Appointments & TransfersNews

President appoints the following Four Judges of the High Courts as Judges of the Supreme Court of India:

  • Shri Justice Krishna Murari, Chief Justice of the Punjab and Haryana High Court
  • Shri Justice Shripathi Ravindra Bhat, Chief Justice of the Rajasthan High Court
  • Shri Justice V. Ramasubramanian, Chief Justice of the Himachal Pradesh High Court
  • Shri Justice Hrishikesh Roy, Chief Justice of the Kerala High Court


    Ministry of Law and Justice

    [Notification dt. 18-09-2019]

Hot Off The PressNews

STATEMENT

Certain reports relating to recommendations recently made by the Collegium regarding transfer of Chief Justices/Judges of the High Courts have appeared in the media.

As directed, it is stated that each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same.

Further each of the recommendations was made after full and complete deliberations and the same were unanimously agreed upon by the Collegium.


Supreme Court of India

Hot Off The PressNews

The In-House committee, headed by Justice SA Bobde, also comprising Justices Indira Banerjee and Indu Malhotra, found “no substance” in the sexual harassment allegations levelled by a former Supreme Court employee against the CJI Ranjan Gogoi.

The notice published on Supreme Court website read that the report has been submitted to the next senior judge competent to received the report i.e. Justice Arun Mishra. A copy of the report has also been handed over to the Chief Justice. It also stated that according to the verdict in Indira Jaising v. Supreme Court of India, (2003) 5 SCC 494, the report of any Committee constituted as a part of in-house procedure can’t be made public.

The former employee had submitted her complaint against the CJI in an affidavit form to 22 Supreme Court judges on April 19.


Also Read: 

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Justice AK Patnaik to look into ‘conspiracy’ angle

Case BriefsSupreme Court (Monthly Roundup)

TOP STORIES


Ayodhya Dispute to be settled by a ‘confidential’ Court monitored mediation; No Gag order passed

A 5-judge bench referred the Ram Janmabhoomi-Babri Masjid land dispute case, famously known as the Ayodhya Dispute, to a Court-monitored Mediation Panel of Justice Fakkir Mohamed Ibrahim Kalifulla, Former Judge, Supreme Court of India (Chairman), Sri Sri Ravi Shankar and Shri Sriram Panchu, Senior Advocate (Members).

Clauses stipulating ‘deposit-at-call’ before invoking arbitration defeats the purpose of ADR process

Deterring a party to an arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, contrary to the object of de-clogging the Court system, and would render the arbitral process ineffective and expensive.

IPL spot-fixing: SC sets aside life ban imposed on Sreesanth by BCCI

The disciplinary committee is not obliged to award a life time ban in all cases where such offences are proved. When range of ineligibility which is minimum five years, maximum life time ban is provided for, the discretion to which, either minimum or maximum or in between has to be exercised on relevant facts and circumstances.

Saravana Bhavan owner P Rajagopal guilty of murdering his employee in 2001

The Court upheld the conviction and sentence of life imposed upon Saravana Bhavan Owner P Rajagopal by the Madras High Court for the abduction and murder of his employee Santhakumar.

Mathews Nedumpara barred from practicing in SC for one year

The Court noticed that it was not the first time that Mathews Nedumpara has attempted to browbeat and insult Judges of the Court. In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive.

No stipulation of period of completion of Serious Fraud Investigations under Companies Act

Section 212 of the Companies Act, 2013 does not prescribe any period within which a report has to be submitted by Serious Fraud Investigation Office (SFIO) to the Central Government.

MORE STORIES


Integrated Nodal Agency for all Tribunals: 5-judge SC bench seeks Centre’s view

A 5-judge bench sought to know from the Centre within two weeks its view on bringing all the quasi-judicial bodies under one central umbrella body. The Court said it would not like to be bogged down with what is right or wrong and all it wants is that “the tribunals work efficiently and independently”.

SC asks Centre to set up Motor Accidents Mediation Authority if feasible

The Government may examine the feasibility of setting up Motor Accidents Mediation Authority by making necessary amendments in the Motor Vehicles Act. The Court also asked the Government to consider the feasibility of enacting Indian Mediation Act to take care of various aspects of mediation in general.

SC ‘fixes’ it’s January 7 verdict; Teachers can now claim gratuity under Payment of Gratuity Act

The law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association was no longer applicable against the teachers, as if not rendered, and the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.

UPSC can recommend Officers having atleast 6 months tenure left for post of Director General of Police

The recommendation for appointment to the post of Director General of Police by the Union Public Service Commission and preparation of panel should be purely on the basis of merit from officers who have a minimum residual tenure of six months i.e. officers who have at least six months of service prior to the retirement.

Motilal Pesticides overruled as it missed the difference in the terms ‘Income’ and ‘Gross Total Income’

Reading of Section 80HH along with Section 80A would clearly signify that such a deduction has to be of gross profits and gains, i.e., before computing the income as specified in Sections 30 to 43D of  the Income Tax Act, 1961. The scheme itself draws distinction between the concept ‘income’ on the one hand and ‘profits and gains’ on the other hand.

There cannot be a uniform qualification/disqualification for the Board of Directors under the Banking Companies Act

The Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director.

Can High Court quash proceedings for offences under Section 307 IPC? Here’s what SC said

Offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves.

SC acquits 6 falsely implicated death row convicts in a 16 year old crime; orders reinvestigation

The accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers. The benefit of the lapse in investigation and/or unfair investigation cannot be permitted to go to the persons who are real culprits and in fact who committed the offence.

SC elaborates on the scheme of determining additional purchase price under Clause 5A under Sugarcane Control Order, 1966

The entire amount of difference between the Statutory Minimum Price (SMP) and State Advisory Price (SAP) per se cannot be said to be an appropriation of profit. to the extent of the component of profit which will be a part of the final determination of the SAP and/or the final price/additional purchase price fixed under Clause 5A of the Sugarcane Control Order, 1966 would certainly be and/or said to be an appropriation of profit.

SC awards Rs. 10 Lakh compensation in a medical negligence case to ‘send message’ to medical practitioners

In a case of medical negligence where a minor surgery resulted in amputating a woman’s arm, the Court awarded Rs. 10 Lakhs towards compensation, over and above the amount awarded by the Himachal Pradesh State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission.

Revisionary Court shouldn’t act like an Appellate Court

While considering the case of discharge sought immediately after the charge­sheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses.

SC commutes death sentence of a man who raped and killed a 5-year-old to 25 years’ imprisonment

Life imprisonment is the rule to which the death penalty is the exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment, having regard to the relevant facts and circumstances of the crime.

SC yet again reminds the High Courts of the limitations under Section 100 CPC

Despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.

Can’t summon additional accused under Section 319 CrPC in the absence of strong and cogent evidence

Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code.

Environmental Clearance for development of Airport at Mopa, Goa to be revisited

The EAC has not applied its mind at all to the environmental concerns raised in relation to the project nor do its reasons indicate an appraisal of those concerns by evaluating the impact of the project. Hence, the appraisal by the EAC in the present case neither the process of decision making nor the decision itself can pass legal muster.

Death due to malaria occasioned by a mosquito bite in a malaria prone area is not an accident

To be bitten by a mosquito and be imbued with a malarial parasite does involve an element of chance. But the disease which is caused as a result of the insect bite in the natural course of events cannot be regarded as an accident. Particularly, when the disease is caused in an area which is malaria prone.

SC acquits man in an 18-year-old rape case

Noticing that there was no evidence adduced by the prosecution to prove the commission of the offence of rape by the appellant on the prosecutrix and the evidence adduced was not sufficient to prove the case of rape against the appellant, Court set the accused free.

SC explains meaning of “total turnover” under the Karnataka Sales Tax Act

The expression “total turnover” and “turnover” which has been used under Section 6­B has the same meaning as defined under Section 2(1)(u­2) and 2(v) of the Act. Under Section 6­B, reference is made on ‘total turnover’ and not the ‘turnover’ as defined under Section 2(v) of the KST Act and taking note of the exemption provided under first proviso clause(iii), exclusion has been made in reference to use of sale or purchase of goods in the course of inter­state trade or commerce.

IN OTHER NEWS


Case BriefsHigh Courts

Delhi High Court: A Bench of Rajendra Menon, CJ and V. Kameswar Rao, J., dismissed a petition wherein Mathews J. Nedumpara, Advocate and others sought, inter alia, to disqualify Senior Advocate Fali S. Nariman from appearing in the Supreme Court.

The petitioners made certain prayers including:

declare that respondent No 1, the living legend, is disqualified from appearing in the Supreme Court where his illustrious son, Hon’ble Mr Justice Rohinton F. Nariman, is a sitting Judge, fo, the Supreme Court means the entire Courts as an institution and the petitions which he (respondent 1) vets captioned as “To The Hon’ble the Chief Justice and his companionJustices of the Hon’ble Supreme Court of India come up before his illustrious son, Hon’ble Mr Justice Rohinton F. Nariman.”

The petitioners contended that the Explanation to Rule 6 of the Bar Council of India Rules, 1971 negates the concept of nemo debet esse judex in propria causa (nobody shall be a judge in his own cause).

As for the relevant purpose, Rule 6 bars an advocate from practicing in any way before a Court where any of his relation mentioned therein is a Judge of the Court. However, Explanation thereto makes it clear that the word “Court” does not mean the entire Court but only refers to a particular Court where relative of a lawyer is a Presiding Judge.

According to Mr Nedumpara, a declaration should be given to bring within the ambit of the word “Court” the entire Court where the relative of the advocate is a Judge.

The High Court was of the considered view that the law does not permit it to make such a declaration. It was stated, “If the provisions of Rule 6 and the Explanation contained thereto as appearing in the statutory rules are taken note of, it clearly explains the ambit and import of the word ‘Court’ used therein and if the contention of the petitioner is to be accepted, we would be rewriting the statute in a manner which would run contrary to the legislative intent and this, in our considered view, is not permissible in law”. That being the legal position, the Court saw no reason to make any indulgence into the matter. Resultantly, the writ petition was dismissed. [Mathews J. Nedumpara v. Fali S. Nariman, 2019 SCC OnLine Del 7529, dated 6-03-2019]

Appointments & TransfersNews

As reported by media, Justice Brett Kavanaugh was announced as the second Supreme Court of the United States judge by Donald Trump.

Trump had shortlisted down four nominees consisting of Brett Kavanaugh, Amy Coney Barrett, Thomas Hardiman, and Raymond Kethledge JJ., amongst whom Justice Brett Kavanaugh was Donal Trump’s final nomination.

Justice Brett Kavanaugh is to succeed Justice Anthony Kennedy on his retirement on July 31st, 2018.

[Source: CNN]

Hot Off The PressNews

Supreme Court of Bangladesh: The Supreme Court of Bangladesh on 26 June 2018 upheld a High Court order that granted bail to Bangladesh Nationalist Party (BNP) Chairperson and former Prime Minister Khaleda Zia in a case filed under the Special Powers Act over the arson attack in Cumilla on February 3, 2015.

A four-member Bench of the Appellate Division headed by Chief Justice Syed Mahmud Hossain passed the order. The SC also ordered to dispose the maintainability of the petition within seven days. On May 28, the HC granted bail for six months to BNP chief Khaleda Zia in two cases filed in Cumilla. Later, the government filed a petition with the Appellate Division seeking a stay on the bail order.

Eight people were killed and 20 others injured when miscreants hurled a petrol bomb at a bus at Jogmohanpur in Chouddagram of Cumilla district during the BNP-led alliance’s movement on February 3, 2015. Two cases were filed against Khaleda in this connection. On February 8, 2018, Khaleda Zia was sent to jail after a special court sentenced her to five years’ rigorous imprisonment in the Zia Orphanage Trust graft case.

[Courtesy: Dhakatribune]

Case BriefsSupreme Court

Supreme Court: Addressing an issue of public importance relating to difficulties faced by visitors at Shri Jagannath Temple (Puri), the Bench comprising of Adarsh Kumar Goel and Ashok Bhushan, JJ., passed an interim order issuing directions for regulation and upkeep of the Temple.

The writ petition was filed by Mrinalini Padhi, a practicing advocate before the Orrisa High Court, highlighting the issues of public importance which need to be addressed and monitored so as to ensure safe custody of the valuables of the Temple; proper hassle-free worship by the devotees; and the clean and hygienic environment in the Temple. The issues put forth, also include the harassment of visitors by sevaks of the Temple. The Hon’ble Supreme Court noticed that the issues raised, involve the enforcement of fundamental right under Article 25 and directive principles under Articles 38, 49, 51A (f) and (g) of the Constitution. The Court further observed pilgrimage centers are of undoubted religious, social, historical and architectural importance, representing cultural heritage of our country. Millions of people visit these centers not only for tourism but for seeking inspiration for righteous values.

Having regard to the nature of the issue, Hon’ble Court directed the District Judge, Puri, to submit a report on factual aspects of the matter including difficulties faced by visitors and deficiency in management. Further, the Administrator was directed to review arrangement of CCTV cameras; and ensure that no direct collection of offerings is made by any sevak. The State of Odisha was directed to constitute a committee to study the management of other important shrines. Hassle free darshan by the visitors and utilization of offerings for righteous objects was considered to be of prime importance by the Hon’ble Court; hence, it was observed that the sevaks need to be compensated by legitimate remuneration as determined by the concerned Authority. Mr. Gopal Subramanium, learned Senior Counsel, was appointed as the Amicus Curiae to assist the Court. The matter is to be listed on 5-7-2018 for further consideration. [Mrinalini Padhi v. Union of India, 2018 SCC OnLine SC 602, decided on 08-06-2018]

Appointments & TransfersNews

After being criticised for refusing to clear Uttarakhand Chief Justice KM Joseph’s name for elevation to Supreme Court, Law Minister Ravi Shankar Prasad has written to CJI Dipak Misra, citing reasons for the refusal and asking the collegium to reconsider Justice KM Joseph’s elevation.

The letter states:

“the proposed appointment of Shri Justice KM Joseph as a judge of the Supreme Court at this stage does not appear to be appropriate.”

Below are the reasons given by the Centre for refusing Justice KM Joseph’s appointment as a Supreme Court judge:

  • In the All India High Court Judges’ Seniority List, Justice KM Joseph is placed at  Number 42 and there are presently 11 Chief Justices of various High Courts who are senior to him.
  • Around 10 High Courts, including the High Courts of Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu & Kashmir, Uttarakhand, Sikkim, Manipur and Meghalaya, are not represented in the Supreme Court at present.
  • Justice KM Joseph, who’s parent High Court is Kerala High Court, if elevated will be the second judge from a relatively small High Court.
  • There is no representation of Scheduled Caste/Scheduled Tribe in the Supreme Court.

The letter stated that for the aforementioned reasons, the Government has been constrained to segregate the recommendation of the Supreme Court collegium. On the question whether the Government can segregate the recommendations made by the Collegium, the letter clarified:

“such segregation of proposals has been done in many cases earlier, which include appointment of judges to various High Court and also to the Supreme Court in interest of expeditious action on appointments and filling up of vacancies.”

Background of the controversy: 

On 19.01.2018, the Supreme Court collegium, comprising of the five senior-most judges, had recommended the names of Uttarakhand Chief Justice KM Joseph and Indu Malhotra for elevation to the Supreme Court. While the Centre cleared Indu Malhotra’s name, it rejected the collegium’s recommendation regarding Justice KM Joseph. Indu Malhotra was sworn in as the 7th woman Supreme Court judge on 27.04.2018 by CJI Dipak Misra. She is the first woman lawyer to be directly appointed as a Supreme Court judge.

While the appointment of Indu Malhotra was applauded, many Senior members of the Bar urged CJI Dipak Misra to block her appointment till Justice KM Joseph’s name is cleared. Supreme Court, however, refused to give an urgent hearing to a mentioning by a group of Supreme Court Bar Association lawyers, with 100 signatures, seeking a stay on Senior Advocate Indu Malhotra’s appointment as Supreme Court judge in light of Centre’s decision to reject Justice KM Joseph’s elevation. The SCBA resolution states:

“While we stand for nomination of Ms. Indu Malhotra, Senior Advocate and one of our distinguished members, we express our deep anguish for non-inclusion of Justice KM Joseph and selective processing of files contrary to the recommendation of the Supreme Court collegium. We strongly condemn the selective approach of the Executive and call upon the Hon’ble Supreme Court to take appropriate steps to restore independence of the judiciary. “

(Click here to read the full text of the letter)

New releasesNews

Science begins with counting. To understand a phenomenon, a scientist must first describe it; to describe it objectively, he must first measure it.

– Siddhartha Mukherjee, The Emperor of All Maladies

These words, written by Mukherjee in his seminal biography of cancer, aptly characterise the principal purpose of DAKSH’s Rule of Law Project, which is to understand the justice-delivery system in India using a data-driven approach.

In 2016, DAKSH released a report, titled State of the Indian Judiciary (SoJR), in which we focused on the most visible face of the justice-delivery system in India — the judiciary. In evaluating the work of the judiciary, we considered its primary challenge — pendency in the courts — as a means to understand how delays in the progress of cases affect citizens and the economy. We also presented findings from our pioneering survey on access to justice, which recorded litigants’ perceptions of, and experiences within, the judicial system.

As we pondered on the composition of DAKSH’s second report, we decided to retain the two principal aspects of the SoJR — delays in the judicial system and access to justice — as the fulcrum of this year’s report also, but examine them both more deeply and broadly. While the SoJR explored the systemic issues of administration and accountability in the judiciary, this year’s report is an in-depth scrutiny of the performance of courts, with an emphasis on their workload, case flow, and efficiency. While the SoJR reflected on access to justice, and in particular, its institutional dimensions (mainly relating to the judiciary), this year, we consider ‘justice’ more expansively — in terms of its underlying ideas, its administration and delivery by non-judicial bodies, as well as the various approaches to it in India.

Shruti Vidyasagar and Ramya Sridhar Tirumalai in Introduction to Approaches to Justice in India (2017)

The complete report has been indexed on SCC Online here:

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi and Navin Sinha, JJ asked the Central Government to constitute Special Courts to deal with cases involving MPs and MLAs and speedy disposal of these matters after the Election Commission of India recommended life ban on politicians convicted in criminal cases. The bench asked Centre to apprise it with the details of the criminal cases lodges against politicians from 2014 till date.

The Court asked Centre to place before it details regarding 1,581 cases involving MPs and MLAs, as declared by politicians at the time of filing their nominations during the 2014 general elections and that how many of these 1,581 cases have been disposed of within one year and how many have ended either in conviction or acquittal of the accused.

Centre told the bench that decriminalisation of politics has to be done and it was not averse to the setting up of special courts to deal with cases involving politicians and that the recommendations of the Election Commission of India and the Law Commission favouring life-time disqualification of politicians convicted in criminal cases was under the active consideration of the government.
The Court, hence, asked Centre to place before it the scheme for setting up of such special courts and also indicate the amount of funds that could be earmarked for the purpose. The matter has been listed on December 13, 2017 and Centre has to do the needful within 6 weeks.
Source: ET

Case BriefsSupreme Court

Supreme Court: With the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

The Court said:

“The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

Committee for Designation of Senior Advocates

All matters relating to designation of Senior Advocates in the Supreme Court and all the High Courts of the country shall be dealt with by a Permanent Committee to be known as “Committee for Designation of Senior Advocates” headed by the Hon’ble the Chief Justice of India and consisting of two senior-most Judges of the Supreme Court of India (or High Court(s), as the case may be) and the learned Attorney General for India (Advocate General of the State in case of a High Court). The above four Members of the Permanent Committee will nominate another Member of the Bar to be the fifth Member of the Permanent Committee.

Permanent Secretariat

The said Committee shall have a permanent Secretariat the composition of which will be decided by the Chief Justice of India or the Chief Justices of the High Courts, as may be, in consultation with the other Members of the Permanent Committee. The Permanent Secretariat will:

  • Compile relevant information regarding the advocate
  • Publish the proposal of designation of a particular Advocate in the official website of the concerned Court inviting the suggestions/views of other stakeholders in the proposed designation
  • Put up the case before the Permanent Committee

Criterion for designation

The reputation, conduct, integrity of the Advocate(s) concerned including his/her participation in pro-bono work; reported judgments in which the concerned Advocate(s) had appeared; the number of such judgments for the last five years, will be considered for designating an advocate as a Senior Advocate.

Process of designation

  • The point based assessment by the Permanent Committee will be made by:
    • examining each case in the light of the data provided by the Secretariat of the Permanent Committee;
    • interviewing the concerned Advocate.
  • All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court.
  • Voting by secret ballot will not normally be resorted to by the Full Court except when unavoidable. In the event of resort to secret ballot decisions will be carried by a majority of the Judges who have chosen to exercise their preference/choice.

Review of application

All cases that have not been favourably considered by the Full Court may be reviewed/reconsidered after expiry of a period of two years following the manner indicated above as if the proposal is being considered afresh;

Recall of Designation

In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation the Full Court may review its decision to designate the concerned person and recall the same.

The present order of the Court is an outcome of the petition filed by Senior Advocate Indira Jaising, who had also served as Additional Solicitor General for the Union of India. In the petition she contended that the present system of designation of Senior Advocates in the Supreme Court of India was flawed and the system needed to be rectified and acceptable parameters laid down. [Indira Jaising v. Supreme Court of India, 2017 SCC OnLine SC 1223, decided on 12.10.2017]

Hot Off The PressNews

Supreme Court: Hearing the plea questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years, the bench of Madan B. Lokur and Deepak Gupta, JJ expressed dismay over the prevalence of the practice of child marriage despite the existence of the Child Marriage Prohibition Act and said

“It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own.”

Advocate Gaurav Agarwal, appearing for NGO Independent Thought, brought to the Court’s notice that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.

Taking note of the argument, the Court sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down.

The Centre, on the other hand, had contended that child marriage were still happening in the country due to uneven economic and educational development and it has been, therefore, decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them.

The next date of hearing on the matter is 05.09.2017.

Source: PTI

Hot Off The PressNews

Supreme Court: The 10-year-old girl, who’s plea to terminate her pregnancy was refused by the Supreme Court on 28.07.2017, will receive Rs. 10 Lakh compensation from the Chandigarh Administration as directed by the Court. The Court asked the Chandigarh administration to release Rs. 1 Lakh to the family of the girl and keep the remaining Rs. 9 Lakh in Fixed Deposit.

On 28.07.2017, the Court had held that allowing the termination of her pregnancy might be dangerous for the girl’s health, based on the medical report of the 10-year-old rape survivor who was repeatedly raped by her uncle. The Medical Board of PGI, Chandigarh said in it’s report that  it would neither be in the interest of the girl child nor the alive foetus, which is approximately 32-weeks-old, to order abortion.

Source: ANI

Hot Off The PressNews

Supreme Court: Refusing to take suo motu cognizance in the matter where over 60 children died in a Gorakhpur Hospital, the bench of JS Khehar, CJI and Dr. DY Chandrachud, J asked the advocate, who mentioned the matter before the Court, to approach the High Court instead.

In the last 7 days, over 60 children have died in the Baba Raghav Das Medical College Hospital, Gorakhpur allegedly after the disruption of oxygen supply due to non payment of bills to the oxygen cylinder provider. Many children were infants who were in the intensive care unit.

The Court said that the authorities in UP including the Chief Minister Adityanath Yogi have been handling the situation and if any action needs to be taken then the advocate should approach the Allahabad High Court. The advocate had also sought an SIT probe into the matter.

Source: ANI

Hot Off The PressNews

Putting rest to the speculation over the the appointment of the next Chief Justice of India, Centre has appointed Justice Dipak Misra as the 45th Chief Justice of India. The incumbent Chief Justice of India, Justice JS Khehar, who is set to retire on August 28, 2017, had recommended Justice Misra’s name as his successor. Justice Misra will serve as the 45th CJI till October 2, 2018.

Justice Dipak Misra was enrolled as an Advocate in 1977 and practiced in Constitutional, Civil, Criminal, Revenue, Service and Sales Tax matters in the Orissa High Court and the Service Tribunal. He was appointed as an Additional Judge of the Orissa High Court in 1996 and was transferred to the Madhya Pradesh High Court in 1997. He became a permanent Judge in December, 1997. Justice Misra assumed charge of the office of Chief Justice, Patna High Court on 23rd December, 2009 and charge of the office of the Chief Justice of Delhi High Court on 24th May, 2010. He was then elevated as Supreme Court judge on October 10, 2011.

 

Hot Off The PressNews

On 08.08.2017, the Shia Waqf Board filed an affidavit before the Supreme Court in the Ayodhya matter and said that it was fine if the Masjid was located in a Muslim dominated area at a reasonable distance from Lord Ram’s birth place i.e. Ram Janmabhoomi. In the affidavit, the Board has mentioned that since the Babri Masjid was a Shia Waqf, the Shia Waqf Baord alone is entitled to negotiate and arrive at a peaceful settlement with the stakeholders.

The Babri Masjid was built in the 16th century and was demolished in the year 1992 for allegedly being built over the Ram Janmabhoomi. The demolition resulted into nation-wide communal riots between Hindu and Muslim community that killed around 900 people. Since then, there has been an ongoing dispute over the rights of the Hindu and Muslim community to build a temple or a masjid, respectively.

Source: ANI

Hot Off The PressNews

Supreme Court: The bench of JS Khehar, CJ and AK Goel and Dr. DY Chandrachud, JJ issued notice to the Centre seeking it’s response on the validity of the special status of the State of Jammu and Kashmir under Article 370 of the Constitution.

As per the petitioner Kumari Vijayalakshmi Jha, Article 370 of the Constitution had lapsed automatically with the dissolution of the Constituent Assembly of Jammu and Kashmir on January 26, 1957. The plea also urged to declare the separate Constitution of Jammu and Kashmir as invalid. The petitioner approached the Supreme Court after her plea was dismissed by the Delhi High Court last year.

Source: ANI

Hot Off The PressNews

Kerala High Court: In the writ petition filed by Prasanth Sugathan, legal director of the SFLC, the Court passed an interim order allowing the petitioner to file his Income Tax Return manually without quoting the Aadhaar number.

The petitioner had challenged the mandatory requirement to quote Aadhaar number or enrollment ID for filing Income tax returns as per Section 139AA of the amended Income Tax Act, 1961. He had argued that the partial stay granted by the Supreme Court in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647,  in compulsory linking of PAN and Aadhaar would be futile if assesses were forced to quote their Aadhaar number while filing IT returns.

On 09.06.2017, the bench of Dr. A.K. Sikri and Ashok Bhushan, JJ had in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, upheld the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory and said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. As per the order of the Court, those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.

Source: CNN-News18

OP. ED.

The 9-judge bench Right to Privacy hearing came to end and the whole country is now waiting for the judgment to be out, some in anticipation of their rights to be recognized and some hoping for a decision that will act as a firm standing for the Aadhaar scheme. Whichever side the Supreme Court picks, one cannot deny the fact that this 6-day long hearing was one of the biggest hearings that the World has witnessed lately and whatever these 9-judges decide, is going to be a law for a long time.  To put things into perspective, this 9-judge bench was formed in the year 2017 to decide the correctness of a law that was laid down in the year 1954. Stakes are high and neither of the parties took it lightly. While some arguments gained applaud, some managed to raise a few eyebrows. Let’s look back at some of the important highlights from the hearing.

  • Privacy as a Fundamental Right without defining contours

Petitioners argued that Privacy is the very essence of liberty. It is not only a fundamental right but an inalienable right. MP Sharma and Kharak Singh cases deal with only single aspect of privacy and the Court needs to declare a broader Right to Privacy as a Fundamental right. If that is not done, all other rights will have no meaning. Dr. D.Y. Chandrachud, J showed some concern over the possible effects of declaring Right to Privacy as a Fundamental Right without defining any contours. He said that it might make the Naz Foundation judgment on Section 377 IPC vulnerable.

  • Dark Web doesn’t justify State actions

S.A. Bobde, J quizzed the petitioners on dark web to which the Petitioners responded by saying that there is no denying that 80% of the internet is Dark Web but that cannot justify State’s actions in violation of privacy. This cannot have any bearing on the recognition of the right.

  • No Fundamental Right to Privacy = Misuse by State

Petitioners put forth the concerns over possible misuse of power by the Government if Right to Privacy is not recognized as Fundamental Right. It was contended that in this digital age, if not in Aadhaar, a data protection and privacy question would have risen in another case. The delay in recognizing Right to Privacy by the Courts has resulted into the collection of the biometric data of all the citizens of the country in the name of Aadhaar. It was argued that the Government suspended the rights of the people during emergency and it wants to do the same today even in the absence of emergency.

  • Privacy is vague; has many aspects

State based it’s argument of the vagueness of the definition of Privacy. It was contended that since there is no clear definition of privacy, it cannot be elevated to Fundamental Right. It was also submitted that most of the aspects of privacy were already protected under Article 21 of the Constitution and that there was no need to declare Privacy as a fundamental right and asked the Court to define privacy on cases-to-case basis. It was argued that privacy was only a civil right and such rights were deliberately left out by the framers of the Constitution.

  • State’s notion of Privacy in a Poor or Developing nation like India

Centre argued that there should be no fundamental right to privacy in a developing nation. State of Maharashtra also took a strong stand against fundamental right to privacy and said Aadhaar is important for subsidy schemes and if asked to choose between subsidized food and private information coming out, people will choose food.

  • Privacy norms in other Countries

State argued that there were different norms of privacy in different countries and India’s definition of privacy is much different. One example of this difference that was quoted before the Court was of Public Display of Affection that was allowed in the US, to which Dr. D. Y. Chandrachud responded by saying that this means that Indians were more private and needed right to privacy.

  • Effect of recognizing Fundamental Right to Privacy on existing laws

State showed it’s apprehension towards the possible effect of declaring Right to Privacy as a Fundamental Right to Privacy by saying that there are Rules that say that compound walls can only be three feet or so and the Court will be flooded with the cases challenging such laws. J Chelameswar, J asked the State to calm down and said that declaring privacy as a fundamental right will not mean that every regulation will be struck down.

  • Right to be left alone

State submitted that privacy was nothing but a formal name for right to be left alone and that right has already been recognized as a part of liberty.

  • States in favour of Fundamental Right to Privacy

States of Karnataka, West Bengal, Punjab, Kerala and Puducherry argued in favour of fundamental right to privacy and said that there can be no liberty without privacy. Kapil Sibal, appearing for 4 out of 5 States, in rejoinder said that he had little faith on the Parliament and that the Court should decide the matter.

  • Aadhaar vis-à-vis Data Protection

Even though the Court had made it clear that it will only decide the issue relating to Right to Privacy and will not go into the merits of Aadhaar, State defended the Aadhaar Scheme during the hearing. This resulted into questioning by the Court on the Data Protection measures under the Aadhaar Act, 2016. State replied by saying that Section 29 of the Act prohibits disclosure of core biometrics. The Court seemed unimpressed and said that a robust mechanism was required.

  • Aadhaar’s survival chances

While the Court said that it will give a comprehensive judgment on right to privacy for the conceptual clarity of the nation, it also hinted that the judgment will not have a major impact on the Aadhaar Scheme. Upon witnessing the apprehension of the State, R.F. Nariman, J said that the Court was not saying that it will repeal Aadhaar. It will try to balance Aadhaar with right to privacy. All said and done, though there is strong change that the Supreme Court might recognize Right to Privacy, the Aadhaar Scheme, that prompted this great debate, will survive.

 

Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.