Gauhati High Court

Appointments & TransfersNews

DELHI HIGH COURT

The President, after consultation with the Chief Justice of India, transfers Shri Justice Satish Chandra Sharma, Chief Justice, Telangana High Court, as the Chief Justice of the Delhi High Court and to direct him to assume charge of the office of the Chief Justice of the Delhi High Court.

GAUHATI HIGH COURT

The President appoints Shri Justice Rashmin Manharbhai Chhaya, Judge of the Gujarat High Court, to be the Chief Justice of Gauhati High Court with effect from the date he assumes charge of his office.

 

RAJASTHAN HIGH COURT

The President appoints Shri Justice Shinde Sambhaji Shiwaji, Judge of the Bombay High Court, to be the Chief Justice of Rajasthan High Court with effect from the date he assumes,charge of his office.

 

UTTRAKHAND HIGH COURT

The President appoints Shri Justice Vipin Sanghi, Judge of the Delhi High Court, to be the Chief Justice of Uttarakhand High Court with effect from the date he assumes charge of his office.

 

HIMACHAL PRADESH HIGH COURT

The President appoints Shri Justice Amjad Ahtesham Sayed, Judge of the Bombay High Court, to be the Chief Justice of Himachal Pradesh High Court with effect from the date he assumes charge of his office.

 

TELANGANA HIGH COURT

The President appoints Shri Justice Ujjal Bhuyan, Judge of the Telangana High Court, to be the Chief Justice of Telangana High Court with effect from the date he assumes charge of his office.

Ministry Of Law & Justice

 

Appointments & TransfersNews

President appoints Justice Sudhanshu Dhulia, Chief Justice of the Gauhati High Court and Justice Jamshed Burjor Pardiwala, Judge of the Gujarat High Court to be Judges of the Supreme Court of India.

Ministry of Law and Justice

[Notification dt. 7-5-2022]

Appointments & TransfersNews

Supreme Court Collegium has recommended the elevation of the following Chief Justice / Judge of the High Courts, as Judges in the Supreme Court:

1. Mr Justice Sudhanshu Dhulia, Chief Justice, Gauhati High Court, (PHC: Uttarakhand); and

2. Mr Justice J.B. Pardiwala, Judge, Gujarat High Court

Supreme Court Collegium

[Statement dt. 5-5-2022]

Op EdsOP. ED.

The headlines reporting of a judgment rendered by the Gauhati High Court concerning a matrimonial wedlock dissolution can be cited as a prime example of click bait journalism. The learned authors of the various columns are making a rather fervent effort to superimpose upon general public their interpretation of the judgment rather than what the Court has apparently held. The headlines of some leading newspapers read; Gauhati High Court Grants Divorce to Man After Woman Refuses to Wear “Sindoor”[1], “Shakha”[2],[3] Gauhati High Court Grants Divorce for Woman’s Refusal to Wear “Sindoor”, “Shakha”.[4] The instant reaction to such tit-bits infuriates a progressive and liberal mind, while at the same time, can soothe the orthodox and make them feel entitled to such a judicial dicta.

            The author’s attempt herein is merely to disillusion the mist of myriad traversing over the subject, out of an ingeniously erroneous interpretation, which may evoke a legally instructed mind rather disdainfully.

            A fresh law school entrant would not find it difficult to read the 12 page judgment of the Gauhati High Court[5] and any indiscrete eye would rather assimilate its sentiment in true valour, yet an extreme distortion of the judgment may be paving new opportunities for tyrants. The moot question before the High Court was:

  1. Whether the respondent wife subjected the appellant husband to cruelty and deserted him?
  2. Whether the appellant husband is entitled to a decree of divorce?

The brief facts of the case, leading to the appeal before the High Court has been encapsulated  at the very opening of the judgment in the following manner:

“3. The case of the appellant husband …  is that he is a contractual labourer … He lives with his mother, sisters and brother in Digboi. His marriage with the respondent wife was solemnised on 17-2-2012. After marriage, the appellant and the respondent started their conjugal life in the matrimonial house of the appellant. After about a month into their marriage, the respondent wife demanded to reside separately with the appellant husband … However, the appellant being a contractual labourer was not able to sustain separate accommodation … Around the month of June 2013, the respondent wife declared that she was not willing to continue her matrimonial life with the appellant. As a consequence, the respondent wife insisted on going back to her parental home … contrary to her assurance, instead of returning back to the matrimonial house, she filed a case under Section 498-A[6] IPC before Digboi Police … The appellant husband further contended that the respondent wife compelled the appellant to execute a written agreement to the effect that the couple will stay in a separate rental house together away from the joint family of the husband and further that the appellant husband’s family members will not visit them or maintain any relation with them.

4. The respondent wife contested the case … she stated that she was subjected to cruelty to meet illegal demands of dowry in the form of cash and kind….

                           *                                     *                                          *

  1. During her cross, she maintained the evidence adduced by her in her evidence-in-chief. She stated that she had filed three cases against the appellant. She further stated that she does not want to stay with the appellant or compromise with the appellant. She also admitted to the existence of the agreement entered by and between the appellant and the respondent pursuant to filing of the FIR although she denied that the agreement stipulated that the appellant will live separately with her in a rented house and that no one from his family members can come and meet them. It is also evident from her cross-examination that she had categorically stated that either the appellant will come to Dibrugarh to live with her or fulfil her demands i.e. monetary demands or only then she will divorce him….

                           *                                  *                            *

  1. The Family Court below has accepted the evidence of both the parties that there were indeed criminal cases filed by the respondent wife under Section 498-A IPC besides two other cases. In the case lodged under Section 498-A IPC, the SDJM (Margherita) acquitted the appellant husband, his stepmother and his sisters. However, the criminal cases filed under Sections 471/420[7] IPC and under Section 125[8] CrPC are presently pending disposal….[9]

            In an uncanny manner, the entire thrust of media reports was on certain observations (obiter dicta) made by the Court at para 15 of its judgment; projecting it in a manner, as done and by reading it out of context and de hors the facts; without even glancing over the preceding paragraphs, resulting in distortion of the court’s verdict. It is elementary jurisprudence that one cannot pick or choose a line from the judgment to buttress their claim; a judgment must be read as a whole. The observations made by the Court were in the backdrop of facts obtaining in the case which have been transcribed in the text of the judgment. The judgment reproduces the testimony of the lady/wife/respondent at para 13 wherein she categorically states:

“That I am not wearing/putting sindoor right now because I do not consider him as my husband.”

It is only after considering such categorical statement of the lady/wife/respondent that the Court observes/remarks at para 16 that:

  1. … Under the custom of Hindu marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear “shakha and sindoor” will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant-husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.[10]

The Court finds and observes that the conduct of wife; refusal to adhere with such custom, voluntarily and in an unambiguous manner; arising out of loss of relationship, as above, reflects her will. She is not being lambasted for denying to follow a custom. It is merely a reflection of her will and desire i.e. to come out of wedlock. The Court finds that, in the facts and circumstances of the case at hand, the wife’s refusal to wear the sindoor amounts to her not wanting to continue with the marriage which stands corroborated by her statement during the cross-examination.

            The judgment is in no way suggestive or accords sanction to a man, that he may walk up to a court of law and ask for divorce if his wife does not wear the customary sindoor. The decision is liable to be understood and confined to the facts of the case.

            It is important to note that ratio decidendi (legal grounds/reasons of rendering a judgment) of the case is NOT “divorce to be decreed upon wife’s refusal to wear sindoor and the shakha” as projected in the media reports. Rather, the fact of non-observance of custom i.e. refusal to wear sindoor and the shakha, is only indicative of wife’s will in context of the surrounding facts of the case. She considers the particular custom sacred and the court also takes note of the fact that she is unwilling to follow the custom as she wants to exit the wedlock. The sanctity and enforceability of custom is a question of fact in each case. In the set of facts present before the court in the instant case, the court finds that the wife’s unwillingness to remain married is demonstrated by the omission to follow the particular custom and to force the parties to remain in wedlock “may” amount to harassment to the husband/appellant and his family.

            The Court clearly observes that this overt act demonstrates the wife’s unwillingness to be part of the matrimonial home, in the facts of the case. The Court does not return a finding that the act of omission; refusal to wear sindoor and shakha, amounts to legal cruelty entitling the husband for divorce. All that the judgment holds is that this categorical statement in cross-examination, of non-observance of custom; demonstrating the wife’s will to detach herself from the wedlock, was not looked into by the Family Court while refusing the divorce petition of the appellant-husband.

            Now consider a scenario where the wife wants to apply the sindoor, shakha, mangalsutra, etc., as per the Hindu customs, but the husband forbears her from doing so or where husband refuses to wear the customary wedding ring. Will the wife be entitled for divorce on the ground of cruelty on part of the husband in such circumstances; citing the instant judgment as a precedent? The answer would be a resounding no. To follow a custom or not is NOT  the determinative test for constituting legal cruelty under matrimonial laws. For a court of law to reach to a conclusion that an act complained off amounts to legal cruelty requires satisfaction of separate parameters.

            It is only when custom has been identified and acknowledged as a legally binding principle, based on various factors, that its non-adherence can result in a legal wrong. A distinction needs to be understood between social customs and legal customs, both have acknowledgement in law, but for separate purposes. While the former’s non-observance may result in social sanctions, the disobedience of the latter attracts legal consequences. Irrespective, since the same was not a moot question before the court, the judgment simply refers to the overt act of the party to the dispute, in an attempt to decipher the empirical desire of the couple. Non-adherence with such custom had no bearing, per se, on the matrimonial wedlock, but was reflective and indicative of will of the parties. Not following a custom or not allowing someone else to follow the same, ipso facto, does not translate into legal cruelty under matrimonial laws.

            Legal cruelty in a matrimonial home is the creation of such circumstances, by either or both party/s, which makes it absolutely impossible for the other party to cohabit. Thus, constantly nagging the other spouse to follow or not follow a particular ritual or custom can amount to mental and legal cruelty, depending on the factual matrix of each case.[11] Even in such cases, it is the act of consistent, grave and weighty interference that may amount to legal cruelty and NOT the observance or non-observance of a particular custom. To hold that an act amounts to legal cruelty, each case is considered individually as there is no conduct which can be said always to amount to legal cruelty.[12]

            What the Court has, in fact and in law, held as legal cruelty in this present case is the act of lodging unsubstantiated FIR under Section 498-A IPC; clean acquittal of the appellant husband. The Court has placed reliance on the decision of the Supreme Court in Rani Narasimha Sastry v. Rani Suneela Rani[13], wherein it was held that filing of frivolous criminal cases like case under Section 498-A IPC, etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by wife.

            Another aspect considered by the Court in granting divorce to the appellant husband was that the Family Court completely ignored that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007[14]. Such evidence is sufficient to construe an act of cruelty as the non-compliance/non-adherence to the provisions of the 2007 Act has criminal consequences leading to punishment or imprisonment as well as fine.

            The decision of the High Court was challenged in a review petition, apparently based on such media reports, on inter alia the ground that, “not wearing or refusal to wear ‘sindoor’ by wife cannot constitute cruelty so as to justify dissolving the marriage.”[15] The review petition was dismissed and the Court held that the act of the wife and her statement on oath, about the sindoor, only demonstrates her unwillingness to remain in the wedlock and it would be considered as an incident of cruelty, however might not be sufficient in itself, and in isolation as a ground of cruelty for grant of divorce. The Court also points out and observes that, the review application has been argued as if this was the only ground considered by the Court for dissolving the marriage, however as explained hereinabove it is not so. The Court granted divorce in the instant case on settled legal principles as opposed to some dogmatic cultural ideals, which have been attempted to be projected. Ironically, there was no reporting about the dismissal of the review petition nor did any of the legal reporters found it right to acknowledge their misreporting in the first instance.

            It is disheartening to see such news reports in an era where the press is considered as the fourth pillar of democracy. The news reports suggest that courts still consider such customs and practices as unshakable norms and any deviation therefrom is frowned upon which is diametrically opposed to the sentiments expressed by the judiciary. The Bombay High Court, while deciding a matrimonial appeal, highlights and observes that, in 21st century, a man would not be entitled to seek a divorce solely on the grounds that his wife does not cover head with the pallu or sometimes removes mangalsutra and sindoor.[16] In contemporary times, courts are proactive to eliminate any obsolete and redundant practices which reek of high-handedness and try to achieve parity between the sexes.

            As a word of caution, it is felt necessary that before a decision is reported, much restraint be exercised to avoid mischief; judgments having force of law. It is not a matter to be lightly inferred. The present case had so many facts which have been overlooked while creating headlines resulting in misleading and incomplete communication.

            In a growing democracy like ours, the press should be mindful of the way they present a news item, specially a judgment of the highest court of law in a State. Projecting the courts as orthodox and opinionated only results in people loosing faith in the judicial institution. It is hoped that the news reporters will be mindful of their cardinal duty of reporting unbiased facts while engineering sensational headlines in the future.

† Junior Research Fellow, Faculty of Law, University of Allahabad, former Law Clerk-cum-Research Assistant,  Supreme Court of India. Author can be reached at bhavna1988@gmail.com.

[1] Vermillion.

[2] A conch shell bangle.

[3] Available at <https://economictimes.indiatimes.com/news/politics–and–nation/gauhati–high–court–grants–divorce–to–man–after–woman–refuses–to–wear–sindoor–shaka/articleshow/76705018.cms>.

[4] Available at  <https://thewire.in/law/gauhati–hc–grants–divorce–for–womans–refusal–to–wear–sindoor–shaka>.

[5] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[6] Penal Code, 1860, S. 498-A.

[7] Penal Code, 1860, Ss. 471 and 420.

[8] Criminal Procedure Code, 1973, S. 125.

[9] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[10] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.

[11] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020).

[12] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020) at 57.

[13] 2019 SCC Online SC 1595.

[14]  Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

[15] Renu Das v. Bhaskar Das, 2020 SCC OnLine Gau 4971.

[16] Anurag v. Sarita, 2017 SCC OnLine Bom 10126.

Gauhati High Court
Appointments & TransfersNews

President appoints the following as Additional Judges of the Gauhati High Court:

  • Kakheto Sema [2 Years]
  • Devashis Baruah [2 Years]
  • Malasri Nandi [2 Years]
  • Marli Vankung [2 Years]
  • Arun Dev Choudhury [2 Years from 5-11-2021 or after when he assumes charge of his office]

Ministry of Law and Justice

[Notification dt. 12-10-2021]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., held that if the amount of compensation has already been agreed in a compensation claim, no appeal would lie against the same.

The present appeal was directed against the judgment and order passed by the Railway Claims Tribunal, whereby the Railway authority was directed to pay Rs.57,375 as compensation.

According to the applicant, a clubbed consignment (300 packets of dried peas and 400 packets of Arhar Dal) was booked from DKZ to NGC. At destination, as per Delivery Certificate, 45 packets of Arhar Dal were found short. As per the applicant at Rs.25.50 per kg., the compensation was amounted to Rs.57,375 for which the applicant had filed the claim petition and stated that the respondent railway was fully liable.

The respondent-Railway submitted that the question of negligence and misconduct did not arise, as the consignment was loaded by the sender at the forwarding station and unloaded by the consignee at the destination station. It was also argued by the respondent-Railway that the nature of relief as sought for in the application was not admitted since there was no contract between the parties in this case to pay cost and interest and the applicant was not entitled for the same. The Railway Claims Tribunal decided all the issues in favour of the applicant and passed the impugned judgment.

According to Section 93 of the Railway Act, the Railway Authority is responsible for the loss, destruction, damage of the articles loaded for transportation.

The applicant made specific claim about the damage at the time of delivery of consignment with the further claim that wagon seals and card labels were absent, with damage to the body of the wagon with leakage etc. Further, the unloading report revealed that S/Side W/D without original seal and card label, protection seal were badly broken thereby the applicant disputed that the respondent had not taken due care of consignment after such entrustment.

Noticing that at the stage of argument both the parties agreed for the compensation at the rate of Rs.25.50 per kg. [2250 Kg. X Rs.25.50 = Rs.57,375/-] and the Tribunal order was passed on the basis of such agreement, the Bench stated that such agreement tantamount to consent decree, hence, appeal was not maintainable as the amount of compensation was already decided on being agreed.

As per Section 23(2) of the Railway Claims Tribunal Act, no appeal will lie against consent decree, hence the appeal was held to be not maintainable. Therefore, the appeal was dismissed. [Union of India v. M/S Ramesh And Co,  2021 SCC OnLine Gau 1839, decided on 27-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Advocate for the appellant: Mr. G. Goswami, Standing Counsel, Railway.

Advocate for the respondent: Ms. M. Sharma.

Gauhati High Court
Appointments & TransfersNews

Collegium approves proposal for appointment of 3 Additional Judges as Permanent Judges in Gauhati HC

Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges as Permanent Judges in the Gauhati High Court:

1. Shri Justice Soumitra Saikia,

2. Shri Justice Parthivjyoti Saikia, and

3. Shri Justice S. Hukato Swu.

Supreme Court

[Collegium Statement dt. 9-09-021]

Gauhati High Court
Appointments & TransfersNews

Elevation of 3 Advocates and 2 Judicial Officers as Judges of Gauhati HC

Supreme Court Collegium has approved the proposal for elevation of the following persons as Judges in the Gauhati High Court:

ADVOCATES:

1. Shri Kakheto Sema,

2. Shri Devashis Baruah, and

3. Shri Arun Dev Choudhury.

JUDICIAL OFFICERS:

4. Smt. Malasri Nandi, and

5. Smt. Marli Vanku

Collegium Resolution

[Statement dt. 1-09-2021]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Ajit Borthakur, J., granted bail to an IIT student accused of raping his junior. The Bench stated,

“Both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only, the continuation of detention of the accused was not necessary.”

The instant petition was filed by the accused, namely Utsav Kadam praying for grant of bail in connection with a rape case pending before the Addl. Sessions Judge. The accused was a youngster aged about 21 years and was a student of B. Tech Pre-final year of Indian Institute of Technology (‘I.I.T.’), Guwahati in chemical engineering.

The case against the accused was that on 28-03-2021 at around 9 p.m., the accused lured the informant/victim female student of the same educational institution to Aksara School premises, in the pretext of discussing about her responsibility as the Joint Secretary of the Finance and Economic Club of the students of the I.I.T., Guwahati and after making her unconscious, by forcibly administering alcohol raped her. The victim regained her consciousness at around 5 a.m., the next morning at Guwahati Medical College and Hospital, where she underwent treatment and forensic examination etc.

The petitioner contended that he had been in judicial custody for about 120 days in connection with the case, which was entirely based on assumption of commission of the offence of rape without any credible evidence. Therefore, it was urged by the petitioner that as the investigation had already been completed and as there was no chance of him jumping the course of justice in any manner, being a student of I.I.T., Guwahati, further continuation of his detention for the purpose of trial may not be warranted and that would amount to causing further damage to his brilliant academic pursuit.

While strongly opposing the bail application, Mr D. Das, counsel for the State contended that allegations made in detail by the victim girl, who was a student of 2nd year B. Tech Chemical Engineering of I.I.T., Guwahati, prima facie established a clear case in favour of the victim girl. Therefore, if liberty of bail was granted to the accused, the trial of the case was certain to be hampered, which may occasion gross injustice to the victim.

On hearing both sides and after considering relevant documents, i.e. FIR, medical report,  statements under Sections 161 and 164 Criminal Procedure Code, 1973, the contents of the charge-sheet and the Fact-Finding Committee Report etc., the Bench opined that there was a  prima facie case as alleged against the accused petitioner. However, as the investigation in the case was completed and both the informant/victim girl and the accused were the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who were young in the age group of 19 to 21 years only the Bench was of the view that continuation of detention of the accused was not necessary.

Also, the Court stated that there was no possibility of the accused tampering with their evidence or influencing them directly or indirectly, if released on bail. Hence, the accused was directed to be released on bail of Rs. 30,000 with two sureties of the like amount.[Utsav Kadam v. State of Assam, Bail Appln. No. 1623 of 2021, decided on 13-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Advocate for the Petitioner: Mr. K N Choudhury

Advocate for the Respondent: PP, Assam

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

The instant petition was heard along with a suo motu case registered with regard to the barbaric incident which took place in Assam’s Hojai district. According to reports[i], family members of the deceased patient brutally thrashed a young doctor following the patient’s demise at a Covid care centre.

As far as the abovementioned incident was concerned, the police had completed its investigation, charge-sheet had been filed and as many as twenty-four persons had already been arrested so far. Evidently, in its earlier order, the Court had directed the authorities concerned to ensure installation of CCTV cameras in hospitals, where no CCTV camera has been installed.  And provide compensation to the Medicare Service Persons, who may be the victims of violence during discharge of their duties.

The Court, on being informed that almost all the Government Medical Colleges and the District Government Hospitals except some government and Model Hospitals were having CCTV cameras, directed that mere installation of CCTV cameras in the hospitals concerned was not enough and the CCTV cameras have to be connected to the nearest Police Station for further monitoring.[Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529, decided on 30-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Counsel for the Petitioner: S Islam

Counsel for the Respondent: D. Saikia

For the Gauhati High Court: S. Kalita, Standing counsel

[i] https://www.indiatoday.in/india/story/arrested-attack-junior-doctor-assam-hojai-ima-1809795-2021-06-02

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Nani Tagia, J., stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Covid-19 Vaccination:  Whether Mandatory or Voluntary?

The petitioner contended that as per the RTI Information furnished by the Ministry of Health & Family Welfare, which is available on the Ministry’s website, Covid-19 vaccination is not mandatory but voluntary. The petitioner also referred to an answer given on 19-03-2021 in the Lok Sabha to an Unstarred Question No. 3976 by the Minister of State in the Ministry of Health & Family Welfare stating that there is no provision of compensation for recipients of Covid-19 Vaccination against any kind of side effects or medical complication that may arise due to inoculation. The Covid-19 Vaccination is entirely voluntary for the beneficiaries. The petitioner contended that the impugned order had interfered with the fundamental rights granted under Article 19 (1) (d) of the Constitution.

Analysis by the Court

Vide Clause 11 of the Order dated 30-06-2021, issued by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vaccinated and unvaccinated persons for Covid-19 virus had been classified into two groups for the purpose of issuing temporary permits for developmental works in both public and private sector. Clause 11 of the Order reads as under:

“11. Tourist ILPs shall remain suspended during the period of this order, however for developmental works in both public and private sector; temporary permits may be issued provided such persons are vaccinated for COVID 19.

While persons who were vaccinated for Covid-19 had been allowed to be issued with a permit to visit Arunachal Pradesh, persons who were not vaccinated with Covid-19 vaccine had not been allowed to be issued with a temporary permit to visit Arunachal Pradesh for developmental works in both public and private sector. The Bench stated that the right granted under Article 19 (1) (d) of the Constitution to move freely throughout the territory of India is not absolute and the State may impose reasonable restrictions either in the interest of the general public or for the protection of the interest of the Scheduled Tribe. However, such restrictions must be a reasonable one conforming to the requirement of Article 14 of the Constitution.

Whether Classification of Vaccinated and Non-vaccinated was based on intelligible differentia

Noticing that the classification sought to be made between the vaccinated and unvaccinated persons was to contain Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the Bench stated that, “there is no evidence available either in the record or in the public domain that Covid-19 vaccinated persons cannot be infected with Covid-19 virus, or he/she cannot be a carrier of a Covid-19 virus and consequently, a spreader of Covid-19 virus.”

The Bench said that in so far as the spread of Covid- 19 Virus to others is concerned, the Covid-19 vaccinated and unvaccinated person or persons are the same. Both can equally be a potential spreader if they are infected with the Covid-19 Virus in them. Hence, the classification must always rest upon some real and substantial distinction bearing reasonable and just needs in respect of which it is made.

Hence, the Bench stated, if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.

Decision

Thus, the Bench held that the impugned notification violated Articles 14, 19 (1) (d) & 21 of the Constitution, in so far it made classification of vaccinated and non-vaccinated persons for the purpose of issuance of temporary permits for developmental works in the State of Arunachal Pradesh. Accordingly, Clause 11 of the impugned order was stayed to the extent it discriminated between Covid-19 vaccinated persons and Covid-19 unvaccinated persons.[Madan Mili v. Union of India, 2021 SCC OnLine Gau 1503, decided on 19-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

Advocates for the Petitioner: Debasmita Ghosh, Ebo Mili, Chanya Bangsia and S. Dey

Advocates for the Respondent: Marto Kato, ASG, R. H. Nabam, Addl. Adv. General, A.P

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ., and  Manash Ranjan Pathak, J., addressed a suo motu PIL concerning the plight of a rape victim, where the victim was a child between 12-15 years of age.

The incident alleged to had happened in the State of Arunachal Pradesh where a missing report was filed by one Mr Aka Kalung alleging that his domestic help who was a child brought from Nepal, had been missing. The girl was later recovered the next day but as she was reluctant to go to the house of the informant her custody was given to the Child Care Institute, where the victim made allegations of rape and sexual abuse against the informant, stating that he had been abusing her for the last many years.

Meanwhile, on the plea of the father of the victim the Sessions Judge, Tezu, Lohit District, Arunachal Pradesh directed the CCI to hand over the custody of the child to the “local guardian”. This local guardian was none else but the sister-in-law of the accused. The impugned order was challenged in revision before the High Court and the custody was not handed over to the local guardian. Therefore, another application was moved by the father of the child in which further direction was given to hand over the child to the local guardian.

Invoking the doctrine of Parens Patriae, the High Court held that since the local guardian to whom the custody was being handed over was a close related of none else but the accused, it would not serve the interest of justice and definitely it would not be in the best interest of the victim child.

Hence, the order of the Sessions Judge was stayed with the further directions to the lower Courts not to take up any other application where the subject matter relates to the custody of the child. The custody of the Child was granted to CCI. Further, directions were issued to the Deputy Commissioner to conduct an enquiry by personally visiting the CCI and furnish the details with regard to the facilities available in the CCI, including the fact that such an institute was registered or not.

The Superintendent of Police of the concerned district, where the CCI was located was directed to ensure that the child was given every protection in the institute and she should not be allowed to be visited either by the accused or his relative or even by her father till the next date of listing. However, the Bench made an exception of the mother of the child. Who was allowed to visit the child and stay with her.

Observing the sensitivity of the matter, the Bench issued strict directions to the State to depute a team of medical officers, including a lady doctor to conduct medical examination on the victim, only for the determination of her age. The Bench emphasised strictly that the examination shall be limited to a bone ossification test and no other test be done as the victim had already been medically examined.[State of Arunachal Pradesh, In Re., PIL (Suo Moto) No. 5 of 2021, decided on 30-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by: 

For the Petitioner: U K Nair, Sr. Adv

For the Respondent: A Chandran, Addl. Sr. Ga, Ap

Gauhati High Court
Case BriefsCOVID 19High Courts

Gauhati High Court: In a case related to the availability of oxygen and vaccination in the State of Nagaland the Division Bench comprising of Songkhupchung Serto and S. Hukato Swu, JJ., directed the state government to ramp up vaccination status for the health workers, Shopkeepers and vegetable vendors, journalists and judicial fraternity. The Bench remarked,

“They (health workers) are the people who are delivering the health service to the people; in case they are infected they will be the ones who will be spreading the virus to others.”

Considering the submissions made by Union and State counsels the Court was of the view that though vaccination is going on, availability of the vaccine is far short of the number of people that needs to be vaccinated in the State. The Bench stated that if the State has to fight the Covid war effectively and prevent the 3rd wave coming and causing so much suffering as the 2nd wave had done, the only way is ramping up vaccination and complete the same at the earliest. The Bench reminded the government that,

“The 3rd wave might be just standing at the door if vaccination is not done with speed and proper Covid behaviours are not followed.”

Therefore, directions were issued to the State and the Central Government to do all possible at their command to make the required number of doses of vaccination available in time so that vaccination could be carried out with speed and be completed at least within 3 months. Hence, the Health Department and State government were directed to come up with instructions to make the required number of doses of vaccine available within 3 months.

Noticing that nothing substantial had been done by the State with regard to Court’s order regarding vaccination of Shopkeepers and vegetable vendors since they are vulnerable section of the society who are also potential spreader of the virus due to the nature of their profession, the Bench warned the State government to take some pragmatic steps so that priority is given to these groups of people at the earliest. Concerning the health workers, the data submitted before the Court suggested that out of 25,000 plus only 15,000 plus had taken the vaccination and out of that 10,000 plus had taken their 2nd dose. Finding these figures concerning because these they are the people who are delivering the health service to the people, the Bench stated that in case they are infected they will be the ones who will be spreading the virus to others. The Bench further stated,

“We are aware of the fact that nobody can be forced to take vaccine unless they volunteer. However, the authorities should make sure that these health workers, in case they do not volunteer to take the vaccine, produce their testing certificate as and when they report for duties.”

The District Task Force was also directed to ensure that private hospitals also follow the same directions. Appreciating that vaccination camps had been organized at Secretariat and Directorate level regarding other Government servants, the Bench cautioned the Government and authorities concerned that no such camp had been organized the judicial fraternity.

Acknowledging the nature of work with regard to the journalist community, the Bench also directed that a special camp should also be organized for them.  Lastly, the Bench remarked, “since no one knows as to when this war against Covid will end, the Government should come up with some pragmatic plan so that office works are not affected for such a long time.”

[Kohima, In re., PIL (Suo Moto) 1 of 2021, decided on 30-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

Amicus Curiae: Mr. Taka Masa

Counsel for the State: Mr. K. Sema, Addl. Sr. Advocate General

Counsel for the Health Department: Mr. N. Mozhui

Counsel for Union of India: Ms. Akhala, ASGI

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Manish Choudhury, J., granted bail to the woman charged with sedition for using National Flag as a table cloth.

The petitioner, Ms Rajina Parbin Sultana was booked under Sections 120B/124A IPC and Section 2 of the Prevention of Insult to National Honour Act, 1971 and had been in custody since 16-05-2021. The petitioner was accused of using the Indian National Flag as a table cloth on the occasion of the Eid festival when a picture of hers having lunch on that dining table with some guests went viral on social media. Pursuant to the said incident several allegations were made against the petitioner of willfully dishonouring the Indian National Flag.

The petitioner had submitted before the Court that out of the 6 (six) accused persons named in the FIR, 5 (five) of them had already been released on bail. It was argued that even if the accusations made in the FIR were prima facie accepted to be true, the same could not be brought within the purview of the offence under Section 124A, IPC.

On the other hand, the State submitted that the accused-petitioner was the host for the lunch which was held in her house, on 14-05-2021 when the alleged act was committed. It was submitted that there was ample evidence that the accused petitioner had used a table cloth resembling the Indian National Flag while inviting guests to her house on the occasion of Eid festival.

Noticing that the sentence was to the effect that the accused-petitioners were under 30 from a middle-class background and therefore had the clout to influence the investigation”; and considering that the said incident was an unintentional mistake, the Court accepted the defence argument with the suggestion to the petitioner to exercise more care and caution in future. The Bench stated that the question of whether the accused-petitioner, by her act had, committed the offence under Section 2 of the Prevention of Insult to National Honour Act, 1971 in any public place or any other place within public view is to be considered on the basis of the materials collected during the course of the investigation and its admissibility during the course of the trial. Hence,

“It did not prima facie suggest to be an act to have the affect of subverting the Government by bringing that Government into contempt or hatred or creating disaffection against it.”

Considering the period of detention of the accused-petitioner since 16-05-2021 and the progress made in the investigation, the Court held that further custodial detention of the accused-petitioner was not necessary for the purpose of carrying out an investigation of the case and her release on bail at this stage of the investigation was not likely to cause any prejudicial effect in the further investigation, provided she continues to extend her assistance and co-operation in the further investigation of the case.  Accordingly, the petitioner was directed to be released on bail on furnishing a bail bond of Rs 20,000. [Rajina Parbin Sultana v. State of Assam, Bail Appln./1123 of 2021, decided on 08-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

Advocate for the Petitioner: Syed Burhanur Rahman

Advocate for the Respondent: PP, ASSAM

Gauhati High Court
Appointments & TransfersNews

President of India appoints Shri Robin Phukan, to be an Additional Judge of the Gauhati High Court. He will hold the office for a period of two years with effect from the date he assumes charge of his office.

Background

Shri Robin Phukan, M.Sc., LL.M., joined the Judicial Service on 09.03.1993. and has served as Chief Judicial Magistrate, Kamrup; Civil Judge & Asstt. Sessions Judge, Tezpur; Addl. District & Sessions Judge, Silchar; Registrar (PM&P); Registrar (Administration); Registrar (Vigilance) and Registrar General Gauhati High Court; District & Sessions Judge, Golaghat; Special judge, CBI & NIA. He was working as District & Sessions Judge, Jorhat from 06.01.2020.

Gauhati High Court
Case BriefsCOVID 19High Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ. and Manash Ranjan Pathak, J., took up a petition filed in the nature of PIL; concern raised was the present condition of sex workers in Assam who, according to the petitioner in most cases, were on the verge of starvation, considering the strange and difficult times of the present COVID-19 pandemic, which is now in its second wave.

Counsel for the petitioner, Ms D Ghosh submitted before the Court an order passed by the Supreme Court in Budhadev Karmaskar v. State of West Bengal, Criminal Appeal No. 135 of 2010, dated- 29-09-2020 where certain directions were given regarding relief and aid to be given to sex workers during the present COVID-19 pandemic. The petitioner had moved an impleadment application in compliance of this Court’s order on 27-05-2021 for impleading the Union of India, represented by the Secretary, Ministry of Women and Child Development as well as National AIDS Control Organization, represented by Secretary, Department of Health & Family Welfare, Government of India, as respondent.

The court allowed the impleadment application.

Mr R.K.D. Choudhury, Assistant Solicitor General of India was given directions to apprise the Court as to how the National AIDS Control Organization through the Assam State AIDS Control Society will give relief to the sex workers in Assam during the present pandemic, and how will the sex workers be identified. Mr R. Dhar, Senior Government Advocate, Assam was also asked to obtain necessary instructions in the matter.

On the urge of the counsel for the petitioner an interim mandamus was issued directing the Deputy Commissioner, Cachar as well as the Secretary, District Legal Services Authority, Cachar to immediately provide ration to sex workers and their family members in Cachar who were struggling in the current situation.[Debajit Gupta v. State of Assam, 2021 SCC OnLine Gau 1169, decided on 28-05-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of N. Kotiswar Singh and Somitra Saikia, JJ.,  heard the instant petition against the ex-parte order passed by the Foreigners Tribunal by which the petitioner was declared an illegal migrant of post-1971 stream. The Bench remarked,

“By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person…the same should be adjudicated as far as possible on the basis of merit and on hearing the person concerned.”

Though notice was served, according to the petitioner, upon receipt of notice from the Foreigners Tribunal, her son appeared on her behalf without her knowledge. But unfortunately, the petitioner’s son neglected to appear before the Tribunal on various
dates fixed by the Tribunal resulting in passing of the ex-parte order. The contention of the petitioner was that the Tribunal passed the order without hearing the petitioner which had deprived her of her citizenship.

The Bench opined that citizenship is one of the most important rights of a person. By virtue of citizenship, one becomes a member of a sovereign country and becomes entitled to various rights and privileges granted by law in the country and, as such, if any question arises about citizenship of a person, the same should be adjudicated on the basis of merit and on hearing the person concerned. In view of above, the impugned order was set aside and the matter was remanded to the Foreigners Tribunal for reconsideration of the issue as to whether the petitioner is a foreigner. Further, the petitioner was directed to ensure her presence before the aforesaid Foreigners Tribunal.

Additionally, after observing that the petitioner’s citizenship was under cloud as the petitioner had already been declared a foreigner, the petitioner was directed to appear before the Superintendent of Police (Border), within 15 days and furnish a bail bond of Rs.5000 with one local surety of the like amount. The authority concerned was directed to allow the petitioner to have remained on bail.

The Superintendent of Police (Border) was granted liberty to obtain necessary information and documentation along with biometric details as required under the rules from the petitioner for securing her presence. However, the Court imposed restriction on the petitioner from leaving the State without giving details of the place of destination and her place of stay to the Superintendent of Police.[Rahima Khatun v. Union of India, WP(C) No. 8284 of 2019, decided on 08-04-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. P. N. Goswami and Adv. D. Gogoi

For the Respondents: Sr. Adv. P. S. Bhattacharjee, Special Counsel J. Payeng, Adv. B. Das and Standing Counsel P. S. Lahkar

Gauhati High Court
Appointments & TransfersNews

President of India appointed Justice Sudhanshu Dhulia, Judge of the Uttarakhand High Court, as Chief Justice of the Gauhati High Court.

Justice Sudhanshu Dhulia was enrolled as an Advocate on July 07, 1986, and practiced in the Allahabad and Uttarakhand High Courts in Civil, Constitutional, Service, and Labour matters and has specialized in Service and Constitutional matters. He was appointed as Permanent Judge of the Uttarakhand High Court on November 1, 2008.

Ministry of Law and Justice

[Press Release dt. 07-01-2020]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Achintya Malla Bujor Barua J., while reiterating the principle laid down by Supreme Court, with respect to calculation and payment of the retirement benefits, issued necessary directions to the respondent authorities.

Background

The petitioner working as an Assistant Teacher in Lower Muolhoi School in the district Dima Hasao, Assam, retired from service on 31-03-2018. After his retirement, when the matter was processed for payment of his pensionary benefits, the communication dated 05-06-2020 of the Finance and Accounts Officer in the office of the Directorate of Pension, Assam was made addressed to the District Primary Education Officer, Haflong, Assam, by which, it was provided that during his service tenure, the petitioner was paid a salary higher than his actual scale. Accordingly, by the said communication, the District Primary Education Officer, Haflong, Assam was required to do the needful. The said communication has been assailed in the present writ petition on the ground that as per the law laid down by the Supreme Court, recovery from the pensionary benefits cannot be made in respect of any salary that was paid to an employee during his service period for no fault of his own.

Observation

The Court observed, “The law in this respect has been settled by the Supreme Court in Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 and State of Punjab v. Rafiq Masih, (2015) 4 SCC 334, wherein it had been held that in the event an excess salary is paid to an employee during his/her service tenure because of no fault of his/her, such excess payment cannot be recovered from the retirement benefits.”  Further, it was said, “(…) the ends of justice would be met if the authorities in the Pension Department make an assessment as to whether there was any contribution on the part of the petitioner in receiving such excess salary during his service tenure. In the event, if it is found that there was no such contribution from the petitioner leading to such excess payment, the authorities shall not insist upon the recovery in view of the law laid down by the Hon’ble Supreme Court as indicated above.”

Decision

Allowing the present petition, the Court stated the correct payment of the petitioner according to which the pension was to be calculated and not the higher pay which he derived during his service. Moreover, directions were given to conduct the assessment within a period of two months so to effectuate the entire process.[Hrangthalien Tamhrang v. State of Assam, 2020 SCC OnLine Gau 4499, decided on 24-11 2020]

Sakshi Shukla, Editorial Assistant has put this story together

Gauhati High Court
Appointments & TransfersNews

The President in the exercise of the power conferred by clause (l) of Article 217 of the Constitution of India, has appointed Justice Sanjay Kumar Medhi, Justice Nani Tagia, and Justice Manish Choudhury, the Additional Judges of the Gauhati High Court, as Judges of the Gauhati High Court with effect from the date they assume charge of their respective offices. Notifications No.K-13018/02/2020-US.11 and No. K. 13018/03/2020-US.II dated 05-11-2020, have been issued in this regard by the Department of Justice, Ministry of Law & Justice.

Ministry of Law and Justice

[Press Release dt. 06-11-2020]

[Source: PIB]