OP. ED.SCC Journal Section Archives

Justice Prabodh Dinkarrao Desai was by far the finest Judge I have known in my four decades in the legal profession. He was true to his oath and lived by very strict principles which he expected others to follow. The foremost quality of Justice Desai was his fearlessness. When any Judge takes oath, he swears to work to the best of his ability without fear or favour, affection or ill-will. “Fear” was a word which did not exist in Justice Desai’s mind or dictionary. He worked tirelessly as a Judge and Chief Justice for 23 years, never seeking any reward for himself. A man who was elevated as a Judge of the High Court at the young age of 39 years could well have risen to the highest judicial post in the country if he had played his cards right. However, Justice Desai believed in doing the right things, and not in playing his cards right. He never pandered to those in power and sacrificed his future in his quest for truth. He may never have been elevated to the Supreme Court but today he is acknowledged and remembered as one of the finest Judges this country has ever seen.

 

Justice Desai was a Judge way ahead of his times. He used the Constitution as a tool to ameliorate the lives of the downtrodden. He was not bound by the rules of procedure and if, within the bounds of law, he could give relief to any petitioner before him he never hesitated to do so. Justice Desai was one of the pioneers of public interest litigation. He was an activist Judge who did not hesitate to take action even on letters written to him, if those letters disclosed violation of the fundamental rights of the citizens. It was he who said that the right to have motorable road is a fundamental right within the meaning of Article 21 of the Constitution. In some cases he entertained letters without disclosing the names of the persons who had written the letter. He was a messiah for the needy, the downtrodden and those whose fundamental rights have been curtailed whether it be in jail or outside. In one of his judgments he said “fundamental rights do not flee a person as he enters the prison”.1

 

Justice Desai was the Chief Justice of the Himachal Pradesh High Court from 23-12-1983 to 13-11-1988. When he joined, I had put in a little more than five years’ practise. For five years, day in and day out, I appeared in the Court of Justice Desai. Each day was a learning experience; learning not only in the field of law but learning how law can be used as an instrument of social change, how the legal fraternity can help alleviate the problems of the downtrodden.

 

Today’s topic “Law of Sedition in India and Freedom of Expression” is very important and relevant. I would like to divide this topic in two portions. Since freedom of speech and expression is a fundamental right guaranteed under the Constitution of India, this must be given its due importance and weightage while interpreting any legal provisions including the law of sedition. Therefore, I will first deal with the constitutional right of freedom of speech and expression, then with the laws of sedition and finally the interplay between the two.

 

Right of freedom of speech and expression

In the Preamble to the Constitution, “We the people of India” have promised to secure for all the citizens—liberty of thought, expression, belief, faith and worship. This is an inherent human right and a part of the basic structure of the Constitution. There cannot be any democratic polity where the citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner which they feel like.

 

What is a general promise in the Preamble to the Constitution, later becomes an enshrined fundamental right. Article 19(1) (a) guarantees the right of freedom of speech and expression. This right is a well-recognised right which includes within its ambit the right of freedom of press, the right to know, right to privacy, etc. Article 21 prescribes that no person shall be deprived of his life or personal liberty except according to the procedure prescribed by law. The word “life” has been given an expansive meaning and has been now recognised to mean to live a life of decency and not a mere animal existence. I am not dilating on the various aspects of the right to life but even if there was no Article 19(1) (a) we could include the right to freedom of belief, thought, expression, faith and worship in the right to life enshrined in Article 21. Article 25 makes it clear that every person is entitled to freedom of conscience and the right to freely practise, profess and propagate his or her religion.

 

No doubt, the State has the power to impose reasonable restriction on the exercise of such rights in the interest of sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality, etc.

 

The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. Every society has its own rules and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with well-accepted norms of society. If everybody follows the well trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found. We are not dealing with vistas and explorations in the material field, but we are dealing with higher issues. If a person does not ask questions and does not raise issues questioning age old systems, no new systems would develop and the horizons of the mind will not expand. Whether it be Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and religious practices would not have been established, if they had quietly submitted to the views of their forefathers and had not questioned the existing religious practices, beliefs and rituals.

 

It is said that when Guru Nanak Dev went to Mecca, he was very tired and lay down to take rest. His feet were facing the Kaaba which, for the followers of Islam, is the house of God. The maulvi became angry on seeing Guru Nanak sleeping with his feet towards the house of God and shouted “You fool, don’t you know this is the house of God? Why are you lying with your feet towards the Kaaba?” Then Guru Nanak woke up and said, “O sir, I am sorry I didn’t know it. I was tired so I just lay down and fell asleep. Could you turn my legs to the side in which there is no God?” The maulvi had no real answer and Guru Nanak observed God does not live in one place. He lives everywhere.

 

Closer home, when Guru Nanak visited Haridwar and entered the holy Ganges to take a dip early in the morning, he saw that most of the pilgrims were taking water from the Ganges, raising it towards the sun and dropping it as an offering to their ancestors. Since he did not believe in such rituals and was a rationalist, Guru Nanak turned his back towards the sun, faced the West and started pouring water. This outraged some of the priests, who asked him what he was doing. He answered, my crops in the fields are dying because of lack of water. I am watering them. Everybody started laughing and making fun of him and asked him how this water would reach his fields hundreds of miles away. He answered that if the water that you pour can reach your ancestors in another world why cannot the water which I pour reach my fields. Today if somebody was to behave like Guru Nanak, most probably he would have to spend a couple of days in jail.

 

In a secular country, every belief does not have to be religious. Even atheists enjoy equal rights under our Constitution. Whether one is a believer, an agnostic or an atheist, one enjoys complete freedom of belief and conscience under our Constitution. There can be no impediments on the aforesaid rights except those permitted by the Constitution.

 

The right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes in. The judgment of H.R. Khanna, J. in ADM, Jabalpur case2, is a shining example of a dissent which is much more valuable than the opinion of the majority. This was a judgment delivered by a fearless, incorruptible Judge. Judges are administered oath wherein they swear or affirm to perform the duties to the best of their ability without fear or favour, affection or ill-will. First and foremost part of the duty is to do one’s duty without fear. As I said earlier, “fear” is not a word which existed in the dictionary of Justice P.D. Desai. In fact, this is a word which should not exist in the dictionary of any person who professes to be a Judge.

 

A very important aspect of a democracy is that the citizens should have no fear of the Government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence but mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live, if people could express their opinions fearlessly without being scared of prosecutions or trolling on social media. It is indeed sad that one of our celebrities had to withdraw from social media because he and his family members were trolled or threatened of dire consequences.

 

Law of sedition

The foremost thing that one must keep in mind is that this law was introduced at a time when we were ruled by a foreign imperialist colonizing power. The British brooked no opposition and did not want to listen to any criticism. Their sole aim was to deprive the people of this country of their rights including the right to express their views. In my view, this right of freedom of expression is an inherent human right and even if there was no Article 19, this right along with its limitations would be accepted to be an enforceable fundamental right.

 

Interestingly, though sedition was an offence in the first draft of the Penal Code, 1860 (IPC) drafted by Lord Macaulay, somehow this did not find its way into IPC when it was enacted in the year 1860. IPC was amended in the year 1898 when Section 124-A was introduced. After its various amendments, it reads as under:

 

124-A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.— Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

(emphasis supplied)

 

When Section 124-A was first introduced, we were told that this provision was not to curb legitimate dissent but was to be used only when the writer or the speaker directly or indirectly suggested or intended to produce the use of force. Another reason given was that there was a Wahabi conspiracy by a man who had preached Jihad or holy war against Christians in India and therefore the need to introduce such a provision. Though Section 124-A was inserted for fear of Muslim preachers advocating Jihad or religious war, it was initially used against Hindu leaders. The first such case was of Jogendra Chunder Bose3 wherein in a newspaper called Bangobasi, the Editor objected to the English rulers raising the age of consent of sexual intercourse for Indian girls from 10 to 12 years. While charging the Jury, the learned Chief Justice explained law to the Jury in these terms:

 

… Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man’s sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.4

 

The British used the law of sedition to curb any demand for independence. In Tilak5, which was tried by a Jury, the presiding Judge, Strachey, J. while explaining to the Jury the meaning of sedition had this to say:

 

The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government. What are “feelings of disaffection”? I agree with Sir Comer Petheram in Bangobasi case3 that disaffection means simply the absence of affection. It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. “Disloyalty” is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment : if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question. It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government. If you are satisfied that he has done so, you will, of course, find him guilty. But if you should hold that that charge is not made out, and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not justify you in acquitting the prisoners. For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings. You will observe that the section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feeling in others, you must convict him even if there is nothing to show that he succeeded. Again, it is important that you should fully realise another point. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtlesly fall within Section 124-A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.”

(emphasis supplied)

 

A similar provision existed in the laws in England. However, in England this offence was a misdemeanour, meaning a petty crime punishable with imprisonment up to 2 years, but for subjects in the colonies including India, the punishment was “banishment for life” which essentially means life imprisonment. The difference is stark and the reason for this difference is that in England the Crown was dealing with its own citizens and in the colonies, it was dealing with people whom it did not consider to be its own citizens but those who were being ruled by it. Both were obviously not equal.

 

Though in India the directions of the Judges to the Jury gave a very wide meaning to the word “sedition”, in England, at the same time, the interpretation given to sedition, was as under6:

 

“Nothing is clearer than the law on this head — namely, that whoever by language, either written or spoken incites or encourages other to use physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel. The word “sedition” in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or uproar; it implies violence or lawlessness in some form….”

 

The difference in the approach while interpreting the word “sedition” between the citizens of the mother country and the colonies is writ large. Criticism of the Government without any incitement or encouragement to use physical force or violence which would not be an offence in England would somehow tantamount to be an offence in the colonies though the language used was the same.

 

It is said that English is a very strange and difficult language and any word can have two meanings. But, here the double meaning was not due to a problem in semantics but where and against whom the law was being applied. A lenient view as against citizens and a harsh view against the colonized.

 

Another important decision on the law of sedition is in Niharendu Dutt Majumdar case7 when Sir Maurice Gwyer, C.J. of the Federal Court held:

 

Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Governments, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must, either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.8

However, the Privy Council9 did not approve what was said by Justice Maurice Gwyer, C.J.

 

Mahatma Gandhi was charged with sedition in the city of Ahmedabad and while appearing before Sessions Judge Broomfield, while dealing with the word “disaffection” he had this to say:

 

Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.

I think this brilliantly sums up what I want to say today that mere criticism without incitement to violence would not amount to sedition.

 

However, the Mahatma was sentenced to undergo imprisonment for 6 years.

 

You cannot force people to have affection for the Government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.

 

The situation after Independence

The Constituent Assembly, while debating on the right of freedom of speech also considered the law of sedition. In the first draft of the Constitution, sedition was included as an exception to the right to free speech. In the debate, many persons spoke for and against including sedition as an exception to Article 19. It was the likes of K.M. Munshi, Bhupinder Singh Mann, etc., who carried the day. Munshi insisted that sedition should not be kept as one of the exceptions to free speech. He was clear in his mind that only incitement to violence or insurrection should be barred and, therefore, exceptions to Article 19 do not contain the word “sedition” but security of State, public disorder or incitement to an offence. This clearly underlines the fact that the Founding Fathers of the Constitution were of the view that sedition could be an offence only if it led to or incited public disorder or violence. In fact, Mr Munshi relied upon the judgment7 of Sir Maurice Gwyer, which I referred to above. After independence and before the first amendment to the Constitution was brought in, it was felt that Section 124-A would not at all be constitutionally valid. In fact, Justice Sarjoo Prasad in Bihar had gone to the extent of interpreting the judgment of the Supreme Court in Romesh Thappar case10 to mean that even a call for incitement of murder would not be a crime. This was an extreme view, which was rightly set aside by the Supreme Court11, but this led to the first amendment being brought in by which the restriction of public order was introduced to Article 19. Interestingly, whereas the first amendment to the American Constitution guaranteed freedom of speech, our first amendment curtailed the right of freedom of speech to a certain extent.

 

The constitutional validity of the provisions of Section 124-A was challenged before a Constitution Bench of the Supreme Court in Kedar Nath Singh12, wherein the challenge was based mainly on the ground that Section 124-A was inconsistent with Article 19(1)(a) of the Constitution. After referring to the various decisions, some of which I have referred to above, the Supreme Court held as follows:

  1. 26. … It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress.13, 14 Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.15

 

The Supreme Court held that no offence of sedition under Section 124-A is made out unless the words — spoken or written, would have the tendency to create disorder or disturbance of public peace by resort to violence. Unless the words are likely to lead to violence, no offence is made out.

 

If one carefully analyses the Constitution Bench decision in Kedar Nath12, it is apparent that if creation of disorder or disturbance of law and order or incitement to violence had not figured, the Constitution Bench may have in all likelihood, struck down Section 124-A. It was held to be constitutional only when read in the context of incitement to violence or creating public disorder or disturbing law and order.

 

In 1974, the then Government brought another change into Section 124-A making it even more stringent. The offence, which till then had been a non-cognizable offence was made a cognizable offence meaning thereby that a person could be arrested by a police officer without obtaining warrant from a Magistrate. For me, it is very shocking that in independent India we should make the provisions with regard to sedition even more stringent and curb the voice of the people.

 

The law as laid down in Kedar Nath12 is absolutely clear. It is only if there is incitement to violence or creating of public disorder or disturbing the law that the offence of sedition is made out. Following this judgment, the Supreme Court in 1995 in Balwant Singh16 held that raising slogans like “Khalistan Zindabad”, “Raj Karega Khalsa”, etc. by themselves did not amount to an offence of sedition because there was no material or record to show that any violence had taken place despite the slogans being raised at a public place.

 

This position of law has been reiterated many times including in Bilal Ahmed Kaloo case17 and Common Cause v. Union of India18. In both these cases, the Supreme Court directed the Courts to exercise care while invoking charges of sedition. The Courts were advised to follow the principles laid down in Kedar Nath12. It was again said that sedition charges cannot be levelled only for criticising the Government or its policies.

 

The interplay between freedom of expression and the law of sedition

I would like to start with a quote from Nariman, J. opinion in Shreya Singhal case19.

  1. 13. This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, etc.20

 

This passage brilliantly sums up what should be applied even in the laws of sedition. Though Nariman, J. expressed the view that discussion and advocacy are the inherent constituents of the right to “Freedom of Speech and Expression”, the harsh reality is that the art of conversation is itself dying down. There is no healthy discussion; there is no advocacy on principles and issues. There are only shouting and slanging matches. Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.

 

The constitutional validity of Section 124-A has to be read in the context of Article 19 of the Constitution of India. Thus, it is clear that advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted. Majoritarianism cannot be the law. Even the minority has the right to express its views. We must also remember that in India we follow the first past the post principle. Even Governments which come in with a huge majority do not get 50% of the votes. Therefore, though they are entitled to govern or be called as majority, it cannot be said that they represent the voice of all the people. There is another very important aspect of this interplay between freedom of expression and the law of sedition, and here I would also discuss the offence of creation of disharmony under Section 153-A and criminal defamation under Sections 499500IPC. Sedition can arise only against a Government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the Government. During the dark days of Emergency, an attempt was made by one Party President to equate his leader with the country. That attempt miserably failed and, I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual. Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony.

 

The law of sedition is more often abused and misused. The people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from court, he has suffered the ignominy of being sent to jail. The manner in which the provisions of Section 124-A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression being a constitutional right must get primacy over laws of sedition. Sedition is a crime only when there is incitement to violence or public disorder. That is what the law of the land is as laid down in Kedar Nath12. Sadly, day in and day out, we read of people being arrested in different parts of the country for making cartoons, making not so complementary references about the heads of the State, etc. The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country. Trials in criminal cases of rape, murder and crimes falling under Pocso carry on for years on end because police officials do not have time to even depose before the courts but when it comes to sedition or Section or implementing the provisions of Section 66-A of the Information Technology Act (which has been declared unconstitutional), there seems to be no shortage of manpower and the police acts with great alacrity. It is, thus, clear that there is one set of rules for the rich and the powerful and another set of rules for the ordinary citizens of the country. In a country which professes to live by rule of law, this cannot be permitted.

 

The last few years have given rise to a number of cases where the law of sedition or creating disharmony have been misused rampantly by the police to arrest and humiliate people who have not committed the crime of sedition as laid down by the Constitution Bench of this Court.

 

In 2011, Mumbai Police arrested Asim Trivedi, a cartoonist for circulating a cartoon which allegedly poked fun at the Constitution and the National Emblem in an anti-corruption rally organised by Anna Hazare. This led to the Bombay High Court issuing directions to the police that before arresting a person on charges of sedition the senior officials should be consulted. The High Court of Bombay held as under21:

  1. 15. … it is clear that the provisions of Section 124-AIPC cannot be invoked to penalize criticism of the persons for the time being engaged in carrying on administration or strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
  2. 16. Cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour or sarcasm. Having seen the seven cartoons in question drawn by the third respondent, it is difficult to find any element of wit or humour or sarcasm. The cartoons displayed at a meeting held on 27-11-2011 in Mumbai, as a part of a movement launched by Anna Hazare against corruption in India, were full of anger and disgust against corruption prevailing in the political system and had no element of wit or humour or sarcasm. But for that reason, the freedom of speech and expression available to the third respondent to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder.22

 

I think our country, our Constitution and our National Emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same. How does one judge what is inside a person’s mind or in his heart?

 

In Chhattisgarh, a 53-year-old man was arrested on charges of sedition for allegedly spreading rumours over social media about power cuts in the State. It was said that this was done to tarnish the image of the then Government running the State. The charge was absurd and again highlights the misuse of power. In Manipur, a journalist made a vituperative attack on the Chief Minister of the State and used totally unparliamentary language against the Prime Minister of the country. The language was intemperate and uncalled for but this was not a case of sedition. It was at best a case of criminal defamation. The man was kept behind bars for months under the National Security Act. In West Bengal, a party leader was arrested for morphing an image of the Chief Minister and in U.P., a man was arrested for morphing the image of the Prime Minister of the country and shockingly this image had been morphed 5 years’ back. What was the hurry to suddenly arrest this man after 5 years? A rapper who does not even live in India has been charged for sedition. The language used by her may be totally uncalled for, some other offences may be made out, but sedition does not appear to be one of them. In another extreme case, a film-maker in Tamil Nadu has been booked under Sections 153 and 153-AIPC for inciting caste enmity because he allegedly made remarks against the Chola Dynasty King for being caste oppressive. This Chola Dynasty King lived more than a thousand years’ back.

 

The law of creating disharmony and Section 66-A of the Information Technology Act, 2000 which has been held unconstitutional are still being used day in and day out to arrest people. In fact, a Bench of the Supreme Court has been constrained to pass directions on 15-2-201923 that copies of the judgment of the Supreme Court in Shreya Singhal19 be made available by every High Court in this country to all the District Courts. It does not speak well of the Indian judiciary that the Magistrates are unaware of the law of land and day in and day out we hear of Magistrates granting judicial custody or police remand in relation to such offences wherein the basic offences are not made out and under Section 66-A of the Information Technology Act, a law which is no longer valid.

 

The law laid down in Kedar Nath12, being the law of the land has to be applied in letter and spirit and unless the actions lead to creation of public disorder, disturbance of law and order or incitement to violence, no action should be taken. In fact, in my view, the law of sedition needs to be toned down if not abolished and the least which the Government can do is to make it a non-cognizable offence so that the persons are not arrested at the drop of a hat.

 

In many countries all over the world, recognising the right of freedom of speech, the laws of sedition have been abrogated or withdrawn. Even in England, sedition is no longer an offence and the crime of sedition was abolished from 2009 on the ground that sedition and seditious and defamatory libel are archaic offences — from a bygone era when freedom of expression wasn’t seen as the right it is today.

 

India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the Government. Criticism of the Government by itself cannot amount to sedition. In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives. The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view. Criticism of the policies of the Government is not sedition unless there is a call for public disorder or incitement to violence. The people in power must develop thick skins. They cannot be oversensitive to people who make fun of them. In a free country, people have a right to express their views. Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the persons for sedition or creating disharmony.

 

We all must be open to criticism. The judiciary is not above criticism. If Judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the Founding Fathers never expected this country to be.

 

Gurudev Rabindra Nath Tagore had a view on nationalism, which is the anti-thesis of the view which many of us have. He, in fact, had not appreciated the satyagrah movement. He, who wrote the National Anthem also held the view that “nationalism is a great menace”. I do not agree with those views nor did eminent leaders of that time but this did not make Gurudev Rabindra Nath Tagore less an Indian, less a patriot than any of his contemporaries. Merely because a person does not agree with the Government in power or is virulently critical of the Government in power, does not make him any less a patriot than those in power. In today’s world, if any person was to say “nationalism is a great menace” he may well be charged with sedition.

 

To conclude, I would say that if this country is to progress not only in the field of commerce and industry but to progress in the field of human rights and be a shining example of an effective, vibrant democracy then the voice of the people can never be stifled. I can do no better than quote the words of Gurudev Rabindra Nath Tagore:

 

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake.

Thank you all. Jai Hind.

———

* Valedictory address at the workshop of lawyers, organised by Praleen Public Charitable Trust and Lecture Committee at Ahmedabad, Gujarat on 7-9-2019.

Judge, Supreme Court of India.

1 Nawal Thakur v. Brahmu Ram, 1984 SCC OnLine HP 52 : 1985 Cri LJ 244.

2 ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

3 Queen Empress v. Jogendera Chunder Bose, ILR (1892) 19 Cal 35.

4 Id., p. 44.

5 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom. 112.

6 R. v. Aldred, (1909) 22 Cox CC 1.

7 Niharendu Dutt Majumdar v. King Emperor, 1942 SCC OnLine FC 5 : (1942) 4 FCR 38.

8 Ibid.

9 King-Emperor v. Sadashiv Narayan Bhalerao, 1947 SCC OnLine PC 9 : (1946-47) 74 IA 89.

10 Romesh Thappar v. State of Madras, AIR 1950 SC 124.

11 State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

12 Kedar Nath v. State of Bihar, AIR 1962 SC 955.

13 Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.

14 R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628.

15 Kedar Nath case, AIR 1962 SC 955, 969, para 26.

16 Balwant Singh v. State of Punjab, (1995) 3 SCC 214.

17 Bilal Ahmed Kaloo v. State of A.P., (1997) 7 SCC 431.

18 (2016) 15 SCC 269.

19 Shreya Singhal v. Union of India, (2015) 5 SCC 1.

20 Id, pp. 130-31, para 13.

21 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587.

22 Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587, paras 15-16.

23 Peoples’ Union For Civil Liberties v. Union of India, 2019 SCC OnLine SC 1820.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

Issue

Whether an individual’s control over such cardinal element of identity could be denied to him/her by the Central Board of Secondary Education on the specious ground that its Examination Byelaws of 2007 must prevail over the claim of the candidate, which are merely intended to regulate such a claim and to delineate the procedure for correction/change in the contents of certificate(s) issued by it including regarding maintenance of its office records?

Analysis

Do you have the right to change your identity?

“What’s in a name? that which we call a rose by any other name would smell as sweet”, said Juliet. This quote from William Shakespeare’s “Romeo and Juliet” is unarguably one of the most iconic dialogues in classical literature.  It conveys that the natural characteristics of an individual are more important than his/her artificial/acquired characteristics.  A poetic statement as it certainly is, it does not go in tune with the significance of a name in marking the identity of an individual in his/her societal transactions. To put it differently, name is an intrinsic element of identity.”

Identity is an amalgam of various internal and external including acquired characteristics of an individual and name can be regarded as one of the foremost indicators of identity. And therefore, an individual must be in complete control of her name and law must enable her to retain as well as to exercise such control freely “for all times”. Such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause.

Any change in identity of an individual has to go through multiple steps and it cannot be regarded as complete without proper fulfilment of those steps. An individual may self¬identify oneself with any title or epithet at any point of time. But the change of identity would not be regarded as formally or legally complete until and unless the State and its agencies take note thereof in their records. Afterall, in social sphere, an individual is not only recognized by how an individual identifies oneself but also by how his/her official records identify him/her. For, in every public transaction of an individual, official records introduce the person by his/her name and other relevant particulars.

However, going by the very nature of rights under Article 19, the right to get changed name recorded in the official (public) records cannot be an absolute right and as a matter of public policy and larger public interest calls for certain reasonable restrictions to observe consistency and obviate confusion and deceptive attempt.

Byelaws violative of fundamental right to change one’s identity?

The concerned Byelaw has been framed on the assumption that there can be no situation wherein a legitimate need for change of name could arise for a student after publication of results. It is presumed that only typographical/factual errors could come in the certificates and they can be corrected using the provision for corrections.

“The presumption, we must note, is erroneous, absurd and distances itself from the social realities.”

There can be numerous circumstances wherein change of name could be a legitimate requirement and keeping the ultimate goal of preserving the standard of education in mind, the Board must provide for a reasonable opportunity to effect such changes.

Further, the balance of convenience would tilt in favour of students.  For, they stand to lose more due to inaccuracies in their certificates than the Board whose sole worry is increasing administrative burden.

“The obligation of Board to take additional administrative burden is no doubt onerous but the propensity of a student losing career opportunities due to inaccurate certificate is unparalleled.”

A Board dealing with maintenance of educational standards cannot arrogate to itself the power to impact identity of students who enrol with it. The right to control one’s identity must remain with the individual, subject, of course, to reasonable restrictions.

What kind of requests can be made?

Where the incumbent wants “correction” in the certificate issued by the CBSE:

  • There is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations.
  • While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction.
  • The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate  original certificate, as the case may be) issued by it for replacing it with the fresh certificate to be issued after carrying out necessary corrections with  caption/annotation against the changes carried out and the date of such correction.
  • It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten.
  • The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate.
  • The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing   fresh   certificate.
  • At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition, would be unreasonable and excessive.
  • If the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which the application for recording correction in certificate issued by it may be entertained by it.
  • However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance.
  • If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time.

Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record of the candidate concerned is traceable or can be reconstructed.

In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE.

“Change” of particulars in the certificate issued by the CBSE:

The request for “change” of particulars in the certificate issued by the CBSE,  presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records.

When are such requests made?

(a) on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith.

There is a legal presumption in relation to the public documents as envisaged in the 1872 Act. Such public documents, therefore, cannot be ignored by the CBSE. Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses.

The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant.

The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof.

“In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten).”

(b) due to the acquired name by choice at a later point of time which need not be backed by public documents pertaining to the candidate:

Such a request may be entertained upon insisting for prior permission/declaration by a Court of law in that regard and publication in the Official Gazette including surrender/return of original certificate (or duplicate original certificate, as the case may be) issued by CBSE and upon payment of   prescribed fees.

The fresh certificate may retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE.  This is so because the CBSE is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant.

Directions

  • The CBSE to process the applications for correction or change, as the case may be, in the certificate issued by it in the respective cases under consideration.
  • Even other pending applications and future applications for such request be processed on the lines of the decision of the Court in the present case, as may be applicable, until amendment of relevant Byelaws.
  • Additionally, the CBSE shall take immediate steps to amend its relevant Byelaws so as to incorporate the stated mechanism for recording correction or change, as the case may be, in the certificates already issued or to be issued by it.

[Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415, decided on 03.06.2021]


Judgment by: Justice AM Khanwilkar 

Know Thy Judge| Justice AM Khanwilkar

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Tashi Rabstan and Ali Mohammad Magrey, JJ., addressed the instant petition seeking for issuance of directions to the government for providing promotion opportunities to the persons working as restorers in the High Court. The Bench remarked,

“It is settled position of law that right of consideration for promotion to the next higher post is a fundamental right of an employee. Opportunity of advancement in service career by promotion is considered to be a normal incidence of service.”Ser

The grievance of the petitioners was that they were working as Restorers in the High Court of Jammu and Kashmir and that they had remained stagnated on the said posts as there were no promotional avenues available for them in terms of the rules governing the field. It was stated that the grade attached to the said posts of Restorers was Rs.2610-3450 (pre-revised) which was neither commensurate to the duties being performed by the petitioners nor at par with their counterparts working in the other High Courts of the country. The petitioners had filed a representation before the Registrar General of the High Court for seeking redressal of their grievances. The registrar, in return, had requested the government to accord approval for upgradation of pay scale of Restorers working in the High Court from 2610-3450 (pre-revised) to 3050-4910 (pre-revised).

However, despite there being recommendations for upgradation of pay scale the Government did not consider the case. The issue was threadbare discussed and examined by the High-Level Committee constituted for this purpose which was headed by Financial Commissioner, Finance Department. The Committee finally recommended that pay scale attached to the post held by all the employees working in the High Court could not be upgraded as it would lead to similar claims from similarly placed employees of the State Government and it may also result in pay anomalies.

Ultimately, keeping in view the demands of the employees, and also the direction passed by this  Court in Joginder Singh v State, the government decided that special pay equivalent to the 10% of the basic pay may be allowed to the employees.  The said benefit of the “Special Pay” had already been accepted by the employees and the Restorers had also been allowed the same benefit. The government contended that the case of the Restorers could not be examined in isolation from other employees of the High Court. Since, all the employees working in the High Court were governed by the same rules, same yardstick had to be adopted/ followed for each of such category of employees while considering their case of upgradation of pay scale.

The petitioners contended that the course of action adopted by the Government in intermingling the issue of upgradation of the grade attached to the posts of Restorers, with the grant of ‘Special Pay’ could not be countenanced at all.

The ‘Special Pay’ in favour of the employees working in the High Court was granted by the Government in recognition to the special duties being performed by such employees and same was a distinct element which, in no circumstance could be merged with the basic pay.

The Bench, after perusing the recruitment rules/ orders governing the service conditions of the petitioner-Restorers observed that the standing mode for filling up the available vacancies of Restorers in the High Court was 100% by direct recruitment, but, at the same time these Restorers had not been made the feeding cadre for any higher post, meaning thereby that there were no avenues for their promotion to the next higher post at all. The Bench expressed,

“Availability of reasonable promotional opportunities in service generates efficiency and fosters the appropriate attitude to grow for achieving excellence in service.”

The Supreme Court, in Council of Scientific and Industrial Research v. K.G.S. Bhatt, (1989) 4 SCC 635, in order to emphasize the importance of promotional avenues to obviate stagnation in service had held as follows:

“…an organization, public or private, does not ‘hire a hand’ but engages or employees a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance…Every management must provide realistic opportunities for promising employees to move upward.”

It had been repeated and reiterated in a catena of judicial dictums that absence of appropriate promotional prospects in service is bound to degenerate the employees. Stagnation in service on the same post for quite a long period of time and lack of any promotional avenues kills the desire to serve properly. The Bench observed,

“The petitioners have been discharging their duties on the posts of Restorers in the High Court since a long period of time with the legitimate expectation that in due recognition of such services being rendered by them, they will be provided appropriate promotional avenues as is the procedure prevalent with regard to the rest of the posts borne on the establishment of the High Court.”

The factum of stagnation in service qua the petitioners was clearly evident even to a naked eye as, in their entire length of service, not even a single promotional avenue was available to the petitioners. In view of the foregoing analysis, the Bench disposed of the instant petition by directing the Government to consider the recommendations of the High Court for upgradation of the grade attached to the posts of Restorers notwithstanding the grant of ‘Special Pay’ and pass appropriate orders thereon. Further, in view of the stagnation in service being faced by the petitioners, the Bench directed the Registrar of the High Court,to consider the case of the petitioners for exploring the possibility of creating suitable promotional avenues in favour of the petitioners by making appropriate amendment in the rules governing the field commensurate to the present status/ qualification of the petitioners. [Latif Hussain Khan v. State of JK, WP(C) No.1410/2019, decided on 26-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Sr. Adv. Rohit Kapoor and Adv. Ankit

For the Respondents: Sr. AAG B. A. Dar and Adv. Masooda Jan

Case BriefsHigh Courts

Punjab and Haryana High Court: Alka Sarin, J., allowing the present petition, reemphasized on the extended view of Article 21 as opted by the Supreme Court in Shafin Jahan case.

 The present criminal writ petition has been filed under Article 226 of the Constitution of India for enforcement of fundamental rights of the petitioners seeking protection of their life and liberty as enshrined under Article 21 of the Constitution. To put it briefly, the petitioners are residing together in a live in relationship and are willing to marry each other, against the wishes of their families. They are met with regular threat from their family members against which the present petition has been moved seeking protection under Article 21 of the Constitution.

 Court observed, “The petitioners are both major and have every right to live their lives as they desire within the four corners of the law. The society cannot determine how an individual should live her or his life. The Constitution of India guarantees every individual the right to life and the choice of a partner is an important facet of the right to life.”  Reliance was placed on the case of Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, wherein the Supreme Court observed, The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.”

While allowing the petition, the Court further clarified, “Merely because of the fact that petitioner No.2 is not of a marriageable age the petitioners cannot possibly be denied enforcement of their fundamental rights as envisaged under Article 21 of the Constitution of India. The petitioners, both being major, have decided to live together in a live-in relationship and there possibly may not be any legally justifiable reason for the respondents to object to the same.”[Priyapreet Kaur v. State of Punjab,  2020 SCC OnLine P&H 2340, decided on 23-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsCOVID 19Supreme Court

Supreme Court: Concerned with the COVID-19 pandemic spreading like a wild fire despite Guidelines and SOPs in place, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has said that a strict and stern action should be taken against those who are violating the Guidelines and SOPs, whoever he may be and whatever position the violator is occupying.

On 27.11.2020, the Court took suo motu cognizance of the incident which happened in Rajkot, Gujarat on 26.11.2020 resulting in death of COVID patients in the COVIDHospital. The Court also took notice of earlier incidents of fire in Covid Hospitals.

Stressing upon the right to health being a fundamental right guaranteed under Article 21 of the Constitution of India which includes affordable treatment, the Court said that either more provisions are to be made by the State Government and the local administration or there shall be cap on the fees charged by the private hospitals, which can be in exercise of the powers under the Disaster Management Act.

“It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished.”

Asking States to rise to the occasion, the Court said that every State must act vigilantly and to work with the Centre harmoniously.

Further, people should understand their duty and follow rules very strictly. It is the duty of every citizen to perform their fundamental duties as guaranteed under the Constitution of India.

“By not following the Guidelines/SOPs issued by the State from time to time, such as, not wearing the masks, not keeping social distances, to participate in the gatherings and the celebrations without maintaining social distances, they are ultimately not damaging themselves but they cause damage to the others also. They cannot be permitted to play with the lives of the others and they cannot be permitted to infringe the rights of other citizens, like right to health guaranteed under Article 21 of the Constitution of India.”

Calling for strict implementation of the SOPs and the guidelines issued from time to time, the Court reiterated the following measures:

i) More and more police personnel shall be deployed at the places where there is likelihood of gathering by the people, such as, Food Courts, Eateries, Vegetable Markets (Wholesale or Retail), sabzi Mandies, bus stations, railway stations, street vendors, etc.

ii) As far as possible, unless must, no permission shall be granted by the local administration or the Collector/DSP for celebration/gathering even during the day hours and wherever the permissions are granted, the local administration/DSP/Collector/Police In-charge of the local police station shall ensure the strict 7 compliance of the Guidelines/SOPs. There should be a mechanism to check the number of people attending such function/gathering, such as, the particulars with respect to how many persons are going to attend the celebration/gathering, timings during which the celebration/gathering is to take place etc.

iii) There shall be more and more testing and to declare the correct facts and figures. One must be transparent in number of testing and declaring the facts and figures of the persons who are Corona Positive. Otherwise, the people will be misled and they will be under impression that everything is all right and they will become negligent.

iv) Whenever directions are issued under the Disaster Management Act directing the corporate hospitals/private hospitals to keep 50% or any other percentage free municipal beds, it must be strictly complied with and there shall be constant vigilance and supervision.

v) There shall be free helpline numbers to redress the grievances of common man, when there is noncompliance of the directions by the private hospitals/corporate hospitals.

vi) Curfew on weekends/night be considered by States where it is not in place.

vii) In a micro containment zone or in an area where number of cases are on higher side, to cut the chain, they should be sealed and there should be complete lockdown so far as such areas are concerned. Such containment areas need to be sealed for few days except essential services. The same is required to break the chain of virus spread.

viii) Any decision to impose curfew and/or lockdown must be announced long in advance so that the people may know and make provisions for their livelihood, like ration etc.

ix) Another issue is a fatigue of front row health care officers, such as, Doctors, Nurses as well as workers. They are already exhausted physically and mentally due to tireless work for eight months. Some mechanism may be required to give them intermittent rest.

On the issue relating to gatherings organised by Political parties in light on upcoming elections in various States, the Court directed all the States / Union Territories to issue necessary directions to ensure compliance of guidelines for conduct of General Elections/Bye-Elections during Covid-19

The Court said that guidelines although were issued by General Election/Bye Election, can be implemented by different States with suitable modifications with reference to Elections of other organisations to ensure safety of people in general from Covid-19.

[IN RE: THE PROPER TREATMENT OF COVID 19 PATIENTS AND DIGNIFIED HANDLING OF DEAD BODIES IN THE HOSPITALS ETC., 2020 SCC OnLine SC 1036, order dated 18.12.2020]

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sujatha and Sachin Shankar Magadam JJ., disposed off the petition due to the limitation of its scope regarding the production of the individual only before the Court.

The instant writ petition in the nature of habeas corpus was filed by the petitioner seeking direction to respondents to produce Kum. Ramya G. before Court and set her at liberty.

The daughter of the petitioner Kum Ramya G was presented before the Court by the jurisdictional police and submitted that she is staying at Mahila Sakshatha Samithi, Vidyaranyapura and pursuant to the complaint lodged by her alleging infringement of her right to liberty caused by her parents relating to her marriage with the petitioner. She further submitted that she is in love with one of her colleague working at IQVIA as a software engineer but her parents are not giving permission.

The Court thus observed that a right of any major individual to marry the person of his/her choice is a fundamental right enshrined in the Constitution of India and the said liberty relating to the personal relationships of two individuals cannot be encroached by anybody irrespective of caste or religion.

In light of the aforesaid observations, Court held that the petition being limited to production of the person before the Court only, no interference to be made in other reliefs.

In view of the above, petition was disposed off.[Wajeed Khan v. Commr. of Police, W.P.H.C No. 92 of 2020, decided on 21-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Op EdsOP. ED.

Right to Information Intertwined with Right to Privacy of Personal Information

The Right to Information (RTI) is considered as a fundamental right under Article 19(1)(a) of the Constitution[1] and is often described as a tenet for strengthening the pillars of democracy. The Right to Information Act, 2005 provides for transparency and accountability of Government through access of information to the general public.

On the other side, the right to privacy is also considered as a fundamental right under Article 21 of the Constitution since 2017 when the Supreme Court ruled so in K.S. Puttaswamy v. Union of India[2].

The real challenge is when both these rights are at crossroad and enforcement of any one would lead to other being overridden. Thus, the RTI Act, 2005 paves the way for right to privacy by restricting the disclosure of the information which interferes with the privacy of any individual unless it is required for greater public good[3].

In Girish Ramchandra Deshpande v. Central Information Commission[4] (Girish Deshpande), the issue before the Supreme Court was whether the Central Information Commission (CIC) can deny the information pertaining to the personal matters of a public servant, pertaining to his service career and the details of his assets, liabilities, movable and immovable properties on the basis of exception mentioned in Section 8(1)(j) of the RTI Act, 2005.

Section 8(1)(j) of the  RTI  Act, 2005 provides that: Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to Parliament or a State Legislature shall not be denied to any person.

The Court while expanding the scope of Section 8(1)(j) of the Act in the aforementioned case held that the documents pertaining to the public servant including his employment letter, assets, income tax return, details of gift received, orders of censure/punishment are exempted from being disclose by the virtue of Section 8(1)(j) and qualifies to be personal information. It further observed that the performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and these aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which would cause unwarranted invasion of privacy of that individual.

Further, the Supreme Court in R.K Jain v. Union of India[5] wherein the appellant sought copies of all note sheets and correspondence pages as contained in an Annual Confidential Report (ACR) and any follow up action pertaining integrity of a public servant was denied on the basis of Section 8(1)(j) of the RTI Act.

Similarly, in 2017 the Supreme Court again reiterated its position in the judgment of Canara Bank v. C.S. Shyam[6], wherein the information sought was of personal information of an employee of Canara Bank. The court while affirming the position of Girish Deshpande[7] as well as R.K. Jain v. Union of India[8] held that personal information is outside the ambit of the RTI and that there was no public interest having larger good involved in respect of personal information being sought.

Privacy Upheld by Judiciary in the Often Referred to “Name and Shame” Decision in Lucknow, Uttar Pradesh

Recently, after the promulgation of the Citizenship Amendment Bill, 2019 (CAA), there were nationwide protests against the Government and the CAA which led the Uttar Pradesh Government/administration to take an unforeseen action against the protestors who were accused of vandalism. The administration displayed banners in the city of Lucknow which had all the details of those protestors including their photographs, name and address, against whom the administration had initiated actions to claim compensation for public vandalism.

The poster sought to confiscation of property if the accused failed to pay up the compensation. This found widespread telecast and reporting in print. The Allahabad High Court had taken a suo motu cognizance of such move considering it to be a gross violation of right to privacy as enshrined under Article 21 of the Constitution.

The Court although had not referred to the judgment of Girish Deshpande[9], but had held that such move by the UP Government was uncalled for and breached the right to privacy of the rioters. Though the judgment in Girish Deshpande[10] had little relation to the referred case here, but it is worth mentioning in the context of right to privacy of personal information which won in this case.

Let us try to Analyse Excerpts of the Ruling by the Allahabad High Court

It has been often said that the right to privacy provides lungs to the edifice of the constitutional system. The slightest injury to this right is impermissible as it would put the values designed and depicted in the Preamble of the Constitution to jeopardy. Primarily, the foregoing was upheld in the ruling by the Allahabad High Court.

The act on the part of district and police administration of Lucknow was in conflict with the right of life and liberty of individuals. The territorial jurisdiction of the Allahabad High Court which was challenged was put to rest with the argument that despite the fact that the action might have happened in Lucknow and no personal injury was caused, but the act on the part of the administration demonstrated gross ignorance of constitutional and democratic values and the fact that it was widely prone to public dissemination via media, it could lead to form a State-wide nature of impugned action.

The administration’s logic to display the names of the accused at a conspicuous place was that it should act as a deterrent to public to take law in their hands and was in public interest. This was challenged to be in violation of people’s fundamental rights. Further, it was held that there was no provision in the current law by which the Government could display such names in public fora and that those persons were not even fugitives.

The Allahabad High Court also questioned rational nexus between the object (to deter public at large from participating in such illegal acts of rioting, etc.) and means (display of identity against whom compensation has been claimed for destroying public property) adopted to achieve the object and further how the extent of interference is proportionate to its need. It was said that the fact that only few peoples’ name was put on the banners while there must be several thousand cases against several accused in the State for several serious crimes, the administration had done a colourable act in exercise of its executive powers.

UP authorities was ordered to take down banners from the road side displaying the personal information of individuals and not to do such acts without authority of law.[11] The UP Government has appealed against the aforesaid order before the Supreme Court, which has not been stayed yet and has been referred to a larger Bench.[12]

Right to Fair Trial over and above Right to Privacy

The issue[13] arose through a matrimonial dispute wherein the family court had admitted a Compact Disk (CD) filed by husband wherein the wife could be heard talking ill about the husband and his family. The husband contended that such derogatory remark amounts to cruelty. Thereafter, the wife approached the Delhi High Court under Article 227 of the Constitution seeking dismissal of the CD being taken on record as evidence. The reasoning provided by wife was that the CD was tampered, therefore unreliable and that the conversation between her and so called friend was recorded without her knowledge or consent which constituted violation of her fundamental right to privacy, therefore not admissible as evidence. For the purpose of case analysis here, we will only consider the legal point pertaining  privacy.

The argument put forth by wife was that privacy had been recognised by the Supreme Court as a fundamental right, available to a person not only against the State but also against private individuals as is recognised by the Supreme Court in  K.S. Puttaswamy v. Union of India[14].

On the other hand, husband’s contention was that although privacy had been recognised by the Supreme Court as a fundamental right, but it was not absolute and subject to reasonable restrictions.

Relying upon other judicial precedents, it was urged that the husband was entitled to establish cruelty on the wife’s part and to prove his case seeking dissolution of marriage on that ground under the family law concerned. Accordingly, the wife’s right to privacy must accede to the husband’s right to bring evidence to prove his case, else the husband would be denied the right to fair trial guaranteed under Article 21 of the Constitution.

The single Judge Bench while considering the various judicial precedents cited on both sides  categorically held that in the case of conflict between two rights i.e. right to fair trial and right to privacy, the fundamental right to privacy had to yield to right to fair trial and thus any incriminating evidence collected through breach of privacy was admissible in the court of law. The court had harmoniously interpreted two fundamental rights which flows out from Article 21 of the Constitution and had observed that no fundamental right is absolute.

The Court relied upon the decision of the Supreme Court in M.P. Sharma v. Satish Chandra[15]  wherein it was contended that the evidence collected should be inadmissible being an illegally compelled evidence and thus is violative of Article 20(3) of the Constitution, the Supreme Court held that although the search or seizure was illegally conducted and may amount to breach of a fundamental right but that would not make the search or seizure invalid in law. The court also relied upon a Supreme Court decision of Pooran Mal v. Director of Inspection (Investigation),[16] wherein the seizure of account books, documents and valuables by income tax authorities was challenged to be in conflict with Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution.

The Supreme Court while interpreting the provision of the Evidence Act, 1872 noted that the only test of an admissibility of evidence is its relevancy  and thus it is immaterial whether the evidence is procured through an illegal search or seizure.

Investigation is an Intrusion to Privacy, but the Unearthing of Truth must Happen in the Interest of Justice

The year 2020 has not only been marred by so many deaths due to  Covid-19, but also under mysterious circumstances particularly the much media investigated and publicised case of  Sushant Singh Rajput. Due to dissemination of personal information in public both from the right and wrong parties (referring to the parties in dispute), there is a privacy angle that has gained prominence.

In normal instances, investigation are done by State police and investigative bodies under the Government (State or Central, or both), but the mysterious stories including foul play circling round the matter has allowed the media to take centre stage in investigation. One of the good instances wherein due to free media reporting, the case is probably heading in the right direction otherwise it would have gone under cover long ago. Interestingly, from call data records to WhatsApp chats are on display in several news channels.

Now, this is personal information. Given the background, it may be worthwhile to look into some judicial pronouncements particularly from the admissibility of evidence and court’s opinion on privacy with respect of phone taping. It may be further provided that in current times a separate process is required for accessing phone records from the telecom providers and these pronouncements should not be read in entire isolation.

In R.M. Malkani v. State of Maharashtra[17] it has been held that conversation that is tape-recorded by an external device, without tampering or interrupting telephone lines, is admissible in evidence. In this case the Supreme Court has spelt-out three conditions for admissibility of a tape recording, namely, (a) relevance, (b) voice identification; and (c) proof of accuracy. Further it has been held that evidence, even if procured illegally, is admissible.

In another case of Tukaram S. Dighole v. Manikrao Shivaji Kokate[18], it has been held that tape recordings of speeches are documents under Section 3 of the Evidence Act, 1872 which stand on no different footing than photographs, and are admissible after satisfying the three conditions as laid down inter alia in R.M. Malkani[19]. Further in N. Sri Rama Reddy v. V.V. Giri[20], it has been held that a tape recording can be used to corroborate as well as contradict evidence.

There has been contrary pronouncements as well to include as in State of Punjab v. Baldev Singh[21] where the Supreme Court has held that while considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot  allow admission of evidence against an accused where the court is satisfied that the evidence had been obtained by conduct of which the prosecution ought not to take advantage, particularly when that conduct causes prejudice to the accused.

With times changing, tape recordings have been replaced with WhatsApp chats, however the above principles should still be applicable subject to any evolving judicial pronouncements and evidence laws pertaining e-information.

To conclude, right to privacy is not an absolute right and has to be placed in the context of other rights and values depending upon the facts of the case. And we see the beam balance swaying on either side when right to privacy and other rights are involved as we researched in the foregoing.


*Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. **Sayantan Dey, Legal and Compliance Professional and Ujjwal Agrawal, Student Researcher Corp Comm Legal.

[1]      Bennett Coleman and Co. v. Union of India, (1972) 2 SCC 788: AIR 1973 SC 106; State of U.P. v. Raj Narain, (1975) 4 SCC 428; Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641: 1986 AIR SC 515.

[2]      (2017) 10 SCC 1.

[3]      S. 8(1)(j) of the Right to Information Act, 2005.

[4]      (2013) 1 SCC 212.

[5]      (2013) 14 SCC 794.

[6]    (2018) 11 SCC 426.

[7]      Supra (Note 4).

[8]      Supra (Note 5).

[9]      Supra (Note 4).

[10]    Supra (Note 4).

[11]  Banners Placed on Road Side in the City of Lucknow, In re, 2020 SCC OnLine All 244.

[12]  <https://www.livemint.com/news/india/sc-new-bench-to-hear-plea-against-allahabad-hc-order-on-lucknow-posters-11584003637212.html>.

[13]    Deepti Kapur v. Kunal Julka, 2020 SCC Online Del 672.

[14]    (2017) 10 SCC 1.

[15]    AIR 1954 SC 300.

[16]    (1974) 1 SCC 345.

[17]    (1973) 1 SCC  471 : AIR 1973 SC 157.

[18]    (2010) 4 SCC 329.

[19]    (1973) 1 SCC  471 : AIR 1973 SC 157.

[20]    (1970) 2 SCC 340.

[21]    (1999) 6 SCC 172.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Full Bench of Justice Adarsh Kumar Goel (Chairperson) and Sheo Kumar Singh (Judicial Member), Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members) addressed a matter wherein violation of Air and Water Act has been stated and ground for polluted environment is the lack of funds with the local body.

In the present application, the grievance was with regard to the violation of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 in a village in Himachal Pradesh on account of failure to handle waste which is being burnt causing air pollution, resulting in diseases, loss of livestock and contributing to forest fires and loss of wildlife.

Increase in monkeys, feral dogs and scavengers namely crows, vultures, etc. have also been noticed. Further, the Dumpsite in hilly terrain has been overflowing and contaminating water body, which is a source of irrigation.

The above-stated deficiencies have been pointed by relying upon the photographs and letters addressed to the authorities.

Deputy Commission and the Himachal Pradesh State Pollution Control Board, both had sought a report vide its order dated 14-01-2020.

In the report filed n 13-11-2020 following was stated:

As per the said report, the Joint Inspection Committee had directed the Municipal Council, Hamirpur:- (i) to join the corners of RCC retaining wall with the hill ~ide to avoid spillage of Solid Waste (ii) to provide proper fencing to avoid entry of stray animals inside the facility (iii) construct storm drain of adequate size to avoid entry of storm water/rain water and (iv) to ensure that no fire incident/forest fire take place in the solid waste processing facility. Being a nodal agency, State Board also issued directions vide office letter dated 14/02/2020 to Municipal Council, Hamirpur to comply with the recommendations of the Joint Inspection committee.

It is further submitted that the Joint Inspection Committee was once again requested by the State Board on 17.10.2020 to re-inspect the site to verify whether the recommendations of the said committee have been complied with by M.C. Hamirpur at its Solid Waste Processing Facility. Recently, joint inspection of the site was once again conducted on 10.11.2020, under the Chairmanship of Addl. District Magistrate, Hamirpur alongwith Sub Divisional Magistrate Hamirpur, Environmental Engineer, (HPSPCB, Una), Executive Officer, (Municipal Council Hamirpur), Asstt. Engineer, (Jal Shakti Vibhag, Hamirpur) and Asstt. Environmental Engineer, (HPSPCB, Una).

Bench noted that the deficiencies still persist and the reason for the failure to take action on the ground has been lack of funds with the local body.

Tribunal held that the ground of “lack of funds” is not a valid ground as clean environment is a fundamental right for which funds are to arranged by the authorities either by collection from the citizens concerned or otherwise.

In view of the above, Bench directed the Secretary, Urban Development Department, Himachal Pradesh to ensure further remedial action.

Matter has been further listed for consideration on 24-03-2021. [Rita Sharma v. State of H.P., Original Application No. 05 of 2020, decided on 13-11-2020]


Advocates for the parties:

Applicants: Tushar Giri, Advocate

Respondents: Sanjay Kumar, Advocate for HPSPCB

Case BriefsHigh Courts

Jharkhand High Court: S. N Pathak J., upheld the award applying the principle of equal pay for equal work.

 The facts of the case are that the respondent –workman was appointed by the petitioner management i.e Food Corporation of India on the post of Hindi Typist in on casual basis without any appointment letter being issued to him or being appointed against any sanctioned post. On 06.05.1984, the casual service of the workman was terminated which was challenged by him before the Central Government Industrial Tribunal No. 1 at Dhanbad which held that the workman completed 240 days of service and since he had not been paid retrenchment compensation, so his termination of service was wrong and he must be reinstated with full back wages and also entitled for pay protection vide award dated 08.08.1990. Later, the Management on 03.02.1995, issued Circular inviting applications from internal candidates fulfilling eligibility criteria for filling up the post of Hindi Typist, the workman/respondent did not apply for the same and chose to raise industrial dispute claiming regularization of service under Section 10 of the Industrial Dispute Act which was decided in favour of the workman Being aggrieved by the same, the Management has preferred instant writ petition.

 Counsel for the petitioners submitted that the concerned workman has not been able to bring on record the appointment letter nor did he possess the requisite qualification and has never appeared in any selection process held by the Management and did not fulfil the conditions and criteria as laid down in FCI Staff Regulation of 1971. Hence, the direction to regularize the workman in service is totally contrary to law making the award unsustainable and the same is fit to be set aside.

 Counsel for the respondents submitted that the writ petition is not maintainable and is fit to be dismissed. He further submitted that the respondent-workman was appointed on 04-12-1982 and since then he is in continuous service without any break and that there is no difference between the work of a casual Hindi Typist or the permanent Hindi Typist and the workman is performing the same, similar and identical duties to that of a regular Hindi Typist and the long continuous service of more than 25 years itself is sufficient to prove eligibility of the workman. It was further argued that in spite of having sanctioned vacant post, the concerned workman has not been regularized arbitrarily in order to deny him regular pay scale as also to deny the benefits of regular services and accordingly, the Award has rightly been passed holding the workman entitled to be regularized as a Hindi Typist with full wages.

The Court relied on judgment titled Bharat Bank Ltd. v. Employees, AIR 1950 SC 188 and observed that,

“61. In settling the disputes between the employers and the workmen, the function of the tribunal is not confined to administration of justice in accordance with law. it can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.”

 The Court further observed that the law is well settled that there has to be equality before the law. the workman is entitled to equal pay for equal work. Equal pay for equal work is not expressly declared by the Constitution as a fundamental right but in view of Directive Principles of State Policy, as contained in Article 39(d) of the Constitution of India, “Equal pay for equal work” has assumed the status of the fundamental right in service jurisprudence having regard to the Constitutional mandate of equality in Articles 14 and 16 of the Constitution of India. It ensures a welfare socialistic pattern of a State.

The Court held that even though the workman was reinstated but instead of regular Typist, he was allowed to join as a casual typist in the year 1991. From the evidences brought on record, it appears that there were regular appointments of regular typist by the Management but the concerned workman was neither informed nor any opportunity was given to confirm his as a regular typist. Even after his reinstatement, the Management made regular appointments in the years 1994, 1995 and 1996 but nothing has been brought on record to show that the concerned workman was ever informed or given any opportunity to participate for appointment as a regular typist. The nature of work of casual typist and the regular typist are the same and similar. The workman concerned has been discriminated as he was getting salary of Rs 1,400 though, on salary hike, he was getting a sum of Rs 1,890 per month but the regular typist who was appointed in the year 1984, was getting a monthly salary of Rs 8,000, besides the other benefits of Earned Leave, Commuted Leave, etc.

In view of the above, the award is upheld and petition dismissed.[FCI v. Anil Kumar, 2020 SCC OnLine Jhar 878, decided on 21-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.K. Deshpande and N.B. Suryawanshi, JJ., while addressing an issue with regard to the deduction of pension by the Bank without any confirmation from the employer, observed that,

“The pension payable to the employees upon superannuation is a ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India.”

“Pension cannot be deducted without authority of law.”

Petitioner a retired assistant foreman had a basic pension of Rs 1,334 as on 01-10-1994, consequent upon an increase in the pension and dearness allowance, the basic pension of Rs 25, 634 was fixed, for which the petitioner was entitled to and accordingly he was paid.

Right to Information Act, 2005

In the month of August, 2019 petitioner’s pension was reduced without consent or knowledge of the petitioner and thus he filed an application under the Right to Information Act, 2005 to know the reason for deduction and details as to the revision of the pension during the period 2015-16 and 2016-17.

Excess Payment of Pension

Respondent stated that there was an excess payment of pension to the petitioner.

Petitioner in view of the above approached the Court challenging the action of the respondent and sought a further direction to the respondents to restore the position in respect of payment of pension, prevailing prior to the deduction which commenced from 01-08-2019.

Excess Payment by SBI

State Bank of India-respondent stated that an amount of Rs 872 per month was erroneously paid in excess to the petitioner due to technical error in the system.

Reserve Bank of India

According to Circular No.RBI/2015-16/340-DGBA.GAD.No.2960/45.01.001/2015-16 dated 17-3-2016, clause (c), the bank claims to have an authority to recover the excess payment to the petitioner.

“c) In case the pensioner expresses his inability to pay the amount, the same may be adjusted from the future pension payments to be made to the pensioners. For recovering the over-payment made to pensioner from his future pension payment in installments 1/3rd of net (pension + relief) payable each month may be recovered unless the pensioner concerned gives consent in writing to pay a higher installment amount.”

Employer’s stand is very clear in the present case that the fixation of the petitioner’s pension was correct and proper.

Further, the employer has supported the claim of the petitioner and has no role to play in the matter of reduction of pension or its recovery.

Bench states that it is not the authority of the Bank to fix the entitlement of the pension amount of the employees other than the employees of the respondent-Bank.

Hence the action of the Bank to reduce the pension of the petitioner is unauthorised and illegal.

Furthermore, the Bank has failed to demonstrate any technical error in the calculations.

With regard to the RBI clause as stated above, Court stated that “once we hold that in fact there was no excess payment made to the petitioner, the question of applicability of the instructions issued by the RBI or undertaking given by the petitioner does not arise.” 

Principles of Natural Justice

Without following the principles of natural justice in the manner of either carrying out correspondence with regard to the correctness of the pension or an explanation in respect of the deduction, the said action on the part of the Bank is arbitrary, unreasonable, unauthorised and in flagrant violation of the principles of natural justice.

Breach of Trust

Bank is the trustee of the pensioner’s account and has no authority in the eyes of the law to dispute the entitlement of the pension payable to the employees other than those who are employed in the bank.

To tamper with the account is nothing but a breach of trust.

Court directed Bank to refund the amount of Rs 3,26,045 to the petitioner by crediting it in his pension account with interest at the rate of 18% p.a. from the date of deduction.

Further, the bank is required to be directed to pay the costs of Rs 50,000 to the petitioner towards the expenses of this petition.

Unfortunately, the time has come to tell the Bank that the aging is natural process, which leads to weakening of the body and mind.

Adding to its conclusion, Court stated that the Bank officials must realize that tomorrow it may be their turn, upon superannuation, to fight for the pension or post-retiral benefits. The thought process, therefore, to be adopted should be of a person in a situation like the petitioner.

Respect, dignity, care, sensitivity, assistance, and security would automatically follow.

Senior Citizens

It is a high time for the Banks to create a separate cell and to device a method to provide personal service through the men of confidence, at the door-step to the old aged, disabled and sick persons who are the senior citizens.

Bench directed registry to forward the copies of the Judgment to the Centralized Processing Pension Centres of all the Nationalized Banks and also to the Reserve Bank of India and the Chief Secretary, Government of Maharashtra, to consider the question of the constitution of separate cell and release of appropriate guidelines so as to attain the constitutional goal of providing respect, dignity, care, sensitivity, assistance and security to all the pension account holders in the Banks.[Naini Gopal v. Union of India, LD-VC-CW-665 of 2020, decided on 20-08-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Bibek Chaudhari and Soumen Sen, JJ., addressed a matter wherein a reporter published a story on witnessing the police personnel bribing a truck driver and further driving negligent get hold of the truck resulting in the death of a person.

Petitioner a reporter of ETV Bharat made a news report stating, inter alia that some police personnel was collecting bribe from a truck loaded with sand and while chasing the truck, the vehicle owned by the police department was being driven in a rash and negligent manner.

The result of the rash and negligent driving caused the death of a person.

Above was the prima facie reason for lodging a complaint against the petitioner.

Bench on perusal of the materials on record stated that, it is a fundamental right of a press reporter to publish any news, which may not be palatable to the administration.

In order to stifle and muzzle the voice of the reporter this case has been registered against the petitioner.

Court also noted the fact that the police have taken cognizance of the report which prima facie discloses the offences committed by its own personnel.

Hence, in view of the above, Police Superintendent of the District concerned has been directed to initiate enquiry regarding registration of the FIR against the ETV reporter and to investigate about the collection of money by the police personnel, the incident of which has been published by the reporter and to take appropriate action against the offenders.

Therefore, the petitioner shall be released on bail. [Avishek Dutta Roy, In Re., 2020 SCC OnLine Cal 1319, decided on 30-07-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and Sarang V. Kotwal, J., has advised the Maharashtra Government to take an informed decision regarding the concerns voiced by advocates and their staff. The Court was hearing PILs which sought inclusion of advocates and legal practitioners in the list of essential service providers.

In the present petition, a legal practitioner sought exemption of lawyers and their staff from the restrictions of the lockdown for the purpose of Court work as well as for an order on the respondents to consider the advocates and legal service providers as belonging to the category of “essential services”.

Coordinate Bench Decision

Coordinate Bench on hearing petitioner’s concern, stated that inclusion of a particular category of persons within “essential services” is within the exclusive domain of the State Legislature and that no mandatory direction, much less any direction, can be issued to the State Legislature to categorize advocates and their staff as providing “essential services” and hence had rejected the same. However, liberty was granted to file representation before the State Government. Pursuant to the order, representation was filed before the State but no decision has been taken.

Concerns

Advocates and their staff are not presently being allowed to avail train services. Diasbled thereby, a major section of the advocates have been precluded from participating in whatever physical hearings that are being conducted and in assisting the Courts.

Hence, the bench asked the State to apply its mind and take an informed decision with regard to the concerns voiced by the advocates as well as their staff.

State must not be ignorant that access to justice is now recognised as a Fundamental Right and advocates and their staff constitute an integral part of the entire system, which is dedicated to “delivery of justice”.

Court asked the matter to be placed on 7-08-2020. [Chirag Chanani v. UOI, 2020 SCC OnLine Bom 832 , decided on 31-07-2020]

Case BriefsCOVID 19High Courts

Gujarat High Court: Taking suo motu cognizance of the way private hospitals in the State of Gujarat are indulging in blatant profiteering in the time of Covid-19, the Division Bench of J.B. Pardiwala and Ilesh J. Vora, JJ., gave important directions to the State Government in relation to regulation of private hospitals; proper arrangement of sending the migrants to their homes and overall management of every aspect of governance to deal with one of the greatest humanitarian crisis the world has seen. The Court also expressed its deep respect for all the frontline ‘corona warriors’ for showing exemplary dedication towards public welfare.

Prior to issuing directions, the Bench, at length discussed the reports provided by various Government Departments highlighting the steps they have taken to alleviate the sufferings of the public. The Court further noted that how the print media highlighted the fact that Gujarat has been one worst hit with the coronavirus and how frontline ‘corona warriors’ like the doctors are not being provided with enough PPEs to protect themselves from being infected. The Bench observed that the public healthcare system is completely overwhelmed with the situation. The Court also took notice of the fact that how several private hospitals are using this situation to charge exorbitant amount of money from people to conduct tests and treatments. The Court also lamented upon the situation prevalent in Civil Hospital at Ahmadabad where the situation is such that it has ‘contributed the most in increasing the number of Covid-19 deaths in the State.’ Finally the Court also took notice of the news published in The Times of India, wherein they had pointed out how the revenue department has been issuing threats to boycott the work related to the migrants as “it is not a task meant for the employees of the revenue department”.   

Perusing various Supreme Court decisions; relevant statutory provisions, Fundamental Rights and Directive Principles of the State Policy as enshrined in the Constitution, The Court issued the following relevant directions-

  • Expressing its exasperation upon seeing that how multi speciality hospitals in the State are seeking to profit off people’s perils, and pointing out that health is a recognised Fundamental Right in the Constitution, the State is obliged to protect it. Therefore the Government was directed to initiate legal proceedings against all those private / corporate hospitals that are not ready and willing to honour the understanding arrived at with regard to treating the COVID19 patients. Directions were given to the State Government to initiate talks with certain excluded multi-speciality hospitals and enter into a MoU with them. The Court further pointed out that in times like these; the private hospitals have both moral and legal obligations.
  • The State Government was directed to issue a Notification making it mandatory for all the multi-speciality private / corporate hospitals in the city of Ahmedabad and on the outskirts to reserve 50% of their beds (or such other capacity, as the State Government may deem fit and proper on the basis of the increase in the number of cases). Furthermore the State Government should explore the possibility of extending Ayushman Bharat project to the private hospitals as well.
  • Regarding the situation persisting at the Civil Hospital in Ahmadabad, the Court directed the Government to transfer the doctors not working properly in the hospital to other districts; improve working conditions of the resident doctors; ascertain accountability of senior officers who have failed to improve the health care provided by the hospital; increase the number of hospital beds and ventilators etc.
  • The Court directed the Gujarat Government to adopt the policy of State of Maharashtra, to ask the general physicians to run their own clinics or serve in the Government COVID hospitals. It was further directed that the Government must ensure the procurement of testing kits thereby enabling the private players to carry out Covid testing at Government prescribed rates.
  • The Railway authorities were directed to waive of one way charges of migrant labourers or in the alternative, for the State Government to bear such charges.
  • Finally taking a stern notice of the actions of the revenue department in issuing threats to boycott the tasks related to the migrants, the Court directed to State Government to take strict actions to resolve the issue.

Giving out concluding remarks, the Court drew an analogy between the Covid- 19 crisis and the time when Titanic sank. Pointing out that how only 1 ship ‘The Carpathia’ which was farthest away from the sinking ship was the one and only to respond to the distress call sent out by the Titanic. Commenting that in an unprecedented crisis such Covid-19, all the organs of the State; the private players; the NGOs all must try to emulate the spirit of The Carpathia and try to work together to alleviate the sufferings of the people, especially the poor. [Suo Motu v. State of Gujarat, Writ Petition (PIL) No. 42/2020, decided on 22-05-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., allowed a bail application filed for grant of regular bail in connection with the offences punishable under Sections 363, 366-A and 376(2)(N) of the Penal Code, 1860 and Section 5(L)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 

An FIR by the father of the victim mentioned that the applicant/accused had kidnapped her daughter. The Counsel for the applicant, Vikas Anand submitted that the applicant was an innocent person; he had no criminal history and during the trial, the prosecution’s case had not been supported by the victim herself and father of the victim.

The Court while allowing the bail relied on the decision of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 which stated that the personal liberty is very precious fundamental right and it should be curtailed only when it becomes imperative according to the facts and circumstances of the case. [Ajay Sarkar v. State of Uttarakhand, First Bail Application No. 2276 of 2019, decided on 04-03-2020]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a writ petition filed by the petitioners claiming that the Additional Director General of Police was unlawfully encroaching upon their land. 

The petitioners had claimed that they had approached the relevant authorities, but no action was taken by them. They subsequently filed a writ petition praying the Court to declare the construction over the land in dispute by the respondent as illegal, unauthorized, and encroachment. They prayed for dismantling the unauthorized construction of the hotel building and to remove the restriction/hindrance caused in the way of the petitioners in approaching the property.

The Counsel for the petitioners, Balwant Singh Kushwah, argued that the right to hold the property was a fundamental right and, therefore, the petition was maintainable. It is also submitted that the respondent had also encroached upon some other plots and accordingly, the husband of the petitioner had also filed a civil suit for declaration of title and permanent injunctions. By an order dated 30-06-2014 passed in a Civil Suit, the respondent was restrained from interfering with the possession, however, the respondent had dispossessed the husband of the petitioner, therefore the suit would not be an efficacious remedy. It was further submitted that the husband of the petitioner had not filed an application under Order 39 Rule 2-A CPC. Furthermore, there was no averment in the petition that the order stated above had attained finality.

The Court, however, held that it was incorrect to state that, “right to hold a property is a fundamental right”. They explained that the petition was filed primarily against the respondent in his individual personal capacity and not against any act done by him in the capacity of Additional Director General of Police. It is a well-established principle of law that the writ petition against a private individual is not maintainable. If the petitioner was of the view that the respondent was illegally trying to encroach upon the land or had illegally taken possession of the said land, then they always have an efficacious remedy of filing a Civil Suit. The Court was of the opinion that the petition was not maintainable and dismissed it. [Laxmi Devi v. State of M.P., 2019 SCC OnLine MP 3629, decided on 25-11-2019]

Case BriefsHigh Courts

Allahabad High Court: Surya Prakash Kesarwani, J. dismissed the present “PIL” while imposing an exemplary cost on the petitioner for abusing the process of the court.

The petitioner filed this PIL for removal of encroachment and illegal possession of respondents from particular plots in the District Ballia which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.

By the order of the Sub-Divisional Magistrate, some plots were recorded as banjar and some as ‘khalihan’, ‘khad ka gaddha’ and ‘khel ka maidan’ after they were exchanged. These newly recorded banjar lands were allotted for residential purposes to nineteen persons. After allotment of land for residential purposes, the respondents constructed their houses (huts and tin shed) and they still reside. These people have no other place of shelter except these houses.

Counsel for the petitioner, Jitendra Shanker Pandey submitted that no bhoomidhari rights shall be created on the land allotted and it is also set apart for public purposes. The aforesaid land falls under Section 132 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

The Standing Counsel stated that present PIL is not only wholly devoid of substance but it is also abuse of process of Court. The petitioner has completely failed to disclose his credential to invoke the PIL.

The Court after considering the submissions of both the parties framed some questions for determination:-

  1. Whether removal of shelter of respondents would amount to infringement of their fundamental rights guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India?
  2. Whether as a consequence of cancellation of lease should the State-respondents provide alternate accommodation/shelter?
  3. Whether any relief is granted in the present PIL?

The Court observed that the landless agricultural labourers were residing before 1994. Therefore, the disputed lands which were part of some public utility land were exchanged by order of the Sub-Divisional Officer which was passed after due inquiry and spot inspection by the revenue authorities. The lease was also granted by a competent authority.

For the purpose of strengthening the arguments, some cases were relied upon – U.P. Avas Evam Vikas Parishad v. Friends Cooperative Housing Society Ltd., 1995 Supp (3) SCC 456, para 8; State of Karnataka v. Narasimhamurthy, (1995) 5 SCC 524, Chameli Singh v. State of U.P., (1996) 2 SCC 549, and Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, (1997) 11 SCC 121. In all these cases, the Supreme Court held that right to shelter is a fundamental right, guaranteed under Articles 19 and 21 of the Constitution of India.

After observing the facts and circumstances of the case and the submissions of the parties, the Court held that – “Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.

The court observed that the weaker section of the society like the poor and landless agricultural labourers have the right to basic human and constitutional rights to residence. Thus, it becomes the duty of the State to fulfill those. But gives no person the right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility.

The Court after contemplating on the point that the petitioner had not shown his credential and is clearly visible that is his interest and his son’s alone in the filing of this petition. This indicates abuse of process of Court by the petitioner in filing the present PIL and suppression of material facts. Therefore, the exemplary cost is necessary to be imposed upon the petitioner as the view taken in the case of Punjab State Power Corpn. Ltd. v. Atma Singh Grewal, (2014) 13 SCC 666 and Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, (2017) 5 SCC 496.

As the questions for determination were interlinked, the conclusion which comes out is that Right to Shelter is a fundamental right and the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondents. If the State authorities find it indispensable to remove the respondents they shall provide suitable accommodation to them.[Rajesh Yadav v. State of UP, 2019 SCC OnLine All 2555, decided on 01-07-2019]

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

Rajasthan High Court: Sanjeev Prakash Sharma, J. dismissed a petition filed by a man who assailed the lower court’s order rejecting an application for conducting a DNA test of his wife’s son, holding that the petition was devoid of merits.

Petitioner herein had filed an application before the learned Civil Judge praying for conducting a DNA test of a son born to his wife on the ground that his wife (respondent herein) was pregnant prior to getting married and therefore, the child born was not his child. He pleaded that the sonography examination of his wife during pregnancy reported that she was pregnant for 35 weeks and 06 days. His application was rejected holding that as the petitioner was living as the husband with the respondent during the period of pregnancy, and their marriage was still subsisting, the child borne from her would be presumed to be the petitioner’s son in terms of Section 112 of the Evidence Act, 1872. Aggrieved by the said order, instant petition was filed.

Petitioner’s counsel, Rajneesh Gupta, relied on the judgment passed by Coordinate Bench of the Rajasthan High Court, in Dalip Singh v. Ramesh, 2017 SCC OnLine Raj 2720, whereby it was held, “If the factum or presumption of paternity is disputed by someone, more particularly by the alleged father, it is difficult nay impossible for the party alleging such paternity to prove it without any scientific investigation.” The respondent contended that the application contained false averments. She asserted that the pregnancy and birth of her son were on account of marriage and relationship with the petitioner. There was no report from the hospital where she had been undertaking her treatment and the said report obtained was fictitious.

The Court relied on the judgments in Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554, and Goutam Kundu v. State of W.B, (1993) 3 SCC 418, and concluded that the reasoning adopted by the trial court for rejecting the application was incorrect. Merely because of presumption to be drawn under Section 112 of the Evidence Act, an application for seeking a DNA test could not be ousted.

However, deciding on the merits of the case, the Court observed, “it would not be appropriate to allow a DNA test to be conducted at the stage merely on the basis of the bland statement of the husband making allegations without appropriate legal evidence on record.”  It further held that the petitioner had to establish beyond reasonable doubt about his non-access to his wife during the entire period. Reliance was also placed on the recent judgment of this court in Mahesh Chand Sharma v. State, SBCW Pet. No. 2067 of 1999 (decided on 07-03-2019), where the Court observed, “In the circumstances, an order of getting DNA test of a child goes contrary to the basic fundamental right of the said individual child.”

The Court specified that in any case where such application for conducting DNA test of a minor is filed, it would be first examined, “(a) whether there is an imminent need to conduct such DNA test; (b) Whether such test would result in harming the status of the minor in any form; (c) such report is not to be made public.”

In the light of the above, the application moved by the petitioner was rejected, though on the different ground; and the writ petition was dismissed.[Mahendra v. Mamta, 2019 SCC OnLine Raj 584, decided on 23-05-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Harsimran Singh Sethi, J. allowed the petition on the settled principle of law that financial difficulty cannot be a valid ground to withhold the retirement benefits.

A writ petition was made against the grievance which was raised by the petitioner that she retired on attaining the age of the superannuation while working as Inspector from Municipal Council and all benefits which she was entitled upon were not released immediately.

The facts of the case were that after the retirement of the petitioner the gratuity and leave encashment was not paid to her immediately. A case was filed by the petitioner and thus order for the release of benefit was passed against the respondent.  In pursuance of the order passed by the court, the respondent admitted that due to paucity of the fund, all the benefit could not be released and after the order respondent decided to pay the amount which was still pending towards the petitioner and was agreed to be paid in six monthly installments. The petitioner, therefore, submits that as the dues of the petitioner were released by the respondent after 5 years of her retirement she was entitled to the interest on the said delayed payments. Hence, this application.

High Court opined after discussing the judgment of Ram Karan v. Pepsu Road Transport Corpn., 2005(3) PLR 580, in which it was held that In case a pensioner is not even paid the genuine dues like the medical reimbursement, he is not expected to enjoy the life nor will he feel secure. The Constitution of India contains a large number of rights which guarantee human rights. It recognizes the right of every citizen to an adequate standard of living for himself and his family members, which also includes the improvement of living conditions besides providing adequate food, clothing and housing. A welfare State has to take all appropriate steps to ensure the realization of these rights. Court also discussed the case of A.S. Randhawa v. State of Punjab, 1997 (3) SCT 468, in which the court held that if the State commits any default in the performance of its duty thereby denying to the retiree the benefit of the immediate use of the money, there is no gainsaying the fact that he gets a right to be compensated and, in our opinion, the only way to compensate him is to pay him interest for the period of delay on the amount as was due to him on the date of his retirement.” Thus it was held that petitioner is held entitled for interest at 9% per annum from the date the amount became due till the same were to be released in her favor.[Vinod Kumari Sharma v. State of Punjab, 2019 SCC OnLine P&H 866, decided on 28-05-2019]

Case BriefsHigh Courts

Bombay High Court: A Bench of Sunil B. Shukre and Pushpa V. Ganedliwal, JJ. quashed a preventive detention order passed against the petitioner and set him at liberty observing, inter alia, that he was deprived of his fundamental right under Article 21 of the Constitution of India.

The petitioner was preventively detained pursuant to the impugned order passed by the District Magistrate, Wardha.  Yogesh V. Nayyar, Advocate for the petitioner challenged the said order on various counts. Per contra, Nitin Rode, Additional Public Prosecutor supported the order of preventive detention.

The High Court perused the record and was of the view that the impugned order became highly suspect in eyes of law as the DM, while passing the impugned order, took into consideration the fact that the petitioner was indulging himself in sale of liquor containing about 20.60% of ethyl alcohol. This, according to the Court, ought to be ignored in the facts and circumstances of the case at hand. Moreover, it was noted that the representation made by the petitioner under Section 10 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 was not considered by the Advisory Board. According to the Court, “This would mean that a valuable right available to the petitioner has been taken away from him. After all, right to liberty is a fundamental right enshrined in Article 21 of the Constitution of India and although this right is subject to reasonable restriction and can also be temporarily taken away in accordance with the procedure established by law, needless to say, the procedure has to be reasonable and the procedure prescribed for restricting this right has also to be followed in letter and spirit. If that is not done, there would be a deprivation of the fundamental right of the petitioner without following the procedure established by law. This is what has happened in the present case and, therefore, in our view, this is a compounding factor to what is seen by us already as an unjustifiable impugned order, making the impugned order as completely vulnerable in law.” Holding as such, the Court allowed the petition and set the petitioner at liberty. [Amir Khan Nasib Khan Pathan v. State of Maharashtra, 2019 SCC OnLine Bom 494, dated 15-03-2019]