provisions of Maharashtra Police Act also in order to ascertain the powers of police officer nowhere the Act shows that police can bypass the provision of Section 165 CrPC.

Intrusion of Privacy

Court held that as the police officers had entered the house that too in the night time when his family was sleeping which included two ladies and the issues, it would amount to the intrusion into their privacy.

Further, in the present case, respondents were given an opportunity by the Court to show that there was secret information received by police on that night.

“When police officers leave for action, they need to make an entry about their movements in the station diary.”

 Court on noting the circumstances in the present case stated that, record by the petitioner shows that most of the respondents were assigned different duties at different places on that night. All of them came together on that night for this action but no writing is there in respect of secret information and also about the compliance of provision of Section 165 CrPC. Thus Court held that action of the police officers was illegal.

State is liable to pay compensation for the above-stated illegal action. Action of police was not only the infringement into privacy but defamed the entire family.

High Court further came down the relief in respect to the prosecution of police officers which is not possible in the present matter for the following reasons:

Court referred to the provisions of Sections 165 and 166 CrPC. In view of the CrPC provisions, it can be said that search of the house premises was a part of official duty.

Placing reliance on the Supreme Court decision in Anjani Kumar v. State of Bihar, (2008) 5 SCC 248, wherein it was held that, if there is reasonable connection between the act and the discharge of duty by public servant, the act would be ‘official’ to which section 197 of the Cr.P.C. would be applicable.

For prosecution, there is a necessity of sanction under Section 197 CrPC and in view of the facts of the present matter, no further action like direction for the prosecution of the police officers is warranted.

Thus, in view of the above observations of the Court, appeal was partly allowed declaring the search to be illegal. [Dnyaneshwar v. State of Maharashtra, 2019 SCC OnLine Bom 4949, decided on 29-11-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Arun Monga, J. disposed of the writ petition after issuing necessary direction to Superintendent of Police to protect the life and liberty of the petitioners.

A writ petition was issued for the protection of life and liberty as enshrined under Article 21 of the Constitution of India vis-à-vis a conceded violation of Section 5 (iii) of the Hindu Marriage Act, 1955, inasmuch as a girl aged 20 years 9 months and boy aged 20 years and 3 months claim to have married each other having purportedly being in love with each other.

The brief facts of the case were that petitioner knew each other for the last two year and thus they decided to get married but parents of the second petitioner were against their marriage. Petitioner stated that respondents had issued a threat that they will kill the petitioners in order to break their matrimonial tie and hell-bent in ruining their life one way or the other. Thus, the petitioner approached Senior Superintendent of Police but no action was taken by the same.

D.D. Sharma, Counsel for the petitioner stated that they were living in the constant danger as they had every apprehension that private respondents will catch them and carry out their threats and may go to the extent of even committing their murder. Thus the present writ petition was filed by the petitioner in order to seek appropriate orders in the present matter.

The Court opined that a perusal to Section 5 of the Hindu Marriage Act, leaves no doubt that one of the essential condition related to age is not fulfilled, but which does not make the marriage a void marriage. The Court supported the legislative intent after relying on the case of Jitender Kumar Sharma v. State, 2001 (7) AD (Delhi) 785. The Court in this issue suggested that this condition may be satisfied before the appropriate forum if the same is challenged. The Court regarding the issue of personal right and liberty held that Constitutional Fundamental Right under Article 21 of Constitution of India stands on a much higher pedestal. Being sacrosanct under the Constitutional Scheme it must be protected, regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties. It is the bounden duty of the State as per the Constitutional obligations casted upon it to protect the life and liberty of every citizen. Thus it was ordered to Superintendent of Police to verify the content of the petitioner particularly the threat perception of the petitioners and thereafter provide necessary protection qua their life and liberty if deemed fit.[Gurwinder Singh v. State of Punjab, 2019 SCC OnLine P&H 879, decided on 21-06-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of CJ Hrishikesh Roy and A.K. Jayashankaran Nambiar, J. opined that the students could not be compelled to continue in a college which according to their perception was detrimental to their career and laid that there was no reason to interfere with the judgment of the single Judge whereby students were allowed the inter-college transfer.

Respondent student sought inter-collegiate transfer from the Cochin Institute of Science and Technology to another self-financing college under the same university since the amenities and infrastructure in his college were inadequate. But the college principal did not accord permission for the inter-college transfer. Thus, the respondent herein had filed a petition before this Court and a Single Judge Bench[1] allowed the same holding that college could not arbitrarily reject issuance of NOC to students desirous of taking admission into another college/ institute. Aggrieved by the said decision, the appellant-college preferred the instant appeal.

The counsel for the appellant, Anoop V. Nair and M.S. Sandeep Sudhakaran contended that if such inter-college transfer was permitted, the functioning of the appellant college would itself be put to jeopardy as it might possibly adversely impact those opting to continue in the Cochin Institute of Science and Technology.

The Court relied on the judgment of Supreme Court in the case of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, in which it was held that the right of a person to individual autonomy was matter of personal choice and preferences were integral to his dignity and thereby it was his fundamental right under Article 21 of the Constitution of India. It remarked that “freedom to choose the college of his/her choice for pursuit of their studies is according to us, an aspect of the Fundamental Right to privacy, guaranteed under Article 21 of the Constitution.”

The Court held that the appellants had not been able to show any condition either statutory or contractual which obliged a student admitted to their college to necessarily continue their course of study in the same institution and therefore when a student felt that he could secure better education in another college and there was no legal bar in exercise of such option, appellants could not compel the students to continue their curriculum from the same college. Hence, the Court dismissed the appeals for being devoid of merit.[Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800, decided on 04-06-2019]

[1] https://blog.scconline.com/post/2019/06/12/ker-hc-college-cannot-arbitrarily-reject-issuance-of-noc-to-students-desirous-of-taking-admission-into-another-college-institute/

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. set aside the detention order passed by respondent 2-District Magistrate, Baramulla and ordered the detenu to be released from preventive custody.

In the present case, the petitioner had challenged a detention order passed by respondent 2 whereby the petitioner was taken under preventive custody. The respondent had also filed a counter affidavit wherein they resisted the petition by pleading that the detention order was passed by following the procedure under the law.

Learned counsel for the respondent, Asif Maqbool, produced the detention record to lend support to the stand taken in the counter affidavit.

Learned counsel for the petitioner, Mir Shafaqat Hussain, pointed out that the detenu had been shown involved in various FIRs but the fact that he had already been admitted to bail in these FIRs had not been mentioned though the mention of the FIRs was made. This showed that all the circumstances and materials were not examined. A person involved in a criminal case could be detained under the provisions of preventive laws provided there were compelling circumstances to do so. Preventive detention is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, should not be on the ipse dixit of the detaining authority.

While relying on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, it was pointed out that the procedural requirement are the only  safeguard available to the detenu, therefore, the procedural requirement should be strictly complied with, it was the duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If the record suggested that there was non-application of mind, which ipso facto meant that subjective satisfaction was missing.

Due to the cumulative effect of the above discussion, it was held that, the impugned order of detention passed by respondent 2 was not valid. The order was set aside directing that the detenu be released from the preventive custody.[Shahid Ahmad Tantray v. State of J&K, 2019 SCC OnLine J&K 422, decided on 08-05-2019]

Case BriefsHigh Courts

Tripura High Court: A Division Bench of Sanjay Karol, CJ and Arindam Lodh, J. dismissed an appeal filed under Section 19(1) of the Family Courts Act, 1984 against the order of the family Judge whereby the husband was directed to pay pendente lite maintenance of Rs 8000 per month to her wife.

Arijit Bhowmik, Advocate representing the appellant-husband submitted that though the appellant was an employee of ONGC having a salary of Rs 39, 649, however, he received only Rs 19,338 after various deductions. It was prayed that the maintenance allowance may be reduced. per contra, H.K. Bhowmik, Advocate appearing for the respondent-wife submitted that Rs 8,000 per month were minimum to lead a dignified life, which is one of the essential features of Article 21 of the Constitution.

On perusing the record, the High Court found that the wife was forced to stay at her parents’ house. it was noted that there were many bald allegations levelled against her such as she was not interested in having sex with the appellant-husband and that she threatened him to commit suicide. In the Court’s opinion, the allegations were not substantiated by cogent evidence. It was said: “these are the normal wear and tear of marital life and for this, the wife should not be forced to be separated from the appellant-husband. The wife is entitled to lead a life at part the standard of the husband.”

Having considered all the aspects, the court was not inclined to interfere with the order passed by the family Judge. Resultantly, the appeal was dismissed. [Debasish Chakraborty v. Soma Bhattacharjee, 2019 SCC OnLine Tri 159, decided on 29-05-2019]

Case BriefsHigh Courts

Kerala High Court: P.V Asha, J. allowed a petition directing the respondent college to issue NOC to the students applying for transfer to another college as per the rules of the concerned university.

The petitioners, in this case, were students pursuing their engineering course from Cochin Institute of Science and Technology which was a self-funded college. All the petitioners were either in their 2nd or 4th semester and wanted to get themselves transferred to another self-funded college, as their institution had a provision of transferring students before the starting of their 3rd and 5th semester as per the wish of the students and after the issuance of  “No Objection Certificate (NOC)” by the principal. The deplorable condition of the college forced 106 students to file an application for their transfer which the college arbitrarily rejected. Principal of the college was even requested by the parents to issue the NOC but there was no revert. Feeling aggrieved by the act of college, students filed this petition requesting the Court to direct the college to issue the NOC.

Learned counsels for the petitioner D. Kishore and A.C Devasia argued that when the petitioners did not want to continue in the College and the University permitted inter-college transfer, denial of NOC recommendation on their applications was derogatory to their fundamental right to education under Article 21 of the Constitution. They also informed the Court that they apprehend vindictive measures against the students on their continuance in the college as such open declarations were made by the College and that such measures could adversely affect the very future and the career of all these petitioners. Furthermore, they placed their reliance on Kottayam Institute of Technology and Science v. Admission Supervisory Committee for Professional Colleges in Kerala, 2016(4) KHC 620 and argued that the transfer could be allowed even without the recommendation of the Principal of the College, as it was only a matter of procedure and not a necessity. Thus, it was submitted that the petitioners were entitled to get their certificates released for admission in another College.

Learned counsel for the respondent P. Ravindran argued that the petitioners did not have any right for transfer and the College was not under any obligation to grant NOC or to recommend their applications, as the applications were made based on the norms issued by the university which did not have any statutory force. It was argued that the petition itself was not maintainable for enforcement of guidelines. It was also argued that even as per the norms, it was open to the Principal to recommend or not and only if the application is recommended, the petitioners could further process the applications.

The Court observed that the petitioners did not come under any prohibited category and were entitled to get the NOC. It was further observed that “compelling the students, who did not want to continue in a college, could only affect the future and career of the students. An atmosphere without room for apprehensions and conducive to carry on the studies peacefully, was essential and hence it required paramount consideration.” Therefore, the Court ordered the principal of the college to recommend the applications of the petitioners for inter-college transfer within three days of passing of this judgment. It was also made clear that in the event of any delay on the part of the respondent, the opted Colleges was free to act upon and process the applications submitted by the petitioners as if the applications were recommended. Thus, the petition was allowed.[Jisin Jijo v. APJ Abdul Kalam Technical University of Kerala, 2019 SCC OnLine Ker 1691, decided on 31-05-2019]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench of Raj Shekhar Attri, J., allowed a writ petition filed by the petitioners seeking protection from private respondents 4 to 6, since the petitioners apprehend danger to their life, limb and liberty from the hands of private respondents.

The main issue that arose before the Court was whether the petitioners were entitled to get protection on the basis of apprehension of danger.

The Court observed that the Constitutional philosophy completely eradicates discrimination on the grounds of castes, creed, religion, domicile etc. It has propounded the equality and freedom but after a lapse of 68 years since after coming into force of the Constitution of India, the citizens, especially in the rural areas, are under the influence of orthodox phenomenon and believe in the traditional societies. It gravely affects the doctrine of social justice and equality. The petitioners in the present case had provided sufficient evidences of their age and it was proved that they were both majors who got married and were living together. Since both the petitioners are citizens of India, they have a right to live with dignity. The Court referred to its own decision in the case of Pardeep Kumar Singh v. State of Haryana2007 SCC OnLine P&H 1230, wherein several guidelines with regard to safety concerns of run-away couples were laid down by the Court.

The Court held that the petitioners had every right to seek protection of their lives as the same has been guaranteed to them under Article 21 of the Constitution of India. It is incumbent upon the state to ensure the safety of such couples.[Sushmita v. State of Punjab, CRM M No. 49692 of 2018 (O&M), order dated 13-11-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court:  A Division Judge Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J., disposed of an appeal wherein the right to water and electricity supply was directed as them being the basic necessities of life.

The petitioner constructed a residential house against which eviction proceedings were initiated against the petitioner as the land in possession was owned by the State Government. The petitioner applied for the electricity and water connections, but both these amenities were denied on the premise that ‘No Objection Certificate’ was not issued by the Municipal Council.

The respondents submitted that the same cannot be granted as the petitioner has not risen the construction after getting building plan sanctioned plus the petitioner unauthorizedly occupied the Government land and raised illegal construction, without seeking prior approval of the authorities.

The Court agreed to the fact that ordinarily, it would be reluctant in granting relief to a person alleged to be an encroacher over the Government property, but at the same time, it was not expedient to express any view on merits, as any observation in relation to this issue was likely to have impacted on the merits of the case.

The prime consideration was whether the basic amenities of water and electricity shall be granted to the petitioner or not. It was stated that as they were an integral part of Right to Life within the meaning of Article 21 of the Constitution of India calls for immediate action. Thus till the title dispute remains pending, for that considerable period the petitioner shall be granted the same on subject to their payment of requisite charges and shall remain purely an interim and ad hoc measure till the title dispute was decided. Accordingly, the appeal was disposed of. [Madan Lal v. State of Himachal Pradesh, 2018 SCC OnLine HP 1495,  decided on22-10-2018]