Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., expressed that employees cannot seek any direction to fill up the post or claim a promotional post.

What was the relief sought in the present matter?

To direct the respondent to consider petitioner’s representation in connection with the acceptance of reviewed cadre strength by relying upon the vacancy position available during 2019-2020 as expeditiously as possible as to enable him to get his name included in the select list prepared in the said regard.

High Court expressed in the above regard that,

Promotion per se cannot be claimed as a matter of right by the employee.

No doubt, consideration for promotion is a fundamental right of the employee.

Further, the Court added that, administrative prerogative cannot be insisted upon by the employees though they are eligible for promotion/appointment, as the case may be.

The petitioner claimed that he was working as District Revenue Officer and was eligible for the conferment of post in Indian Administrative Service and if Cadre Strength Review Committee has been constituted duly in time, he would be getting an opportunity of securing appointment as I.A.S Officer. However, such a claim is hypothetical in nature.

Bench stated that it cannot make a decision on future events.

 “…once a decision is taken by the Authority Competent to prepare a panel for promotion, then all eligible persons are to be included for grant of promotion to the post of I.A.S.”

 High Court added that, as far as I.A.S. is concerned, the Central Government has to take a decision and therefore, the petitioner cannot have any right to claim that Cadre Strength Review Meeting is to be conducted for the purpose of granting promotion.

Additionally, the Court observed that mere preparation of panel by the Authority Competent would not be a ground to confer any right on the petitioner to seek a direction against the Government of India to convene a Review Committee Meeting and to prepare a panel.

In the present matter, petitioner had not established even a semblance of legal right to direct the respondent to consider his representation and mere direction to the Authority concerned to consider the representation would do no service to the cause of justice in the absence of establishing any legal right.

The above petition was dismissed on being devoid of merits.[B. Muthuramalingam v. Government of India, 2022 SCC OnLine Mad 1306, decided on 15-3-2022]


Advocates before the Court:

For Petitioner: Mr R. Anand

For Respondent: Ms L. Victoria Gowri, Assistant Solicitor General of India

Case BriefsSupreme Court

Supreme Court: While deciding the instant appeal wherein the appellant challenged the externment order issued against him under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,

If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1) (d) of the Constitution”.

Facts: As per the facts; the respondents, while exercising their powers under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, issued an externment order dated 15-12.2020. By this order, the appellant, who is a resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed to remove himself outside the limits of District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna.

A statutory appeal was preferred by the appellant against the impugned order of externment, but the appeal was dismissed by the Appellate Authority. The appellant further challenged the impugned order by filing a writ petition under Article 226 of the Constitution of India before the Bombay High Court. A Division Bench of the Bombay High Court dismissed the writ petition and the impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the IPC, are of grave and serious nature which are causing disturbance to the public at large.

Contentions: The counsel for the appellant, Sandeep Sudhakar Deshmukh, contended that the act of passing the impugned order of externment was a mala fide act at the instance of a local Member of the Legislative Assembly (MLA) with the object of settling family disputes. He argued that, the offences stated in the impugned order, would not attract Section 56(1) and the rest of the offences stated in the order are “stale offences and there is no live link between the said three offences and the object of passing the impugned order of externment”.  He also submitted that under Section 58 of the 1951 Act, the maximum period for which a person can be externed is of two years and that in the impugned order of externment, no reasons have been assigned for externing the appellant for a maximum period of two years.

Sachin Patil, appearing for the respondents, urged that while passing the order of externment, the competent authority is not required to pass a reasoned order. The competent authority has recorded subjective satisfaction of the existence of the grounds as required under Section 56 of the 1951 Act.

Observations: After carefully perusing the facts and contentions of the parties, the Court noted that Article 19(1)(d) of the Constitution contains the fundamental right to the citizens to move freely throughout the territory of India, subject to reasonable restrictions as provided in Art. 19(5) of the Constitution. An order of externment passed under provisions of Section 56 of the 1951 Act makes serious inroads on the personal liberty of a citizen guaranteed under Article 19(1) (d) of the Constitution. Hence, the restriction imposed by an order of externment must stand the test of reasonableness.

The Court further noted that, externment order is an extraordinary measure, “Such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure”. The Court also observed that for the invocation of Section 56 (1), there must be

  • Objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger to persons or property
  • The competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC.
  • The competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part for their safety or their property.
  • The competent authority is not expected to write an elaborate decision. However, the competent authority must record the existence of one of the grounds in Section 56 (1) because if the order is challenged the competent authority must be in a position to show the application of mind.

Regarding the duty of a Court while testing an exterment order, the Bench noted that-

  • A Court while testing the order of externment cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded.
  • The Court can interfere when either there is no material or the relevant material has not been considered. “In the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness”

With the aforementioned observations, the Court stated that the bare facts of the case reveal there was an apparent non-application of mind while deliberating upon the impugned externment order. The Court also noted that the Order itself was passed in a casual manner and reeks of arbitrariness. Therefore, the order cannot be held sustainable. The Court also held that the Bombay High Court, being a Constitutional Court, was duty bound to test the externment order on established criteria. However the HC failed to notice the extraordinary nature of an externment order.

[Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99, decided on 28-01-2022]


*Judgment by: Justice Abhay S. Oka


Sucheta Sarkar, Editorial Assistant has put this report together 

 

Case BriefsHigh Courts

In Nadha Raheem v. C.B.S.E2015 SCC OnLine Ker 21660, Kerala High Court’s Single Judge Bench in the year 2015 dealt with petitions by two female students belonging to the Muslim community contending that the dress code prescribed by the Central Board of Secondary Education (C.B.S.E) of wearing half sleeve kurta/salvar would prejudice them, as their religious custom mandates them to wear a headscarf and also full sleeve dresses.

In the said case, the Standing counsel for C.B.S.E submitted that the dress code was specified by the C.B.S.E not intending to harass any student, on the contrary, to ensure that no untoward incident shall occur which would lead to cancellation of the examination.

The Standing Counsel had placed the Supreme Court decision by highlighting the extracts which revealed the indigenous methods by which copying was resorted to by means of electronic gadgets, wired to the body itself, and camouflaged by full sleeve dress and so on and so forth.

The Single Judge Bench of the Court noted that only two students came up before the Bench.

In Court’s opinion, the dress code could not be said to be wrong or improper.

However, Justice K. Vinod Chandran observed that,

 “…it cannot be ignored that in our country with its varied and diverse religions and customs, it cannot be insisted that a particular dress code be followed failing which a student would be prohibited from sitting for the examinations.”

Hence, the Court opined that no blanket orders were required in the petitions apprehending that they would be prohibited in writing the examination for the reason of their wearing a dress conducive to their religious customs and beliefs.

In the stated facts and circumstances of the case, High Court had directed that the petitioners who intended to wear a dress according to their religious custom, but contrary to the dress code, shall present themselves before the Invigilator half an hour before the examination and on any suspicion expressed by the Invigilator, shall also subject themselves to any acceptable mode of personal examination as decided by the Invigilator, but however, carried on only by an authorised person of the same sex.

If the Invigilator requires the headscarf or the full sleeve garments to be removed and examined, then the petitioners shall also subject themselves to that, by the authorised person, High Court stated.

Kerala High Court had also asked the C.B.S.E to issue general instructions to its invigilators to ensure that religious sentiments be not hurt and at the same time discipline was not compromised.

In the year 2016, the Kerala High Court while deciding the case of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, addressed a matter wherein prescription of dress code for All India Pre-Medical Entrance Test-2016 was questioned by the parties who professed Islam.

The ground on which the parties had challenged the dress code was the violation of the fundamental right as guaranteed under Article 25(1) of the Constitution of India.

The parties urged the Court to examine religious freedom in the light of the constitutional scheme.

Kerala High Court observed that, 

The State cannot interfere with the practice of religious affairs which would obliterate his religious identity. The environment in which one has to live is determined by the patterns of the idea formed by his conscience subject to the restrictions as referred under Article 25(1).

Adding to the above observation, in this decision, the Bench also stated that it was open for the State to regulate or make laws consistent with the essential practice of religion. However, while making a regulation or a law, the true import of the essential practice shall not be supplanted.

Petitioners case was that Shariah mandates women to wear the headscarf and full sleeve dress and therefore, any prescription contrary would be repugnant to the protection of the religious freedom.

“..the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram).”

 “The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion.” 

Giving significance to the Board’s attempt of ensuring transparency and credibility of examinations, Court stated that to harmoniously accommodate the competing interest without there being any conflict or repugnancy. The interest of the Board can be safeguarded by allowing the invigilator to frisk such candidates including by removing scarf. However, safeguard has to be ensured that this must be done honouring the religious sentiments of the candidates.

In 2018, Kerala High Court in Fathima Thasneem v. State of Kerala2018 SCC OnLine Ker 5267, while addressing the petition filed by Muslim girl students with the plea to be allowed to wear the headscarf as well as full sleeve shirt which was inconsistent with the prescribed dress code by the school they were studying in, observed that as one has the liberty to follow its own notions and convictions in regard to the dress code, in the same manner, a private entity also has the Fundamental Right to manage and administer its institution.

Justice A. Muhamed Mustaque while referring to the decision of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, stated that it is the Fundamental Right of the petitioners to choose the dress of their own choice.

Further, the Court held that it had to balance rights to uphold the interest of the dominant rather than the subservient interest and in the facts, in hand, the management of the institution was the dominant interest.

“Where there is priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.”

Hence the Kerala High Court held that the Muslim girl students could seek the imposition of their individual rights as against the larger right of the institution. Therefore, it was for the institution to decide whether the petitioners could be permitted to attend the classes with the headscarf and full sleeve shirt.


Presently the Karnataka High Court has been dealing with a somewhat similar situation, wherein the challenge was with regard to the insistence of certain educational institutions that no girl students shall wear the hijab (headscarf) whilst in the classrooms.

On 10-2-2022, the High Court on being pained by the agitations and closure of educational institutions expressed that

“…ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true.”

The Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., temporarily restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

The proceedings in the said matter are still ongoing and the Court is yet to pronounce its decision on the matter.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., granted bail to an accused on being satisfied with “reasonable grounds” as per Section 37 (b)(ii) of the NDPS Act, 1985.

An application under Section 439 of the Code of Criminal Procedure, 1973 for seeking bail in FIR under Sections 22 of the Narcotics, Drugs and Psychotropic Substances Act, 1985.

Factual Matrix

ASI Pawan Kumar received information that a person from Rohini Delhi was involved in sale and supply of Ecstasy (a party drug) in Delhi-NCR and would come near an apartment to deliver the same to someone else. On receiving the said information, the raid was conducted.

On conducting a formal search in light of provisions of NDPS Act, 100 Pills of Ecstasy were recovered and the same was seized. Hence, the FIR under Sections 22/29 of the NDPS Act was registered and further investigation of the case was carried out.

Accused disclosed that he had received the above-mentioned contraband from the applicant and later the applicant was apprehended and on recovering 20 grams of 3,4-Methylenedioxymethamphetamine (MDMA) from his possession, he was arrested.

In view of the above, charges were framed for the commission of offences under Sections 22 and 29 of the NDPS Act.

Analysis, Law and Decision

In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non-bailable, High Court expressed while referring to Section 37 of the NDPS Act.

Section 37 NDPS Act does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the two-fold conditions prescribed under the Section have been met.

Before granting bail, the Court must be satisfied with the scheme of Section 439 CrPC.

The Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds‟ for such satisfaction.

Elaborating further on the term “reasonable grounds”, Court expressed that, the said term is not capable of any rigid definition nor of being put into any straight-jacket formula, but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus, what may be reasonable in one set of facts may not be reasonable in another set of facts.

High Court noted that the main accused was charged with the possession of a larger quantity of contraband and on the basis of whose statement the applicant was arraigned and raised has already been released on bail. Hence the applicant’s application merited indulgence of this Court on the ground of parity.

“Reasonable Grounds” in the present matter were found by the Court.

The applicant had been incarcerated for more than 4 years as an undertrial, whereas on date, two of the witnesses have been examined and the trial remains pending.

On observing the above, Court expressed that,

Speedy Justice is a Fundamental Right enshrined under the ambit of Article 21 of the Constitution of India, and the same needs to be given effect by this Court in letter and in spirit, else it will remain as a dead letter of law. 

Supreme Court’s decision in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 was cited wherein detailed guidelines were laid down with respect to speedy trial. The said guidelines were also upheld by a 7- Judge Bench of the Supreme Court in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.

Conclusion

Applicant was in jail for more than 4 years and out of 14 witnesses only 2 were examined to date and no possibility of trial to be concluded in the near future

Hence, the applicant cannot be incarcerated for an indefinite period and the Court must step in to ensure speedy justice to the applicant.

In view of the above discussion, the applicant was granted bail and the Court laid down emphasis on parity and clean antecedents of the applicant.

The applicant was directed to furnish a personal bond of Rs 50,000, with two sureties of like amount and bail conditions, were laid down.

While allowing the application, Court directed Trial Court to conclude the trial expeditiously. [Mahesh v. State (GNCTD), 2022 SCC OnLine Del 394, decided on 8-2-2022]


Advocates before the Court:

For the Petitioner:

Mr. Akshay Bhandari and

Mr. Digvijay Singh, Advocates

For the Respondent:

Kusum Dhalla, APP for the State

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta J. allowed the petition and decided that the school will be converted to English medium subject to the decision taken by SDMC by majority of its members.

Background

The facts of the case are such that a school named Shri Hari Singh Sr. Sec. School, Pilwa has been functioning in village Pilwa since 1980. The school has been catering to the educational needs of about 600 children from all sects including girls residing in such village and nearby villages. The medium of instruction in the school is ‘Hindi’ since its inception. The petitioner 1 is the School Development Management Committee i.e. ‘SDMC’ represented by one of its members while petitioners 2 and 3 are parent-members of the SDMC. The SDMC is a statutory body constituted under section 21 of Right of Children to Free and Compulsory Education Act, 2009 i.e. RTE Act’. The petitioners in the instant case feel aggrieved of the decision dated 13-09-2021 taken by the State Government and consequential decision/order dated 20-09-2021 of the respondent No.2 by which ‘the school’ has been converted to an English Medium School – Mahatma Gandhi Government School (English Medium).

Observations

(i) Whether Article 21A of the Constitution of India which guarantees a right to education, also guarantees right to receive education in mother tongue or home language?

The Court observed that from perusal of Article 21A of the Constitution of India reveals that it enjoins upon the State to provide free and compulsory education to all children between the age of 6 to 14 years, but then, such right is not an absolute right, as its expanse has been hedged by the expression “in such manner as the State may, by law determine”. Since, Article 21A of the Constitution is tethered with the words “in such manner, as the State, may, by law determine”, according to this Court the State may by law provide the medium and manner to provide such free education, which in a given case can be Hindi, English or even regional dialect – the mother tongue of the child. No child or parent can claim it as a matter of right, which he/his ward should be instructed in a particular language or the mother tongue only, on the basis of what has been guaranteed under Article 21A of the Constitution.

(ii) Whether right to get education in mother tongue or Hindi is a fundamental right?

 The Court observed that fundamental right guaranteed under Article 19(1)(a) is only subject to reasonable restriction by law to be enacted, by the State, in the opinion of this Court, the instant decision taken or the State’s policy decision, cannot whittle down the fundamental right of a child to be taught in a particular medium, which is assured rather protected by Article 19(1)(a) of the Constitution of India.

(iii) Whether the State’s policy decision of converting the school in question to Mahatma Gandhi English Medium School is in conflict with the provisions of section 20, 21, 22 and 29(2)(f) of the Act of 2009?

The State of Rajasthan promulgated Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 wherein section 21 and 22 of the Act of 2009 and Rule 4 & 5 of the Rules of 2011, lays down that School Management Committee is required to prepare a school development plan which shall contain details of class-wise enrollments each year, requirement of number of additional teachers, requirement of additional infrastructure etc. Thus, by reading the provisions of the Act of 2009 and Rules of 2011, the Court is unable to conclude that prescription of medium of instruction is a decision to be taken by the School Management Committee, as a part of school development plan. Preparing a school development plan cannot be misconstrued to mean the prescription of syllabus and medium of instructions. It has to be done by the experts in the field of education/child education.

(iv) Whether the consent of School Development Management Committee (SDMC) is necessary before converting a Hindi medium school to an English medium school?

The Court observed that the functions to be discharged by the School Development Management Committee under clause (a) and (b) of section 21 (2) of the Act of 2009 do not include the decision to be taken with respect to language or medium in which the students of the school shall be taught. The medium of instruction is to be determined by the Appropriate Authority or Rajasthan School Education Council.

The Court observed that Article 19(1) (a) of the Constitution of India is the fountain head, being repository of the right to freedom of speech and expression from where flows such right. Article 19(1)(a) has wide ambit and it includes within its fold, right to have education in a particular medium. The right of having elementary education in mother tongue is also a statutory right conferred by section 29 (2)(f) of the Act of 2009, according to which medium of instruction, as far as practicable, is required to be in child’s mother tongue.

The power to frame laws in the subject of education falls in the Entry No.25 of concurrent list of the VII Schedule. And since the Act of 2009 occupies the field which unequivocally prescribes that medium of instructions in elementary education as far as practicable, be in mother tongue/home language of the child, any law made or framed by the State but for the assent of the President would be repugnant by virtue of Article 254 of the Constitution.

The Court opined, English, as a medium of instruction cannot be thrusted upon a child even by a legislation enacted by the State Government, much less by a policy decision.

Be that as it may. Since the petitioner No.1 – SDMC of which petitioner No.2 & 3 are members, has itself decided to have a school of English medium, impugned decision of the State at the instance of the present petitioners cannot be quashed, more particularly, because the decision of the State or its policy as such are not under challenge.

The Court observed that the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19. In absence of any valid legislation brought by the State of Rajasthan, this Court is of the view that such right cannot be abrogated or taken away. The impugned decision dated 20.09.2021 seeking to convert the school in question to a Hindi medium school with immediate effect (session 2021-22) is fortiori, violative of Article 19(1)(a) and 14 of the Constitution of India.

Indisputably, the School Development Management Committee is a statutory body, constituted under the provisions of section 21 of the Act of 2009 and Rule 3 of the Rules of 2011. Section 21(2) and 22 of the Act of 2009 enjoins upon the committee to monitor the working of the school and prepare/recommend school development plan. In the opinion of this Court, the State’s administrative decision and action of forcing English as a mode or medium of instruction is violative of section 21 and 22 of the Act of 2009, particularly, in the face of resolutions adopted by the SDMC.

The Court keeping in mind the facts, policy decision and laws/rules directed that “in case, for the ensuing session i.e., 2022-23, the State wishes or proposes to convert the school in question to Mahatma Gandhi English Medium School, it shall convene a meeting of the School Development Management Committee constituted under Rule 3 of the Rules of 2011 in presence of the Sub Divisional Magistrate/Tehsildar and a nominee of District Education Officer concerned. Notice of the meeting with the proposed agenda will be circulated well in advance. If the School Development Management Committee by majority of the members present, resolves that the school in question be converted to an English medium school, then only, the State’s decision to convert the school in question to a Mahatma Gandhi English Medium School shall be given effect to. Else, the school will not be converted to an English medium school.”[School Management Development Committee v. State of Rajasthan, 2022 SCC OnLine Raj 38, decided on 04-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Moti Singh

For respondent: Mr. Pankaj Sharma, Mr. Rishi Soni and Mr. Deepak Chandak

Case BriefsHigh Courts

Madras High Court: Expressing that right to life and personal liberty enshrined in Article 21 of the Constitution of India includes the right to relax, G.R. Swaminathan, J., held that the said right can be exercised in a variety of forms.

Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.

 Few Words from the Madras High Court:

After a tiring day trekking in the forest, Lord Rama chose a resting place. He dropped his bow and arrows on the ground. When he woke up the next morning, he found that one of his arrows had fatally pierced a frog. The frog was about to breathe its last. The anguished Rama asked the frog as to why it did not raise an alarm. The innocent frog replied, “when others hurt me, I call your name “Rama Rama”-but when you are the source of trouble-who else can I call?.

When individual liberty is threatened by legislative or executive action, one turns to judiciary for relief and remedy, in the Supreme Court decision of State of Madras v. V.G. Row, AIR 1952 SC 196, Justice M. Patanjali Sastri, CJ remarked that the Supreme Court had been assigned the role of a sentinel on the qui vive as regards the fundamental rights.

Bench stated that the above-stated applies with equal force to every court and not just the constitutional courts.

In the present matter, the petitioner was running a Spa. Originally, there was no law regulating the said business and no license was required from any governmental authority, since vide Gazette Notification No. 252 obtaining of license had been made mandatory, the petitioner applied for such license.

Since no action was taken on the petitioner’s request, he filed the present petition for directing the police authority to issue “no objection certificate”.

The Bench noted that a number of orders in the past were passed wherein the authorities concerned were directed to issue “no objection certificate” if the applicant satisfied all the requirements. Hence, this Court disposed of the petition on 21-12-2021.

Though the Government counsel mentioned that another Judge of this Court issued the following directions in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015:

“1)The respondents are directed to issue appropriate orders to all the Spa and Massage centers, Therapy centers etc., across the State of Tamil Nadu to install CCTV cameras which must be functional in all circumstances.

2)Appropriate directions are to be issued to ensure that these Spa, Massage centers, Therapy centers etc., are conducting their business activities in a transparent manner and avoid secluded or closed rooms paving way for illegal activities.

3)In the event of any reasonable suspicion, information or complaint, the Police authorities are directed to initiate all appropriate actions in the manner known to law.”

Bench stated that the decision in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015 appeared to run counter to the law laid down by the 9-Judge Bench Judgment of the Supreme Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

In Court’s opinion,

The installation of CCTV equipment inside premises such as a spa would unquestionably infract upon a person’s bodily autonomy. These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter.

Further elaborating, the Court stated that, the notification issued by the Government contemplated installation of CCTV cameras only at the entry and exit points. It consciously caveats that this would be without prejudice to the individual’s privacy.

Thus, the executive while enacting subordinate legislation has been conscious of the privacy concerns of the citizens.

No right including a fundamental right can be absolute.

The Bench added that a decision to install a CCTV camera which has a bearing on a person’s privacy requires the most careful of considerations—it requires the government to apply its mind prudently and determine what manner of regulations ought to be put in place for its proper use.

Right to Relax

The K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1  verdict posits that there are three essential features of privacy – repose, sanctuary and intimate decisions.

“Repose” refers to freedom from unwarranted attention, “sanctuary” refers to the freedom of keeping things to oneself and “intimate decisions” refers to the freedom of autonomy to make personal life choices.

The right of an individual to avail means of relaxation (in this case, via spa) falls within the ambit of the right of repose and sanctuary. Therefore, any intrusion into the right to relax shall necessarily have to satisfy the test of legality, legitimate aim and proportionality.

 Morality

High Court added that the Supreme Court decision of Govind v. State of M.P., (1975) 2 SCC 148, pondered over the question of whether concerns of breach of morality can be made a ground for intruding into one’s private space.

When the Govind decision was rendered, privacy was not recognised as a fundamental right.

Post the Supreme Court decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, privacy right can be curtailed only on grounds set out therein. Morality cannot be invoked as a mere incantation to justify such curtailment. This was also the essence of the landmark “Section 377” verdict of the Supreme Court in which it was held that in matters of one’s private affairs, constitutional morality shall trump public morality, Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Lastly, the Bench held that when the notification issued by appropriate authority is holding the field, it may not be open to the Court to supplement the same. In the said circumstances, the first respondent is directed to consider the petitioner’s representation and dispose of the same and if the first respondent issues ‘No Objection Certificate’ and the competent authority grants license in favour of the petitioner, the respondents will not interfere with the petitioner’s business so long as it is running in the manner known to law.

Therefore, the petition was disposed of in view of the above discussion. [Payel Biswas v. Commr. Of Police, 2022 SCC OnLine Mad 76, decided on 4-1-2022]


Advocates before the Court:

For Petitioner: Mr N. Edwin Jeyakumar, for Mr S.Leonard Vasanth.

For Respondents: Mr M. Sakthi Kumar, Government Advocate.

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

 

READ COMPLETE ARTICLE HERE

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

**The article has been published with due permission of Eastern Book Company. Cite as (2020) 4 SCC J-14

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]