suo motu cognizance

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where the mother (‘applicant’) who is in judicial custody for an alleged grave offence seeks interim bail to get her child admitted in a school, Swarana Kanta Sharma, J. took suo motu cognizance and directed Delhi police to ensure admission of the child recognizing right to education as a fundamental right of the child. The bail application was thus directed to be withdrawn and a compliance report was sought regarding admission.

The present application was filed by the petitioner seeking interim bail for two weeks in FIR registered under sections 302/365/292/397/411/120-B/201 & 34 Penal Code, 1860 (‘IPC’) for alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain. The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11-07-2021. The application was preferred by the mother of the child on the grounds that she is concerned about the admission to a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted to any school.

It was brought to the attention of the court that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. Investigating Officer (IO) also verified the same stating that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.

The Court noted that once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. Thus, the child must get admitted in a school at the earliest so that the shadow of nothing unpleasant happening falls upon the child’s life to darken her future.

The Court further noted that in the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is the education of the child. Thus, court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year 2022-23.

The Court directed the SHO concerned to get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education and asked the principal of the school to extend full cooperation for the admission of the child. The compliance report is directed to be filed within 10 days.

[Kamini Arya v. State of NCT of Delhi, 2022 SCC OnLine Del 2367, decided on 03-08-2022]

Advocates who appeared in this case :

Ms. Anu Narula, Advocate, for the Petitioner;

Mr. Manoj Pant, APP for the State with Inspector Devendra Singh, P.S. Mohan Garden, Advocates, for the State.

*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has, “in order to allay all apprehensions and only as a confidence building measure”, directed that the security to the victim’s family and the witnesses in the Hathras Gang Rape case shall be provided by the CRPF within a week.

BACKGROUND OF THE CASE

The case pertains to the brutal gang-rape and assault of a 19-year¬old girl, resident of Hathras village in Uttar Pradesh. Though she was shifted to Safdarjung Hospital in Delhi, she breathed her last and she was cremated in the middle of the night without the presence of her family members. Considering the manner in which the entire incident had taken place, the petitioners contended that a fair investigation would be possible only if the matter is entrusted to an independent agency.

It was prayed that

  1. if need arises, the case be transferred to the Central Bureau of Investigation or SIT be formed to investigate the matter.
  2. a sitting or retired Supreme Court Judge or High Court Judge be appointed to look into the matter.
  3. the case be transferred from Hathras, Uttar Pradesh to Delhi.

Concerns were also raised by Senior Advocate Indira Jaising with regard to the adequate protection being provided to the victim’s family members and the witnesses. An affidavit filed by the Home Department, Uttar Pradesh on October 14, 2020 regarding the same which stated:

  • The parents, two brothers, one sister¬in-law and grandmother of the victim who are residing at village Chandpa, District Hathras, Uttar Pradesh have been provided protection under a three-fold protection mechanism through

(a) Armed Constabulary Component,

(b) Civil Police Component and

(c) Installation of CCTV cameras/lights.

  • The investigation by the CBI would be conducted under the supervision of the Court in a time bound manner.

The Director General of Police, State of Uttar Pradesh also filed an affidavit indicating   that   the   State   Government   itself   has   sought investigation by the CBI to be conducted under the supervision of the Court and on 10.10.2020 the CBI accepted the request of the State and has started investigation in respect of the crime, on 11.10.2020.

WHAT THE SUPREME COURT SAID

On the apprehension that the Uttar Pradesh Police will not conduct a proper and fair investigation

Considering the abovementioned facts, the Court noticed that the undisputed fact is that the investigation has in fact been entrusted  by the State Government itself to the CBI on 10.10.2020 and the CBI has started investigation in respect of the crime on 11.10.2020. Therefore, the apprehensions expressed by the petitioners/applicants that there would be no proper investigation if the Uttar Pradesh Police conducted the same would not remain open for consideration at this stage.

On Supreme Court Monitored Investigation

The Court further noticed that the Allahabad High Court has adequately delved into the aspects relating to the case to secure fair investigation and has also secured the presence of the father, mother, brother and sister-in-law of the victim and appropriate orders are being passed, including securing reports from various quarters. Hence, the Court did not find it necessary “to divest the High Court of the proceedings and take upon this Court to monitor the proceedings/investigation.”

Further, the incident having occurred within the jurisdiction of that High Court and all particulars being  available, it would be appropriate for the High Court to proceed to monitor the investigation in the manner in which it would desire.

“In that view, it would be open for the writ petitioners/applicants herein to seek to intervene in the matter before the High Court subject to consideration of such request by the High Court and if it finds the need to take into consideration the contentions to be urged by the petitioners/applicants   in that regard.”

It hence, directed that the CBI shall report to the High Court in the  manner as would be directed by the High Court through its orders from time to time.

On security to the victim’s family and witnesses

The Court noticed that though steps have been taken by the State Government to make adequate arrangement for security to the victim’s family and witnesses, however, in a matter of the present nature it is necessary to address the normal perception and pessimism which cannot be said as being without justification. Hence,

“without casting any aspersions on the security personnel of the State Police; in order to allay all apprehensions and only as a confidence building measure, we find it appropriate to direct that the security to the victim’s family and the witnesses shall be provided by the CRPF within a week from today.”

On transfer of case to Delhi

As indicated by advocate Seema Kushwaha, appearing for the victim’s family indicated that the need   for transfer would arise after the investigation is complete, the Court said that

“… it would be appropriate for investigating agency to complete the investigation and in any event since the local police have been divested of the investigation and the CBI is carrying out the investigation there would be no room for apprehensions at this stage. However, the issue as to whether the trial of the case is to be transferred is a matter which is kept open to be considered if need arises in future.”

On the name and relationship of the family members with the victim being depicted in the High Court’s order

Since it is a requirement of law to avoid such disclosure, the Supreme Court requested the High Court to delete the same and also morph the same in the digital records and avoid indication of such contents in future.

[Satyama Dubey v. Union of India, 2020 SCC OnLine SC 874, decided on 27.10.2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Rajan Roy and Jaspreet Singh, JJ., while taking suo motu cognizance of an extremely sensitive and important matter reminded itself of Mahatma Gandhi’s words and stated that,

This is a time to strengthen our resolve to live up to the ideas which “Bapu” stood for, but, unfortunately, ground realities are very different from the high values propagated and practiced by the Father of our Nation.

Bench stated that the matter touches upon the basic human/fundamental rights of the citizens of the country and residents based on certain newspaper items and programs shown in the media, according to which a young 19-year-old girl in Hathras was subjected to gang rape.

The perpetrators had broken her bones and mutilated her tongue.

The victim fought for her life for almost 2 weeks but ultimately she succumbed to death on 29-09-2020.

Court stated that the incidents which happened after the victim’s death leading up to her cremation have shocked their conscience.

In view of the above, the bench has taken suo mou cognizance of the matter.

Cremation performed forcibly and without consent of family members

As per the media reports, the dead body of the victim was taken to her native village but the Court was pained and shocked to note that the same was not handed over to the family members and the body of the victim was cremated with the help of some other persons.

The family members kept demanding for the body and informed that as per their traditions, the cremation cannot be taken place after sunset, yet the District Authorities got the cremation performed contrary to the traditions.

Allegation of High Handedness by State Authorities

Court added that the matter is of grave importance as it involves an allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights of both the deceased and her family.

Court in view of the present matter, referred to the decision of Supreme Court in Parmanand Katara v. Union of India, (1995) 3 SCC 248, wherein the court considered various facets of Right to Life enshrined under Article 21 of the Constitution of India.

“…right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death“

Bench also quoted Oscar Wilde who said,

“Death must be so beautiful. To lie in the soft brown earth, with the grasses wearing above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace.”

Bombay High Court’s decision in Pradeep Gandhy v. State of Maharashtra; 2020 SCC Online Bombay 662 was also referred to wherein,

“Right to a decent burial commensurate with the dignity of the individual was reiterated as a recognized facet of the Right to life guaranteed under Article 21 of the Constitution.”

Issues to be examined:

  • Whether there has been a gross violation of the fundamental rights of the deceased victim and the family members of the victim?
  • Whether the State Authorities have acted oppressively high handedly and illegally to violate such rights as if it is found to be so, then, this would be a case where accountability will not only have to be fixed but for future guidance also stern action would be required.
  • Whether the economic and social status of the deceased’s family has been taken advantage of by the State Authorities to oppress and deprive them of their Constitutional rights?

Rights available under the Constitution are to be protected

Rights of the individual citizens in the Country and State especially that of the poor and the downtrodden such as the family members of the deceased victim and the deceased herself are paramount.

Court also takes cognizance of the matter that the seat of governance being at Lucknow and the High Police Officials posted in the office of Director General of Police, U.P. at Lucknow justified the cremation at night.

In view of the above, Court directed the Senior Registrar of this Court at Lucknow to register a suo moto Public Interest Litigation with the title In Re: Right to decent and dignified last rites/cremation” and place it before the appropriate Bench having jurisdiction to hear Public Interest Litigations.

Court-appointed Senior Advocate, Jaideep Narain Mathur and Abhinav Bhattacharya Advocate as Amicus Curiae.

State Authorities are directed to ensure that no coercion, influence or pressure is exerted upon the family members of the deceased in any manner, by anyone.

Family members of the deceased victim i.e. the father, the mother, brothers and sisters shall be present before this Court so that this Court ascertains the facts and their version of the incidents which took place at the time of the cremation.

Matter has been listed on 12-10-2020. [Decided on 01-10-2020]

Allahabad High Court_Hathras-Rape-Case

Hot Off The PressNews

Press Council of India Chairman Justice Shri C.K. Prasad has noted with concern attack on house of Prasantha Charkavarti senior journalist/General Secretary of Tripura Union of Working Journalists.

While taking suo-motu cognizance of the case, Notice for Comments have been issued to the Chief Secretary, the Home Secretary and the DGP, Tripura in the matter.

Press Council of India

[Press Release dt. 13-07-2020]

Case BriefsHigh Courts

Madras High Court: A Division Bench of P.N. Prakash and B. Pugalendhi, JJ. had directed the Judicial Magistrate (I), Kovilpatti, to go to Sathankulam for conducting enquiry into the custodial deaths of a father-son duo. The Madurai Bench of the Madras High Court has taken suo motu cognizance of the act.

The incident

Jayaraj and his son Bennicks were taken into custody by the police and brought to Sathankulam Police Station, Tuticorin, for allegedly they had not closed their mobile shop even after the permitted time and thereby violated general prohibitory orders passed during the COVID-19 lockdown period. In the status report filed by the Superintendent of Police, Tuticorin, it has been further reported that when the Beat Police Officer asked the now deceased prisoners to close the shop, they abused the police constables, prevented them from discharging their official duty and threatened them with dire consequences. This status report was filed by the SP, Tuticorin, pursuant to the directions of the High Court in its earlier order dated 24th June 2020.

The said incident happened on 19th June. The deceased father-son were brought to the police station the same night. They were produced before the Judicial Magistrate, Santhankulam, the next day, i.e. 20th June, and remanded to custody at the Sub-Jail, Kovilpatti. On 22nd June, Bennicks was admitted to the Government Hospital, Kovilpatti, at 7:45 p.m., and Jeyaraj at 10:30 p.m. While undergoing treatment, Bennicks expired on the night of 22nd June at 9 p.m. and Jeyaraj expired in the morning of 23rd June at 5:40 a.m. Two FIRs into the said incident have been registered at the Kovilpatti East Police Station. On this account, the Judicial Magistrate (I), Kovilpatti, assumed charge to conduct enquiry under Section 176(1)(1-A) CrPC. As directed by the High Court in its previous order, the post-mortem was done at the Government Hospital, Tirunelveli, by a panel of three experts in the presence of the Judicial Magistrate (I), Kovilpatti. The post-mortem was also videographed. 

Directions

Having regard to the said facts, the Court noted that in this charged and tensed atmosphere, the Judicial Magistrate (I), Kovilpatti, would not have been in a position to examine the family members of the deceased as they would have been under untold stress. Sathankulam is about 100 kms from Kovilpatti. Therefore, to serve the interests of justice, the following directions were issued:

(a) The Judicial Magistrate (I), Kovilpatti, may go to Sathankulam for conducting the enquiry, so that the witnesses will be in a position to appear before him and their statements can be recorded.

(b) The Judicial Magistrate is also at liberty to visit the family members of the deceased for the purpose of recording the statements of the womenfolk, who may not be in a position to come out, as they will be in the period of mourning.

(c) The Judicial Magistrate may also conduct local inspection under Section 310 CrPC, visit the Sathankulam Police Station and take photocopies of all the records relating to Sathankulam PS Cr. No. 312 of 2020, including the Case Diary in Sathankulam PS Cr. No. 312 of 2020 and the Station General Diary. He may also record the statements of the policemen in the Sathankulam Police Station itself, so that he may get an idea as to where all the deceased were kept during their detention.

(d) The Judicial Magistrate shall also take a photocopy of the case diary in Sathankulam PS Cr. No. 312 of 2020 and the original case diary shall be handed over to the Chief Judicial Magistrate, Tuticorin, for safe custody.

(e) The Judicial Magistrate may also visit the place of occurrence in Cr. No. 312 of 2020 for better appreciation of the facts and may also take videographs of the place of occurrence wherever he finds it necessary.

(f) The Judicial Magistrate may use the Sathankulam Court premises as camp office for conducting the enquiry and the staff members of the Sathankulam Court premises shall be at his disposal, till the enquiry is completed.

(g) The Judicial Magistrate may visit the Sub-Jail, Kovilpatti, and take photocopies of all the records, including the admission register and other medical records, duly attested by the Superintendent of the Sub-Jail.

(h) The Judicial Magistrate shall also collect the CCTV footages wherever they are available and have them preserved.

(i) The Tuticorin district administration shall provide all necessary facilities and protection to the Judicial Magistrate thereby enabling him to discharge his functions.        

The aforesaid directions issued by the Court are primarily in the nature of guidance to the Magistrate for him to follow. The Court made it clear that by issuing the aforesaid slew of directions, it is not interfering with the manner in which the Judicial Magistrate should conduct the enquiry and the Court left it open to his discretion to understand the ground reality and act accordingly.

The Court said that it earnestly hope and trust that the family members of the deceased, local Bar, fourth estate, public, political parties and NGOs would provide a congenial atmosphere for the Magistrate to conduct the enquiry, so that ultimately, justice is done to the parties.

Until further orders, two cases filed pursuant to the FIRs in the death of Jeyaraj and Bennicks will be dealt with by the Deputy Superintendent of Police, Kovilpatti Range.

The Principal District Judge, Tuticorin, is also personally monitoring the case and is briefing the High Court from time to time in this regard.

Pursuant to the observation made by the Court in the earlier order dated 24th June 2020, the Director General of Police, Chennai-4, has issued a circular memorandum dated 25th June 2020, setting out the Standard Operating Procedure for dealing with persons who violate the lockdown regulations. The High Court took on record the said Circular Memorandum and placed on record our appreciation to the Director General of Police for the efforts taken in this regard. However, it was made clear that the Standard Operating Procedure should not remain on paper alone, but, should be implemented in spirit as well. In this regard, it was suggested that the Police Department engage the services of counsellors and NGOs for providing counselling to the police personnel and their family members during this testing period.

The matter is posted for 30th June 2020. [High Court of Madras v. State of T.N., 2020 SCC OnLine Mad 1249 , dated 26-6-2020]

Hot Off The PressNews

The National Human Rights Commission has taken suo motu cognizance of a media report that a journalist was allegedly killed by sand mafias in the Unnao district of Uttar Pradesh on the 19th June, 2020. Reportedly, the victim Shubham Tripathy was working as a correspondent with a Hindi Daily, Kampu Mail. He had been reporting about illegal sand mining in the district and had apprehended threat to his life from them. Reportedly, his opponents had also lodged a complaint against him with the District Magistrate.

The Commission has issued a notice to the Government of Uttar Pradesh through its Chief Secretary and the Director General of Police calling for a detailed report in the matter. The State Government has also been directed to get an impartial enquiry into the matter by an independent agency, preferably the State CB CID and to ensure safety of the family of the victim and the witnesses in the matter. The call details and other forensic evidences gathered during inquiry to be preserved as the Commission might call them during consideration of the case. The response is expected, within 4 weeks.

The Commission has observed that the news report has mentioned that in many cases the media persons have been targeted by the anti-social elements and in most of the cases no action against the culprits has been taken by the police authorities.

In the democratic system of Government, the media is considered as its fourth pillar which cannot be allowed to be victimised by the anti social elements in such a cruel manner. It is the duty of the state to provide adequate safety and security to the media persons who in the public interest, keep taking great risks to highlight the illegal activities prevailing in the society. The death of Shubham Tripathy in this case is a matter of concern for the Commission and also an issue involving violation of human rights.

National Human Rights Commission

Press Release dt. 26-06-2020

Hot Off The PressNews

Threat to terminate services of journalists associated with daily newspaper Hindu

The Press Council of India Chairman Justice C.K. Prasad has noted with concern that a large number of journalists associated with the daily newspaper Hindu and working at the Mumbai Bureau have been asked to resign from their position.

It has come to the notice that the management of the newspaper is not taking recourse to the terms and conditions by which they are governed and the terms and conditions of their appointment excluded the application of the Industrial Disputes Act, 1947 for redressal of their grievances rendering them remediless.

While taking Suo-Motu cognizance of the case, comments have been called for from the Editor, Hindu and Regional General Manager Hindu, Mumbai in this regard.

Press Council of India

[Press Release dt. 22-06-2020]

Hot Off The PressNews

Taking note of provisions regarding “Fake News” mentioned in the Media Policy 2020 whereby Government of Jammu and Kashmir authorises its officers to decide the content of print, electronic and other forms of media for “fake news” and proceed against journalists and media organisations, the Press Council of India has moved suo motu as the matter affects the functioning of the press.

Comments in the stated matter have been called from the Chief Secretary the Government of Jammu and Kashmir and Secretary, Information Department, Department of Information and Public Relations, Government of Jammu and Kashmir.

PRESS RELEASE

Press Council of India

Press Release dt. 16-06-2020

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Division Bench of Sanjay Karol, CJ and S. Kumar, J. Took suo motu cognizance of a new article of the newspaper Times of India dated 28th May, 2020 wherein an item reads as “Video of a child trying to wake up his dead mother goes viral.”

Justice S. Kumar invited attention of Chief Justice of the Court to a news paper article wherein the portion talks about a “Video of Child trying to wake up his dead mother goes viral.”

a video of a toddler trying to wake up his dead mother lying on a railway platform has gone viral on social media. The child can be seen removing a shawl covering his mother’s body.

Bench stated if the items as stated in the news report are correct of which it has no reason to disbelieve. This warrants intervention in exercise of jurisdiction under Article 226 of the Constitution of India, taking suo motu cognizance of the said news item.

Bench laid the following issues for immediate attention:

  1. whether the postmortem of the dead-body was conducted ? If yes, what was the cause of death ? Did the lady actually die of hunger ?
  2. was she travelling alone with her sibling ? If not, who all were her companions,
  3. what action stands taken by the law enforcing agencies,
  4. were the relatives of the deceased informed of the incident,
  5. were the last rights of the deceased performed as per the custom, tradition and the instructions issued by the government, and
  6. Above all who is now taking care of the children/sibling(s), who unfortunately lost their mother in these times of distress.

Bench before giving any order, directed S.D. Yadav, Additional Advocate General-IX to obtain instructions on the above issues.

Sri Yadav stated that the news report is partially incorrect. Deceased was mentally unstable and had died a natural death during the course of her journey. District Administration facilitated by providing an Ambulance up to the place of destination. The orphaned child is in safe custody and guardianship of the sister of the deceased.

Further Shri Yadav stated that even though the child is safe and secure, yet he shall personally pursue the matter with the authorities who would again reach out to the family, enquiring any need of assistance.

Matter to be listed on 3rd June, 2020. [Court on its own motion on the news item published in The Times of India Dated 28th May, 2020, In Re, 2020 SCC OnLine Pat 628 , decided on 28-05-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court: A Division Bench of Jitendra Kumar Maheshwari and C. Praveen Kumar, JJ., has issued contempt notices to as many as 49 persons which include several law makers. The Court was taking suo motu cognizance of the alleged contemptuous speeches/interviews/postings by these 49 persons against some Judges of the Supreme Court, Judges of the High Court and the High Court itself.

Court received various videos and postings between 22-05-2020 to 24-05-2020. Names of several persons of whose various interviews/speeches/postings, attributing motives, caste and corrupt allegations to some of the Supreme Court, High Court Judges.

The said posts on social media disclose abusive, life threatening and intimidating words against the Judges. There is also fabrication of material with abusive, hatred and contemptuous contents to cause incitement, disaffection and ill will against the Court and Judges.

One of the footages reveals that Mr Nandigama Suresh in his live speech from YCP Office attributed motive to High Court that Chandrababu Naidu is managing High Court and also stated that Chandrababu Naidu came to know the verdict prior to the pronouncement.

Court also took notice of the reported comments made by Bapatla YSRCP MP Nandigam Suresh on its decision to order a CBI probe into a suspended doctors issue in Visakhapatnam.

Thus in view of the above, Suo Motu Contempt Case was filed.

Order of the Court

Bench noted that the comments made in the media posts and video clippings are wholly unwarranted and to scandalize or tend to scandalize the institution.

Considering the above Court issued Rule Nisi to the respondents/contemnors, who can be identified from the posts.

Matter to be listed after 4 weeks. [Nandigam Suresh, In re.,  2020 SCC OnLine AP 141 , decided on 26-05-2020]

Hot Off The PressNews

The Press Council of India is distressed to know about the alleged attack on Mr Arnab Goswami purportedly for his views as journalist.

Every citizen in the Country including a journalist has the right to express their opinion which may not be palatable to many but this does not give any body the authority to strangulate such voice.

Violence is not the answer even against bad journalism.

The Council condemns this attack and expects from the State Government to apprehend the perpetrators of crime and they be brought to justice immediately.

While taking suo motu cognizance in the matter, Hon’ble Chairman has directed the Government of Maharashtra, through the Chief Secretary and Commissioner of Police, Mumbai to submit a report on the facts of the case at the earliest.

[Press Council of India]

PR/12/2020-PCI

[Press Release dt. 23-04-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J. took suo motu cognizance of issue regarding suspected defilement of river Periyar.

Bench stated that pollution of River Periyar can cause extremely deleterious consequences to the State of Kerala — it being one of the largest discharge potential, providing water to major towns and cities.

Thus, in view of the above, Court deemed it fit to register the present suo motu writ petition.

Notice issued to respondents.

Additional Advocate General instructed by Government Pleader affirmed that there have been some reports regarding the widespread pollution to the river but a final call on the said matter can be taken only after proper scrutiny.

Standing Counsel for the Pollution Control Board sought a couple of days time to respond to the present matter, to which the Bench deemed it apodictic to remind the Pollution Control Board that,

the present matter is a matter of great urgency, which can brook no delay and that they must act upto speed on this perilous problem, without any waste of time.

Matter to be listed on 24-04-2020. [Suo Motu v. State of Kerala, Suo Motu WP (C) No. 9500 of 2020, decided on 21-04-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsCOVID 19High Courts

Jammu & Kashmir High Court: A Division Bench of Gita Mittal, CJ and Rajnesh Oswal, J. took suo motu cognizance of increasing domestic violence cases against women during COVID-19 lockdown and suggested measures to handle the situation. The Court also passed direction upon the Government and various authorities. The matter was directed to be listed as a writ petition in public interest (PIL).

“Even at the best of the time, women and girls face tremendous barriers in accessing means to meet for help and securing justice. Illiteracy, financial incapacity; ignorance of available assistance; family and societal barriers; fear of formal institutions like police; insufficient legal aid; lack of information, etc impede women and girls from accessing resources against domestic violence being faced by them.”

Observing that unfortunately all crises disproportionately impact women, the High Court noted that globally, while the pandemic is having a tremendous negative impact on societies and economies, the adverse social and economic consequences of the pandemic for women and girls are devastating. As the lockdown is implemented, societies as a whole are having reduced access to resources. There is increase in stress due to loss of jobs and strained finances. Lack of income, unemployment, insecurity about the future or the fate of children creates tensions amongst the adults leading to abuse of all kinds. This is exaggerated in families with prior histories of such behaviour. Women and children are found to be specially vulnerable to such domestic violence which has seen a worldwide spike.

“… the biggest obstacle to a woman seeking assistance against abuse and domestic violence is the fact she has to go against intimate domestic partners or her own family members.”

Looking at the stats, the latest data released by National Commission for Women, within a week after the lockdown began on March 24, a total of 257 complaints relating to crime against women, have been received by its Complaint and Investigation Cell. This data, shows a steep rise during the lockdown, compared with the figures available for the week between March 2-8, that stands at a total of 116 complaints. The cases of domestic violence, specially, rose to 69 from 30.

“The lack of enforcement as well as alternative source of residence also impedes women filing complaints with officials or the police. There is also a huge trust deficit.”

It was noted that one factor in the mode of lodging a complaint, which has been noticed in India, is the inability of women and children from the economic weaker sections of the Indian society to accessing online platforms for assistance. Any measure for assistance to victims of domestic violence must provide for women and children from this group.

Judicial notice was taken of the fact that plight of victims of domestic violence in the UTs of J&K and Ladakh must be no different as that of similarly placed victims in other jurisdictions. It was held that to ensure adequate means and tools to address domestic violence to victims in these two Union Territories, women’s leadership and adequate contributions must also be at the heart of the COVID-19 planning and implementation measures.

Adverting to the Protection of Women from Domestic Violence Act, 2005: the statutory mechanism in existence for protection of rights of women who are victims of violence of any kind occurring within the family, the Court stated that a duty is cast upon the Government under Section 11(a) to take all measures to give wide publicity to the provisions of the law through public media including the electronic and the print media.

Considering gravity of the situation, the High Court suggested following measures to grant immediate assistance:

(i) Creation of dedicated funding to address issues of violence against women and girls as part of the COVID-19 response by the Union Territories of the Jammu and Kashmir and Ladakh.

(ii) Increased availability of call-in services to facilitate discreet reporting of abuse.

(iii) Increased tele/online legal and counselling service for women and girls.

(iv) Designated informal safe spaces for women, say grocery stores and pharmacies, where they can report domestic violence/abuse without alerting the perpetrators.

(v) Immediate designation of safe spaces (say for instance empty hotels/education institutions etc.) as shelters for women who are compelled to leave their domestic situation. These shelters must be treated as accessible shelters.

(vi) Giving urgent publicity to information regarding all of the above measures as also the availability of the facilities for seeking relief and redressal against the issues of domestic violence.

(vii) Increasing awareness campaigns on all aspects of the issues.   

The Court also passed certain directions on various authorities:

(a) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will submit a report informing about the steps taken regarding domestic or any other kind of violence being faced by the women on account of the implementation of the COVID-19 lockdown.

(b) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will examine suggestions given by the Court as enlisted above as also the innovative measures taken by countries world over and the spotlight initiative taken up by the United Nations. The said authorities will take a view regarding requirements and steps to be taken to mitigate the sufferings of the victims of domestic violence in the Union Territories.

(c) A report of measures in place, steps underway, and those contemplated, be placed before the Court before 28th April, 2020, the next date of hearing.

(d) The Secretaries of the J&K Legal Services Authority shall call for list of all cases involving cases of domestic violence which are pending as complaints with the police stations in the Union Territories or in the courts and ascertain the safety and well being of the complainants. 

(e) All the courts in the UTs of J&K and Ladakh shall treat cases of domestic abuse as urgent and proceed with the matters in accordance with the Circulars issued regarding the procedure to be followed ensuring social distancing.

Advocate Monika Kohli is appointed as an amicus curiae and the matter has been directed to be listed next on 28th April, 2020 for further consideration. [Court on its own Motion v. UTs of J&K and Ladakh, WP(C) PIL No. (unnumbered) of 2020, dated 16-4-2020]

Case BriefsSupreme Court

Supreme Court: Taking suo motu cognizance of the issue relating to the expeditious trial of cases under Section 138 of Negotiable Instruments Act, 1881, the bench of SA Bobde, CJ and L. Nageswara Rao, J has issued notice to the Union of India through Law Secretary, Registrar General of all the High Courts, the Director General of Police of all the States and Union Territories, Member Secretary of the National Legal Services Authority, Reserve Bank of India and Indian Bank Association, Mumbai as the representatives of Banking institutions.

The said action of the Court came after noticing that despite many changes brought through legislative amendments and various Supreme Court decisions mandating speedy trial and disposal of these cases, the Trial Courts are filled with large number of pendency of these cases. A recent study of the pending cases, reflects pendency of more than 35 lakh, which constitutes more than 15 percent of the total criminal cases pending in the District Courts.

Here’s is what the Court suggested whule posting the matter on April 16, 2020 for further hearing:

  • there is a need to evolve a system of service/execution of process issued by the court and ensuring the presence of the accused, with the concerted efforts of all the stakeholders like Complainant, Police and Banks.
  • an information sharing mechanism may be developed where the banks share all the requisite details available of the accused, who is the account holder, with the complainant and the police for the purpose of execution of process. This may include a requirement to print relevant information, viz the email id, registered mobile number and permanent address of the account holder, on the cheque or dishonour memo informing the holder about the dishonour.
  • RBI, being the regulatory body may also evolve guidelines for banks to facilitate requisite information for the trial of these cases and such other matters as may be required.
  • a separate software-based mechanism may be developed to track and ensure the service of process on the accused in cases relating to an offence under Section 138 of N.I. Act.
  • RBI may consider developing a new proforma of cheques so as to include the purpose of payment, along with other informations mentioned above to facilitate adjudication of real issues.
  • a mechanism may be developed to ensure the presence of the accused even by way of coercive measure, if required, taking effect from Section 83 of Cr.P.C. which allows attachment of property, including movable property.
  • an effort may be evolved to recover interim compensation under Section 143A of the N.I. Act as well as fine or compensation to be recovered as per Section 421 of Cr.P.C.
  • National Legal Services Authority, being the responsible Authority in this regard, may evolve a scheme for settlement of dispute relating to cheque bounce at pre-litigation i.e. before filing of the private complaint. An Award passed at the pre-litigation stage or pre-cognizance stage shall have an effect of a civil decree.

“This measure of prelitigation ADR process can go a long way in settling the cases before they come to Court, thereby reducing docket burden.”

  • High Courts may also consider setting up of exclusive courts to deal with matters relating to Section 138, especially in establishments where the pendency is above a standard figure. Special norms for assessment of the work of exclusive courts may also be formulated giving additional weightage to disposal of case within the time-frame as per legal requirement.

The Court appointed Senior Advocate Siddharth Luthra as Amicus Curiae and Advocate K. Parameshwar to assist the amicus curiae in the matter.

[In Re: Expeditious trial of cases under Section 138 of N.I. Act, 1881, Suo Moto Writ Petition (Criminal), arising out of SPECIAL LEAVE PETITION (CRIMINAL) NO. 5464 OF 2016, order dated 05.03.2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has taken suo motu cognizance of media reports that in Muzaffarpur district of Bihar, a person tried to outrage the modesty of a woman and when he was not successful, he poured kerosene on her and put her on fire.

The victim woman has suffered 85 per cent burn injuries and has been admitted in the SKMCH Hospital where her condition is critical. Reportedly, the victim’s family had approached the police five times for registarion of an FIR but no acrtion was taken but neither an FIR was registered by the police nor any action was taken against the accused.

The Commission has observed that the contents of the news reports, if true, amount to serious violation of human rights of the victim. Accordingly, it has issued notices to the Chief Secretary and the Director General of Police, Bihar calling for a detailed report in the matter within four weeks. The Commission would also like to know about the status of the investigation and treatment of the victim woman, who is reportedly in a state of coma at SKMCH Hospital in Muzaffarpur. The report must include whether any departmental action has been taken against the guilty police officials and whether any relief has been granted to the victim/ family.

According to the media reports, the accused who allegedly assaulted the victim has also sustained burn injuries in his hand. The accused, as mentioned in the news report was harassing the victim for the last three years for which the family of the woman had approached the Ahiyapur police station five times, to get an FIR registered but no FIR was registered by the police. Now, reportedly, the police is making efforts to arrest him.

National Human Rights Commission

[Press Release dt. 09-12-2019]

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of Justice Adarsh Kumar Goel (Chairperson) and Justice Raghuvendra S. Rathore, Justice S.P. Wangdi, Justice K. Ramakrishnan (Judicial Members); Dr Satyawan Sigh Garbyal, Dr Nagin Nanda and Saibal Dasgupta (Expert Members), took cognizance of air quality in Delhi.

Tribunal noted the report in some of the newspaper’s:

‘The Hindu’, the matter is reported under the heading ‘Delhi Chokes as air pollution levels hit a three-year high’.

‘Indian Express’, It is reported under the heading ‘Capital air crosses severe level, PMO steps in, Centre to monitor.

‘Times of India’, It is reported under the heading ‘Atmosfear: Delhi Victim of Sick Choke, Capital a Gas Chamber After Light Drizzle.

In the Hindustan Times, the heading is ‘Capital Punishment- Bhopal Gas tragedy occurred once and it has been dealt with, but this gas tragedy is occurringevery year and is not properly dealt with.

Further, Tribunal stated that, to provide efefctive access to judicial remedies for enforcement of right to healthy environment which is part of Right to Life under Article 21.

Supreme Court has issued directions in various matters. This Tribunal has also dealt with the issue in several cases including the matter dealing with 122 ‘non-attainment cities’ in the Country where the air quality is beyond prescribed norms and on the subject preventing ‘crop residue burning.

“Air pollution is source of diseases and threat to life.”

Tribunal adding to the above, stated that the present situation of severe air pollution “is not creation of one day. It is continuous negligence and apathy of statutory authorities in enforcing the law. While remedial action may continue to be taken in the best possible manner, there is urgent need to have proper planning to address the gaps in existing enforcement strategies and existing undesirable situation.”

The Bench further held that after interaction with the Chairman and Member Secretary of CPCB who have presented detailed analysis of the situation, tribunal found it necessary to further examine the matter after looking into the status of implementation of GRAP and other measures including preventive strategies currently adopted. [Air Quality Deterioration In And Around Delhi as reported in Print and Electronic Media, In Re, O.A No. 1008 of 2019, decided on 04-11-2019]

Hot Off The PressNews

Press Council of India (PCI) Chairman Justice Chandramauli Kumar Prasad expressed grave concern over the order issued by the Government of Andhra Pradesh dated 30-10-2019 granting permission to the Secretaries of respective Departments to initiate legal action with regard to the publication of false, baseless and defamatory news items against the print media through the public prosecutor.

The Chairman is of the view that the threat to prosecute media personnel, in general, shall demoralise the journalists in large which shall have a severe bearing on the freedom o the press. Not only this the problems which the order in question seeks to redress can very well be remedied by The Council itself.

While taking Suo-Motu cognizance of the issue, the Chairman has directed the Government of Andhra Pradesh through its Chief Secretary and Special Commissioner (I&PR)  to file a reply statement in this matter.

[Press Release dt. 01-11-2019]

Press Council of India

Hot Off The PressNews

The National Human Rights Commission, NHRC has taken suo motu cognizance of a media report supported with photograph that as many as 20 persons including the Civic Agency staff and the lawyers received head injuries in the alleged police action in Howrah, West Bengal on the 24th April, 2019. Reportedly, demanding action against the police personnel, the Bar Council of West Bengal observed black day throughout the State today and has resolved to cease the work till April 29th in solidarity with the lawyers of Howrah. According to media reports, the incident happened following the lawyers’ faceoff with the Howrah Municipal Corporation staff over parking.

The Commission has issued a notice to the Director General of Police, West Bengal calling for a detailed report in the matter, within four weeks including action taken against the delinquent police personnel and health status of the victims.

It has observed that the contents of the news report, if true, raise the serious issue of violation of human rights of the victims, who have sustained injuries in the incident. Apparently, the police personnel did not deal with the situation in a proper manner which resulted in humiliation and physical injuries to the victims.

According to the media report that the incident was triggered after and the elderly lawyer was turned away by the Guard of the civic headquarters on Mahatma Gandhi Road in Howrah when he tried to park his vehicle in the civic agency’s compound. Thereafter, the lawyers and the civic body staff fought for hours as many lawyers joined the protest against the guard. The civic staff, however, claimed that they were attacked first. Both sides, as mentioned in the news report, pelted stones and bricks at each other before the police intervened and chased away the lawyers.

[Dated: 26-04-2019] 

NHRC

Hot Off The PressNews

Supreme Court: The Bench of Madan B. Lokur and Deepak Gupta, JJ while seeking the status of investigation into the murder of a woman assistant town planner, who was shot dead by a hotel owner during a Supreme Court-ordered demolition drive at Kasauli in Himachal Pradesh, directed the Himachal Pradesh Government to apprise it about the steps taken to ensure that no unauthorised constructions were carried out in the entire state.

The Court also asked the state to inform it about the implementation status of it’s order regarding demolition of unauthorised constructions in 13 hotels at Kasauli.

The Bench said:

“The death is not a result of the court’s order. It is a result of the non-implementation of the law. The incident is very unfortunate. You have to ensure rule of law and implementation of law related to unauthorised constructions.”

The Court had, on April 17, directed the state government to demolish unauthorised structures in several hotels and guest houses in Kasauli and Dharampur areas of Solan and four teams were constituted by the authorities to carry out the work. Assistant Town and Country Planner Shail Bala Sharma had on May 1 gone to supervise the demolition of unauthorised construction at Kasauli’s Narayani Guest House where its owner Vijay Singh allegedly shot at her. She later succumbed to injuries. The Court had, on 02.05.2018, taken suo motu cognizance in the matter.

The State has to file an affidavit giving details by the next date of hearing i.e. May 9, 2018.

Source: PTI

Hot Off The PressNews

Supreme Court: The bench of Madan B. Lokur and Deepka Gupta, JJ took suo motu cognizance  of the murder of a woman assistant town planner, who was shot dead by a hotel owner during a Supreme Court-ordered demolition drive at Kasauli in Himachal Pradesh. Expressing shock over the death of Shailbala Sharma on Tuesday, the Court said that this is a serious issue in which a government official has been killed for doing her duty in compliance with the order of the highest court.

The Court had, on April 17 ordered the demolition of illegal constructions at several hotels and resorts in the picturesque Himachal Pradesh town of Kasauli, saying the life of people cannot be endangered for making money. It had observed that the illegal constructions had put the entire city in danger, causing landslides, and ordered the demolition of such constructions. Giving ultimatum to the hotel owners, the Court had said:

“Either you demolish it or we will ask the authorities to demolish it. It is your choice. No instructions are needed. Let the authorities demolish it.”

The Court is likely to hear the matter on 03.05.2018.

Source: The Hindu