Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Aniruddha Bose, JJ that it would accord final hearing in August on a batch of petitions challenging the Centre’s decision to deport illegal Rohingya Muslim immigrants to Myanmar.

The top court is also seized of petitions which support the government’s stand to deport over 40,000 Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar and are settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan.

The Court asked the counsel for parties to submit their written submissions in the meantime,

“Pleadings are complete. Parties are required file brief written submissions,”

Initially, two Rohingya immigrants — Mohammad Salimullah and Mohammad Shaqir, who are registered refugees under the United Nations High Commission of Refugees (UNHCR), had moved the Supreme Court in 2017 challenging the move to deport to Rohingyas on various grounds including that it violated international human right conventions.

“Proposed deportation is contrary to the constitutional protection of Article 14 (Right to Equality), Article 21 (Right to Life and Personal Liberty) and Article 51(c) of the Constitution of India, which provides equal rights and liberty to every person. This act would also be in contradiction with the principle of ‘Non-Refoulement’, which has been widely recognised as a principle of Customary International Law,”

The plea had also sought a direction that Rohingyas be provided basic amenities to ensure that they can live in humane conditions as required by international law.

The Centre had questioned the bonafides and motives of the NGOs and individuals seeking facilities for the Rohingya refugees, and stated that there is no discrimination between Indians and outsiders in providing health and education facilities.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J has asked the Chief Secretaries and DGPs of all the States and Union Territories to take strong and necessary measures to prevent attacks of Kashmiris and other minorities as an aftermath of the Pulwama Terror Attack. It directed:

“The chief secretaries, the DGPs and the Delhi Police Commissioner are directed to take prompt and necessary action to prevent incidents of threat, assault, social boycott etc against Kashmiris and other minorities.”

The bench sought responses from 10 State Governments, namely, are Jammu and Kashmir, Uttarakhand, Haryana, Uttar Pradesh, Bihar, Meghalaya, Chhattisgarh, West Bengal, Punjab and Maharashtra.

Directing that the police officers who were appointed as nodal officers to deal with incidents of mob killings will now be responsible to deal with cases of alleged assault on Kashmiris, the Court directed the Ministry of Home Affairs to give wide publicity of the nodal officers’ contact details so that those who need help can approach them easily.

The matter will next be heard on February 27.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and L. Nageswara Rao and Sanjay Kishan Kaul, JJ has set aside the Bombay High Court decision refusing the Maharashtra Police a ninety-day extension to file the charge-sheet under the Unlawful Activities Prevention Act, 1967 against the human rights activists in Bhima Koregaon violence case.

Background of the case:

The activists Surendra Gadling, Mahesh Raut, Rona Wilson, Professor Shoma Sen and Sudhir Dhawale were arrested after an FIR was lodged alleging that members of the ‘Kabir Kala Manch’, under the head ‘Bhima Koregaon Shouryadin Prerna Abhiyan’, held a meeting of the Elgar Parishad, where active members of CPI (Maoist) supposedly raised inflammatory slogans and engaged in certain other allied activities, with the intention to conspire, incite and abet the commission of terrorist acts and other unlawful activities by using violent means, thus, promoting enmity between different groups, which ultimately culminated 2 in the break-out of violent riots on 1.1.2018, at a place popularly known as Bhima Koregaon, where a large population of people was said to have gathered to celebrate the 200th anniversary of the battle at Bhima Koregaon.

Alleged non-compliance of the proviso to Section 43D(2)(b) of the Unlawful Activities Prevention Act, 1967:

On the question that whether the necessary ingredients of the proviso to Section 43D(2)(b) of the said Act were set out in the application for extension of a period of 90 days, for further investigation and filing of charge-sheet in the said crime, the Court explained that there are certain requirements that need to be fulfilled, for its proper application of the proviso to Section 43D(2)(b). These are as under:

  1. It has not been possible to complete the investigation within the period of 90 days.
  2. A report to be submitted by the Public Prosecutor.
  3. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.
  4. Satisfaction of the Court in respect of the report of the Public Prosecutor.

After perusing the material placed before it, the Court said that it cannot accept the argument that the material set out in the document does not meet with the requirements of the proviso, insofar as the reasons for seeking extension for the period of investigation are concerned. It, however, said that there is no doubt that the report/application of the public prosecutor, setting out the reasons for extension of 90 days of custody to complete investigation leaves something to be desired.

It was, however, noticed:

“The first document, purporting to be the application of the IO, contains the reasons for such extended period of investigation but the second document details out the grounds in extenso and cannot be said to be only a mere reproduction of what is stated in the first document. It cannot, thus, be said that there has been complete absence of application of mind by the public prosecutor. Undoubtedly the request of an IO for extension of time is not a substitute for the report of the public prosecutor but since we find that there has been, as per the comparison of the two documents, an application of mind by the public prosecutor as well as an endorsement by him, the infirmities in the form should not entitle the respondents to the benefit of a default bail when in substance there has been an application of mind.”

Ruling:

The Court, hence, set aside the Bombay High Court order and held that the respondents would not be entitled to the benefit of default bail. The Court, however, clarified that since charge-sheet has been filed, the observations made in the present order wouldn’t affect the right of accused to seek regular bail.

[State of Maharashtra v. Surendra Pundlik Gadling, 2019 SCC OnLine SC 188, decided on 13.02.2019]

Law School NewsOthers

The Centre for Advanced Studies in Human Rights (CASIHR), the premier human rights think tank of Rajiv Gandhi National University of Law, Punjab had recently observed October 2018 as ‘Human Rights Month’ within the campus. In a one of a kind move, the aim of the Centre was to raise awareness on human rights issues and expand the contours of such discourse on campus. The student members with the active support and leadership of Dr. Shilpa Jain, faculty coordinator, decided that devoting an entire month to the cause was the best way to sufficiently address the problem of Human Rights.

Several events were organised and they ran smoothly throughout the course of the month. Some were aimed to be thought-provoking and academic while others were more inclined to raise awareness through fun and games. The underlying purpose, however, was to facilitate an active and impassioned exchange of ideas between students.

The flagship event of Human Rights Month – October 2018 was ‘Conversations: A Human Rights Dialogue’. Envisaged as but a means to provide a platform for senior students to share their ideas on human rights with others, this two-part lecture series/academic discussion proved to be a great success. Headlined by two fifth-year speakers Mr. K.S.Roshan Menon and Mr. Raghav Mendiratta, the event drew a sizable audience and ended up creating quite a buzz around campus. These no-holds-barred discussions threw open the floor to all manner of questions from the audience and the resulting exchanges were equally entertaining and enlightening.

Perhaps the most popular of all the events held during Human Rights Month was ‘InQUIZitions: A Human Rights Quiz’. A first of its kind quiz focusing solely on world events relating to human rights, the event saw active participation from many interested students. The competition was fierce and the cash prizes up for grabs made things more compelling. The Quiz was of 3 rounds went on for about 2 hours. In the end, the event was concluded in a cordial manner with the prize winners undisputed and accepted by all. Also noteworthy were the quizmasters taking great pains to ensure that every participant left a little bit wiser than before.

Another major event organised by CASIHR was the Research Paper Writing Competition. With the objective of encouraging the research and writing skills of the students, this competition was announced with cash prizes and the opportunity of being published in the CASIHR Journal of Human Rights Practise (CASIHR JHRP), the flagship human rights journal of RGNUL, Punjab. The review process for the same is still underway.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of a media report that a six year old girl, studying in a government school in Delhi, has been allegedly raped by a person working as an electrician with the school around 1.30 P.M. on the 8th August, 2017.

The Commission has observed that the contents of the news report, if true, amount to violation of human rights of the victim. Accordingly, it has issued notices to the Chief Secretary, Government of NCT of Delhi and the Commissioner of Police, Delhi calling for a detailed report in the matter within four weeks. The Chief Secretary is expected to inform whether all the guidelines/directions issued by the authorities for the safety of the students are being followed by the schools in Delhi. The Commission has also observed that the incident is reported to have happened in a government school. Being the custodian of the students, the school authorities are responsible for the safety and security of its students, especially the girl students. Prima Facie the incident indicates towards negligence by the school administration.

The NHRC also feels that there should be a State Human Rights Commission in Delhi to deal with such cases of alleged violation of human rights. However, till it comes into existence, it would continue addressing the issues pertaining to the NCT of Delhi. According to the media report, carried on the 10th August, 2018, the incident took place when the victim girl was about to return home, but she was stopped by the accused. The accused also allegedly warned the victim not to tell it to anyone. The victim was medically examined and the reports confirmed that she has been subjected to rape. An FIR in the matter has been registered by the police and the accused has been arrested.

National Human Rights Commission

Conference/Seminars/LecturesLaw School News

Law Mantra is organising a one Day International Seminar on Human Rights & Persons with Disabilities, on 2nd December, 2018 at the Indian Law Institute, New Delhi in academic collaboration with CASIHR (Rajiv Gandhi National University of Law, Punjab), Maharashtra National Law University, Nagpur & International Council of Jurists, London.

Chief Patron: Justice Deepak Verma, Former Judge, Supreme Court of India

Patron: Prof. (Dr.) Paramjit S. Jaswal, Vice-Chancellor, Rajiv Gandhi National University of Law, Punjab.

             Prof. (Dr.) Vijender Kumar, Vice-Chancellor, Maharashtra National Law University, Nagpur.

Date: 2nd December, 2018

Venue: Indian Law Institute, Bhagwan Dass Road, New Delhi.

About Law Mantra

“Law Mantra” (headquarters New Delhi) (Registration No 150 in Book No. 4 Vol. No. 3, 603 0f 2018) is not for profit organisation running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. “Law Mantra” is a body of Jurists, Advocates, Academicians and Students running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. We at Law Mantra enable people to take responsibility for the situation of the deprived Indian women and children and so motivate them to seek resolution through individual and collective action thereby enabling women and children to realize their full potential.

Human Rights & Persons with Disabilities

The great German Philosopher Immanuel Kant has quoted that human beings are rational beings, therefore worthy of dignity and respect. Every individual has the basic right to live a dignified life and to exercise his freedoms and choices. The same phrase is equally applicable to persons with disabilities. But despite of this fact, persons with disabilities are subjected to discrimination. The one major factor of such discrimination is stigmatized societal attitude.

A mechanism of social integration of persons with disabilities has been made by following different international conventions and documents. Now world has joined to consider disability jurisprudence as an inseparable part of the international law. Universal Declaration of Human Rights and the Declaration on the Rights of Disabled Persons and Convention on the Rights of Persons with Disabilities are few important documents justifying the aforementioned proposition.

In a recent report of WHO, an estimated 10% of the world’s population –approximately 650 million people, of which 200 million are children, experiences some form of disability. The number of people with disabilities is growing as a result of different factors including population growth, ageing and medical advances that preserve and prolong life.

Across the world, people with disabilities have poorer health outcomes, lower education achievements, less economic participation and higher rates of poverty than people without disabilities. This is partly because people with disabilities are facing barriers in accessing services that many of us have long taken for granted. These services mainly include health, education, employment, transport and information. These difficulties are exacerbated in less advantaged communities.

To achieve the long-lasting, vastly better development prospects that also lie at the heart of the 2015 Millennium Development Goals and beyond, we must empower people living with disabilities and remove the barriers which prevent them participating in their communities; getting a quality education, finding decent work, and having their voices heard.

People with disabilities report seeking more health care then people with without disabilities and have greater unmet needs. For example a recent survey of people with serious mental illness showed that between 35% and 50% of people in developed countries and between 76% and 85% in developing countries received no treatment in the year prior to study. Health promotion and prevention activities seldom target people with disabilities. For example women with disabilities receives less screening for breast and cervical cancer than women without disabilities. People with intellectual disabilities are less likely to have their weight checked. Adolescents and adults with disabilities are more likely to be excluded from sex education programs. These factors from world report on disability by World Health Organization clearly indicates that there is need to work at the ground level so that persons with disabilities can enjoy their human rights without any difference from others.

The present seminar is aiming at highlighting different issues underlining disability jurisprudence from human rights perspective. We welcome different stakeholders including persons with disabilities, disability law activists, academicians, researchers, lawyers, medical professionals and bureaucrats.  This seminar is a noble initiation of Law Mantra in association with RGNUL Punjab through its Research Centre for Advanced Studies in Human Rights, upcoming Centre for Disability Studies and Health Laws and MNLU, Nagpur. We are considering this seminar as a platform to initiate a RIGHT discourse, expecting thought provoking, multidisciplinary, quality research papers.

Themes for Seminar

  • Social Integration and Challenges
  • Human Rights of women, children & sex workers
  • Discrimination and Human Rights violation
  • The role of National Human Right Commission in promotion and protection of Human Right
  • Human Rights of Indigenous people
  • Mob Lynching and Vigilantism
  • Conflict between IPR/Business Law and Human Rights
  • Disability as a Social Impairment
  • Social Model of Disabilities and Human Rights
  • Disability and Human Rights: Legal Framework
  • International Humanitarian Law and Rights of Persons with Disabilities
  • Healthcare and Disability
  • Medical Professionals and Interaction with Persons with Disabilities
  • Reproductive Rights of Women with Disabilities: International Human Rights Perspective
  • Right to Education and Persons with Disabilities
  • Right to Employment and Disability
  • Healthcare and Treatment of Persons with Disabilities: A Issue of Consent
  • Healthcare and Privacy Issues related to Persons with Disabilities
  • Comparative study on Disability Laws and Policies
  • Indian Laws and UNCRPD: Future of Disability Laws

Note: These Themes are not exhaustive; Authors are open to work on any topic related to above-mentioned theme.

Procedure for Submission of Abstracts: Abstract (of about 250 words) should be sent as an attachment in a word file. Abstracts will be peer reviewed before they are accepted. The following information, in the given format, should be send along with the Abstract:

  • Name of the Participant
  • Official Designation/Institution Details
  • Address and Email id
  • Title of Abstract
  • Abstract

The subject line of Email should read as: ‘Abstract Submission for International Seminar on Human Rights & Persons with Disabilities”.

Guidelines for Paper Submission

  • The title of the paper should be followed by Name, Designation, Name of the Organization / University / Institution and Email address. It is mandatory to mention Email address, as all future correspondence will be through it.
  • Name and details of Co-author, if any.
  • The paper should be typed in MS WORD format (preferably 2007 or 2010).
  • The paper must be in single column lay out with margins justified on both sides.
  • The sub heading should be in font size 12, bold and Times New Roman, left aligned.
  • The main text should be in font size 12, Normal, Times New Roman, 1.5 spacing and Justified.
  • The length of paper should not exceed 6,000 words (including footnotes). Exceeding the word limit may lead to rejection of paper.
  • All references must be in the form of footnotes with font size 10 and should be according to the Bluebook 19th Edition.

Publication Opportunity: All papers accepted for the conference will be published in UGC Referred Book bearing ISBN, CASIHR Journal on Human Rights Practice (JHRP) by RGNUL, Contemporary Law and Policy Review – NLU Nagpur, International Journal of Legal Research and Governance and Law Mantra Journal. (If Selected for Publication in UGC Referred Book bearing ISBN, Publication Charge will be Extra as Per bill of Publication House).

REGISTRATION FEE FOR PRESENTATION OF PAPER
Students Rs 1500/-
Faculties/Professionals/Research Scholars/Others Rs 2000/-
Presentation in Absentia for Students Rs 2000/-
Presentation in Absentia Faculties/Professionals/Research Scholars/Others Rs 2500/-
REGISTRATION FEE FOR ATTENDING THE SEMINAR
Students Rs 800/-
Faculties/Professionals/Research Scholars/Others Rs 1200/-
IMPORTANT DATE
Submission of Abstract 05th October, 2018 (Extended)
Confirmation of abstract selection 07th October, 2018 (Extended)
Registration 25th October, 2018
Submission of full paper 27th November, 2018
Seminar Date 2nd  December, 2018

Who Should Attend?

Students, Research Scholars/Faculties/Academicians, Disability Rights Activist, Corporate Delegates, Business entities, Lawyers.

Rules for the Participants:

  • No abstract or full paper shall be accepted after the last date of submission respectively.
  • Participants/Paper Presenters have to register after the acceptance of abstract with payment of required fees.
  • For participation, registration is mandatory on confirmation of the participation. Only registered participants will be allowed to take part in Conference.
  • All the registered participants will be provided a participation certificate, conference kit, lunch and tea.

Note: The authors and co-authors both have register separately. The registration fee includes conference kit, lunch, High Tea, entry to all Technical session, and Certificates.

Eastern Book Company and SCC Online are proud to associate as Law School Partners. Please mention SCC Online Blog as reference.

Registration: Submit your abstract to editor.lawmantra@gmail.com with Subject line ‘Human Rights & Persons with Disabilities”.

Contact: For any queries, feel free to drop email to editor.lawmantra@gmail.com  Human Rights & Persons with Disabilities  or call on +91- 9310053923, +91-9667822453.

To view the Brochure, click HERE

Website: www.lawmatra.co.in

www.lawmantra.org

Conference/Seminars/LecturesLaw School News

Knowledge Steez along with Youth for Human Rights, Nepal brings to you Winter School on Human Rights 2018 taking place at Hotel Thamel Park, Kathmandu, Nepal from 24th December 2018- 29th December 2018.

Participation: We at Knowledge Steez invite all the ardent Students, Professors, Faculty Members, Human Right Activists and anyone anxious to learn about Human Rights.

Early Registration (before 30th September 2018)

  • Delegates from India; 12000 INR
  • Delegates from India (with accommodation); 18000 IN
  • Delegates from Nepal (without accommodation); 14000 NPR
  • Delegates from Nepal (with accommodation); 22000 NPR
  • Other Delegates; 200 USD (without accommodation) and 300 USD (with accommodation)

Registration Fee (after 30th September 2018)

  • Delegates from India; 14000 INR
  • Delegates from India (with accommodation); 20000 INR
  • Delegates from Nepal (without accommodation); 16000 NPR
  • Delegates from Nepal (with accommodation); 24000 NPR
  • Other Delegates; 200 USD (without accommodation) and 350

Mode of payment

Wire Transfer:

Recipient:

Bank Name: Mega Bank Nepal ltd.

Address: New Road Branch, Kathmandu, Nepal

Swift Code: MBNLNPKA

Account Name: Youth for Human Right, Nepal

Account No.:0100010102086

Western Union/Moneygram/IME:

Recipient Name: Rahul KC

Address: Kathmandu, Nepal, Contact: +977 9851189599

Kindly mail the receipt at winterschoolnepal2018@gmail.com

Instructions:

  • Accommodations not be provided to all participants. Only those who opt for accommodation will be provided with accommodation.
  • The organizers will only provide a letter for VISA purposes. Apart from this, the organizers will not take any responsibility for VISA of the participant.
  • Accommodation will be provided on twin sharing basis.
  • The registration fee will not include transportation (local, international).
  • It is advisable for participants to have health Insurance Policy

Refund of Registration fee: In case an applicant wants to withdraw his/her application, (in such a case, 70% of the application fee will be refunded back) (in case refund application is given before 30th November) and if the refund application is made after 30th November then no refund will be made to such an applicant.

What’s special: The Winter School will act as a platform for Delegates from various countries to come forward and learn about Protection and Enforcement of Human Rights in their respective countries. The content for the subject is developed by the experts of Human Rights and the content has been developed keeping in mind the needs and circumstances of different countries. The Delegates will also get an opportunity to discuss the situation prevailing in the country and can at the same time suggest the appropriate solution to others.

Contact us: Phone: 7782044252 | Email: winterschoolnepal2018@gmail.com  | Web: www.knowledgesteez.com

Law School NewsOthers

The admissions for Diploma in Human Rights & Laws will commence from 17th July 2018. Last date for applying is 30th July 2018. Interested students can register themselves online through Net Banking, Credit Card, SBI Branch (Cash Deposit). Admission will be confirmed on payment of the fees.

Number of seats : 50

Fees :

1. Rs 10000 + 18% GST = Rs 11800/- ( Current ILS students )

2. Rs 12000 + 18% GST = Rs 14160/- (Non ILS including ex-students of ILS)

Class timings and days : Every Tuesday and Wednesday 8.00 am to 10.00 a.m.

Course Co-ordinator: Dr Sita Bhatia.

The lectures will begin from 31st July at 8.00 a.m.

Course contents:

Module I:      Theoretical/ Philosophical /jurisprudential Approach

Module II:     International & Regional Human Rights Approach

Module III:   Human Rights under Domestic Laws and case laws

Module IV:   Judiciary and Human rights

Module V:     Human Rights of various vulnerable persons and groups

Module VI:   Study of various commissions on Human Rights

Module VII: a) Media & human rights

b) Public Participation & human rights

c) NGOs & INGOs and human rights

Module VIII:   Humanitarian Laws

a) Human Rights & Development

b) Human Rights & Right to self determination

Module IX:  Project/Dissertations on various Human Rights topics/issues

Module X:   Practical and Legal Training

Duration:  2 semesters

Eligibility: 1.  II, III, IV and V year BSL LLB or

    2. .All years of Three Year Law Course (LL.B.) or

    3. Graduation in any faculty

Seats: Minimum 20; Maximum 40

Classes: Tuesday & Wednesday (1.30 p.m. to 3.30 p.m.)

Assessment Pattern:  Written examination   50 marks

  Viva-voce                      20 marks

  Dissertation                  30 marks

   Total                             100 marks

Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Hot Off The PressNews

Supreme Court: The Bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked the Central government to file a comprehensive status report, giving details on the condition of Rohingya camps in Haryana, Jammu and Kashmir and Delhi-NCR after Senior advocate Colin Gonsalves submitted before the Court that the conditions at the Rohingya camps are “unhygienic and pathetic”.

Colin Gonsalves, appearing for one of the petitioners, told the Court that the refugees had no access to clean sanitation facilities such as toilets and clean drinking water, that was leading to their deaths and that  the Centre and the states, hosting these refugees, should be asked to provide better hygienic facilities at these camps.

The Rohingya immigrants, who fled to India after violence in the Rakhine state of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. More than 600,000 refugees are languishing in Bangladeshi refugee camps after fleeing a brutal Myanmar army campaign launched in August last year.

Source: ANI

OP. ED.

Indian judiciary has taken up a much-needed active role in the policies of the nation. Rather than being silent spectators to the policies or passive onlookers to lack thereof, Indian judiciary has rightly protected the citizens by judicial activism. Indian courts are not finding opportunities for judicial activism, adventurism or overreach but are compelled to do so because of legislative and executive inaction that deprive citizens of the basic freedom i.e. right to life, right to breathe clean air, right to proper livelihood, right to sleep, etc. guaranteed by Article 21. One of the most prominent developments from judicial activism has been in environmental jurisprudence. The lack of proper policies, incompetency to implement laws and absence of capable authorities has compelled courts to overstep their power, rightfully so in many environment cases, where the Government and public authorities have failed to take appropriate steps and ensure the safety and peace of mind of citizens guaranteed by the Constitution.

A country riddled with power, poverty and pelf, with the legislature and executive in the nucleus of it, it is imperative for judiciary, an authoritative independent unbiased body, to guarantee human rights to citizens. Kesavananda Bharati[1], Maneka Gandhi[2] and S.P. Gupta[3] has opened floodgates for judicial activism. In Kesavananda Bharati[4] CJI Sikri authored the basic feature doctrine that till date remains the bedrock of the Indian Constitution. Maneka Gandhi[5] vested power with the Court to adjudge if a particular action, matter, policy or even law was just, fair and moral. The Indian Court is vested with the power of judicial review under Articles 32 and 226 with the aid of writs and public interest litigation (PIL), the Supreme Court and the High Court have been able to deal with series of public grievances and flagrant basic human right violations by the State.

In Municipal Council, Ratlam v. Vardichan[6], Court held that it was compelled to overstep its power because of the “callous public bodies habituated to deleterious inaction[7]”. Inaction by municipal authorities to eliminate stink and stench of open drains, forced the Court, while upholding Article 21— right to life, to order municipal authorities to take immediate actions to provide basic amenities to residents and construct sufficient drains and provide water supply. In Goa Foundation v. Konkan Railway Corpn.[8], the Court while noting that although the Government was not powerless to act but just chose not to, ordered the lethargic Government to take action against pollution caused by mines. In M.C. Mehta v. State of Orissa[9], the Court while upholding Article 21 — right to life, established a law of “polluter pays” and “absolute liability”, when State functionaries failed to take appropriate measures and eradicate problems of proper dumping of waste materials. In 2005, because of the absence of appropriate action taken by the Government, the Court ordered a complete ban on sound emitting firecrackers from 10 p.m. to 6 a.m. in the light of Article 21— right to life[10]. Seeing the soaring air pollution rate during Diwali in the previous year, in 2017, the Court, upholding Article 21 — right to breathe clean air and noting “the response of the Government [being] lethargic with the absence of any keenness to take proactive steps[11]”, ordered ban on the sale of firecrackers because of Governments incompetence to issue necessary directions. In each of such judgments, the judiciary has rightfully overstepped its powers only because of the legislatures and executives inaction to ensure the basic right to life to its citizens.

Surely, even after the much-needed orders passed by the courts in such gross violations of human rights, the judiciary’s competence to act outside its scope remains a point of contention as it defeats the doctrine of separation of powers. At the same time, courts are supposed to and entitled to exceed its scope of its mandate to protect interests of the public to fill the voids left by the legislature and the executive[12]. The judiciary inherently is the sentinel qui vive — watchdogs on the lookout[13]. Courts have rightly viewed human rights and environmental protection on the same footing and while acting as the guardian of fundamental rights has protected the right of each individual in regard to environment under Article 21. It is contended that judiciary is not a competent body in such cases as it is not a representative body. Justice A.K. Goel, while striking down National Judicial Appointments Commission (NJAC), held that “even if the judiciary is not an elected body today, it discharges constitutional functions as per the will of the people reflected in the Constitution and the task determining the powers of various Constitutional organs is entrusted to the judiciary”[14]. It is well established that the judiciary is the watchdog of the nation and it ought to/should overstep its boundaries to maintain safety, peace and order. The courts are rightly entitled to participate actively in the welfare and betterment of the society and impose rules and regulations be it in cases of environmental degradation[15], custodial violence[16], education reforms[17], corruption in private organisations[18], illegal slaughter[19], sexual harassment[20], etc. to ensure right to life to citizens guaranteed by Article 21 that is infringed or overlooked by the incompetence and inaction of responsible authorities.

 

*Manavendra Gupta, Member, Young ICCA (International Council for Commercial Arbitration); LL.B., O.P.Jindal Global University (Class of 2019); B.A., Political Science and Economics, UMass Amherst (Class of 2016)

[1]  Kesavananda Bharati v. Union of India, (1973) 4 SCC 225.

[2]  Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[3]  S.P. Gupta v. Union of India, 1981 Supp SCC 87.

[4]  (1973) 4 SCC 225.

[5]  (1978) 1 SCC 248.

[6]  (1980) 4 SCC 162 : AIR 1980 SC 1622.

[7]  Ibid.

[8]  1992 SCC OnLine Bom 205 : AIR 1992 Bom 471.

[9]  1992 SCC OnLine Ori 19 : AIR 1992 Ori 225.

[10]  Noise Pollution  (V), In re, (2005) 5 SCC 733.

[11]  Arjun Gopal v. Union of India2017 SCC OnLine SC 1071, para 58.

[12]  Sathe S.P., Judicial Activism in India, Oxford University Press, 2003.

[13]  Nariman Fali, V.R. Krishna Iyer Memorial Lecture Series — The Super Judge, 2016.

[14]  Supreme Court Advocates-on-Record Assn. v. Union of India, A.K. Goel J., (2016) 5 SCC 1, 723, para 1070.

[15]  Arjun Gopal v. Union of India, 2017 SCC OnLine SC 1071 .

[16]  Nilabti Behera v. State of Orrisa, (1993) 2 SCC 746 (Ss. 41-A, 41-B, 41-C, 41-D of CrPC).

[17]  Christian Medical College v. Union of India, (2014) 2 SCC 305.

[18]  Board of Control for Cricket in India v. Cricket Assn. of Bihar, (2017) 2 SCC 333.

[19]  K. Ragu Rama Krishna Raju v. State of A.P., (2015) 3 SCC 550.

[20]  Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Human Rights Commission: NHRC has taken suo motu cognizance of media reports about the killing of an alleged gangster, Sumit Gurjar, in an encounter by police in Greater NOIDA, Gautam Budh Nagar, Uttar Pradesh on 3rd October, 2017. It has issued notices to the Chief Secretary and the Director General of Police, Uttar Pradesh and calling for a report in the matter within four weeks.

Reportedly, the family members of the deceased have alleged that he was killed in a staged encounter after police had picked up him from a market. They along with villagers protested against the police action near the mortuary at Sector- 94 of NOIDA and also blocked the traffic at Mahamaya Flyover for about 45 minutes.

The Commission has observed that the allegations leveled by the family members and the villagers, if true, raise serious issue of violation of human rights of the deceased and the aggrieved family. Elimination of a criminal in such an unlawful manner can never send a good message to a civilized society. As has been emphasized time and again, the police do not have a right to take away life of a human being. It is not the lawful way to deal with the criminals.

The Commission has already issued guidelines to deal with the matter relating to deaths in police encounter which have been circulated vide a letter dated 12th May, 2010 written by the Chairperson, NHRC to the Chief Ministers of all States and the Union Territories.

According to the media reports, the deceased Sumit Gurjar was wanted in a case of double murder and robbery. He had been taken into custody by the Noida police but no satisfactory answer was given by the police officers. It was only when the television broke the news that his family members came to know about his encounter.

Reportedly, the police authorities have denied the allegations of a fake encounter. The personnel of Kasna and Bisrakh police stations have claimed that the deceased was shot dead in an encounter in which his three accomplices managed to escape. According to the Senior Superintendent of Police, Gautam Budh Nagar, a fair investigation into the matter will be conducted.

National Human Rights Commission

Case BriefsSupreme Court

Supreme Court: In the case where 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ listed the matter for further hearing on 21.11.2017. The Court said:

“As the hearing is likely to take some time, we intend to devote certain clear days for the purpose of hearing.”

Though the order of the Court does not expressly say anything on the deportation of the Rohingya Muslims, the Central Government will not be able to deport them till the next date of hearing. Fali S. Nariman, appearing for petitioners had submitted before the Court that he will approach the Court in case of any contingency.

The Court had said during the hearing that the matter was of great magnitude and hence, it will have to strike a balance between National Security and the human rights of the women and children.

Earlier, Centre had argued before the Court that more than 40,000 Rohingya Muslims have illegally migrated to India by using the porous border between India and Mayanmar and as per the reports of the Security agencies, some of the Rohingya Muslims have links with the Pak terror groups. It was also argued before the Court that some illegal immigrants have obtained fake Indian identities and are involved in serious crimes like Human Trafficking and mobilisation of funds  by way of Hundi and Hawala Channels. [Mohammad Salimullah v. Union of India, Writ Petition (Civil) No.793/2017, order dated 13.10.2017]

[With inputs from ANI]

Hot Off The PressNews

Supreme Court: In the plea seeking replacement of death by hanging, the Supreme Court has asked the Central Government to give a detailed response within 3 months on whether the Legislature can consider any mode other than hanging for the death convicts.

The Court said that the Constitution of India is compassionate and recognises the sanctity of life and hence, with the invention of various modes in modern time, legislature can think of other mode for death convicts, keeping in view the dynamic progress in science.

Source: ANI

Hot Off The PressNews

Supreme Court: In the case where the Court had sought detailed response from Central Government after 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the Centre urged the Court to refuse to interfere in the matter and let the Government take a policy decision as there is serious threat to National security is the illegal immigrants from Mayanmar are allowed to stay in India.

It was Centre’s case that more than 40,000 Rohingya Muslims have illegally migrated to India by using the porous border between India and Mayanmar and as per the reports of the Security agencies, some of the Rohingya Muslims have links with the Pak terror groups. It was also argued before the Court that some illegal immigrants have obtained fake Indian identities and are involved in serious crimes like Human Trafficking and mobilisation of funds  by way of Hundi and Hawala Channels.

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ has listed the matter on 03.10.2017.

Source: ANI

Hot Off The PressNews

In the case where the Court had sought detailed response from Central Government after 2 Rohingya Muslim refugees, Mohammad Sallimullah and Mohammad Shakir, urged the Supreme Court to direct the Central government not to deport them to Myanmar as they would face certain death on being deported to Myanmar, the Centre filed an affidavit with the Supreme Court stating that ‘Rohingyas are a threat to national security’.

Earlier,  advocate Prashant Bhushan, appearing for the petitioners, had asserted that deporting the petitioners would be unconstitutional as the Supreme Court had repeatedly ruled, as in the case of Chakma refugees, that it was the cardinal duty of the Union government to protect refugees who leave their own country because of persecution at the hands of State authorities. He also told the Court that approximately 40,000 Rohingya Muslims residing in India were registered with the UN High Commissioner for Refugees.

Source: ANI

Hot Off The PressNews

Supreme Court: After 2 Rohingya Muslim refugees urged the Supreme Court to direct the Central government not to deport them to Myanmar, the Court has sought a detailed response from the Centre. The petitioners, Mohammad Sallimullah and Mohammad Shakir, told the Court that they would face certain death on being deported to Myanmar.

Earlier, their advocate Prashant Bhushan asserted that deporting the petitioners would be unconstitutional as the Supreme Court had repeatedly ruled, as in the case of Chakma refugees, that it was the cardinal duty of the Union government to protect refugees who leave their own country because of persecution at the hands of State authorities. He also told the Court that approximately 40,000 Rohingya Muslims residing in India were registered with the UN High Commissioner for Refugees.

Source: ANI

Hot Off The PressNews

Supreme Court: In the matter where the National Human Rights Commission (NHRC) had sought direction to all states for mandatorily giving information to it about any encounter killings in their jurisdiction for the purposes of enquiry, the bench of Kurian Joseph and R. Banumathi, JJ referred the matter to a larger bench.

The NHRC, in its plea filed in 2014, has sought direction to state governments and police authorities that they should continue to provide the information asked for by it in accordance with the guidelines and provisions of the Protection of Human Rights Act, 1993, to probe the cases of encounter killings. It also sought direction to the state governments that they should not refuse to comply with the recommendations made by Commission. It had also argued that due to the Supreme Court verdict of 2014 by which certain guidelines were framed, its role in such enquiries has virtually been nullified. It had said that Section 12(a) of the Act makes it a mandatory obligation upon the NHRC to inquire on its own or on a petition presented to it by a victim, into the complaints of human rights violation by a public servant.

Senior advocate Gopal Subramaniam and advocate Shobha Gupta, appearing for the Commission, said it is a pure question of law as the Act provided for it to enquire on its own or on a petition presented to it by a victim or any person on his behalf into any complaint of violation of human rights by a public servant.

The Court said that a larger bench will look into the matter.

Source: PTI

Case BriefsSupreme Court

Supreme Court: In the petition where directions for the rehabilitation of the widows of Vrindavan were sought so as to bring them to a stage where they can live with dignity, the bench of Madan B. Lokur and Deepak Gupta, JJ formed a 6-member Committee to study the 18 reports filed by  the National Commission for Women, the Ministry of Women and Child Development and the State of Uttar Pradesh among others and formulate an action plan within two months and in any case on or before 30th November, 2017.

The petition was filed based on the article “White Shadows of Vrindavan’ written by Atul Sethi and published in the New Delhi edition of the Times of India of 25.03.2007, which highlighted the pathetic and shocking conditions of the widows living in Vrindavan – begging in temples and then huddling together in hovels. It mentioned that the widows congregate in some ashrams or temples where they sing bhajans and are paid about Rs. 18 per day for about 7 to 8 hours of singing and that they were spending the rest of their time begging on the streets. Many of them are too old to look after themselves requiring others to pool in their resources to look after them.

Various reports were submitted before the Court after a Social Justice Bench was constituted by the Chief Justice of India in 2015. Solicitor General also submitted an Action Plan on 18.07.2017. The Court said that the effort put in by all concerned in the reports should not go waste and it must be gainfully utilized, being in a sense a gold mine of pragmatic and workable suggestions. The Committee constituted by the Court includes:

  1. Suneeta Dhar of NGO Jagori,
  2. Meera Khanna of Guild for Service
  3. Abha Singhal Joshi, Lawyer and activist
  4. A nominee of HelpAge India, an NGO that has rendered valuable assistance in this case,
  5. A nominee of Sulabh International, an NGO that has rendered valuable assistance in this case,
  6. Aparajita Singh, a lawyer practising in this Court to provideany assistance on legal issues.

The Court noticed that all that widows in some parts of the country are socially deprived and to an extent ostracized and perhaps this is the reason why many of them choose to come to Vrindavan and other ashrams where, unfortunately, they are not treated with the dignity they deserve and it is important to give voice to these hapless widows. In order to follow-up on the Agreed Action Plan submitted by the Solicitor General, the Court will take up the matter on 09.10.2017. [Environment and Consumer Protection Foundation v. Union of India, 2017 SCC OnLine SC 916, decided on 11.08.2017]

 

Case BriefsSupreme Court

Supreme Court: In the writ petition seeking implementation of Disaster Management Act, 2005 as many States were not fully prepared to deal with a disaster and therefore necessary directions ought to be given by this Court for proper implementation of the Act, the Court said that it is absolutely necessary for the National Disaster Management Authority (NDMA) constituted at the national level and the State Disaster Management Authority at the State level to be ever vigilant and ensure that if any unfortunate disaster strikes there should be total preparedness and that minimum standards of relief are provided to all concerned.

The writ petition was filed after the unprecedented flood and landslide disaster that occurred in Uttarakhand in 2013 and it was alleged that the adverse impact of disaster could have been mitigated had there been effective implementation of the Disaster Management Act, 2005 and adequate preparedness by the State Government of Uttarakhand. The Court, hence, sought affidavits from Central and State Governments and after showing some laxity at first, the Union Government, on 25th February, 2016 sent a communication to the Chief Secretaries of all the States by the Joint Secretary (Policy and Plan) of the NDMA and asked them to frame minimum standards of relief for victims of disaster.

Regarding the obligation to establishment of an Advisory Committee, the bench of Madan B. Lokur and Deepak Gupta, JJ said that Section 17 of the Act does not make it mandatory and it is really for the State Disaster Management Authority to constitute one or more Advisory Committee as and when it becomes necessary to do so on different aspects of disaster management.

The NDMA also submitted that all States except Andhra Pradesh and Telangana have prepared a State Disaster Management Plan which is very much in place and that the District Disaster Management Authority has been constituted in every district under Section 25 of the Act and out of 684 districts in the country, a District Disaster Management Plan is in place in 615 districts while it is under process in the remaining districts.

Considering the above submissions by the NDMA, the Court noticed that there has been sufficient compliance with the provisions of the Act, however, it would be advisable for the NDMA to regularly publish its Annual Report to review and update all plans on the basis of experiences and to make its website multilingual so that all concerned may benefit. [Gaurav Kumar Bansal v. Union of India, 2017 SCC OnLine SC 550, decided on 08.05.2017]