Op EdsOP. ED.

Introduction

In 2020, the State Legislature of Uttar Pradesh passed the U.P. Revenue Code (Amendment) Act, 2020 which received the assent of the Governor on 28-8-2020. The much welcomed, progressive and liberative Amendment Act recognised rights of the third gender in matters regarding property ownership, inheritance and succession which before any such amendment were available only to male and female members of the society. However, the amendment fails to put an end to the preferential treatment given under Sections 108[1], 109[2], 110[3] and 112[4]of the U.P. Revenue Code, 2006 to the male relatives and unmarried women relatives in line of succession, the 2006 Code discriminates the married women relatives to their disadvantage by placing them on lower order of succession.

Section 108(1) lays down the principles to be followed for devolution of holdings of a male bhumidhar, asami or government lessee, it reads out to realise a preference in treatment of the heirs mentioned in any preceding clause of Section 108(2), it further states that the heirs in preceding clauses shall inherit exclusively and irrespective of the rights of heirs mentioned in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b) and so on, in succession.

The abovesaid principles when put into action give out a discriminating effect against the married female class, due to the arrangement of heirs in Section 108(2) extracted below:

(2) The following relatives of the male third gender bhumidhar, asami or government lessee are heirs subject to the provisions of sub-section (1), namely–

(a) Widow, or third gender spouse, unmarried daughters, third gender issue and the male lineal descendants in the male line of descent per stirpes:

Provided that widow, unmarried daughters, third gender issue and sons howsoever low shall inherit per stripes the share which would have devolved upon the predeceased son had he been alive.

(b) Mother and father.

(c) Married daughter.

(d) Brother, unmarried sister, third gender sibling being respectively the son and daughter, third gender issue of the same father as the deceased, and son, unmarried daughter, third gender issue of predeceased brother, the predeceased brother, having been the son of the same father as the deceased.

(e) Son’s daughter and third gender issue.

(f) Father’s mother and father’s father.

(g) Daughter’s son, third gender issue and unmarried daughter.

(h) Married sister.

(i) Half-sister, being the daughter of the same father as the deceased.

(j) Sister’s son, third gender issue and unmarried daughter.

(k) Half-sister’s son, third gender issue and unmarried daughter the sister having been the daughter of the same father as the deceased.

(l) Brother’s son’s son, third gender issue and unmarried daughter.

(m) Father’s father’s son, third gender issue and unmarried daughter.

(n) Father’s father’s son’s son, third gender issue and unmarried daughter.

(o) Mother’s mother’s son, third gender issue and unmarried daughter.

The above arrangement is purposefully arranged to deprive the married female relatives of the bhumidhar, asami or government lessee from inheriting holdings at par with other relatives to protect and safeguard the holdings from alienation.

Section 109 of the 2006 Code lays down the provisions regarding succession to women inheriting interest as a female heir. Under the scheme of this section where before or after the commencement of the Code, any woman inherits the interest of a male [third gender] bhumidhar, asami or government lessee in any holding and such woman dies, marries or remarries after such commencement then, her interest in the holding shall, subject to the provisions of Sections 107[5] and 112, devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee. The words and expression, “nearest surviving heir” are to be understood as per the provisions of the abovestated Section 108.  In case any woman inherits as a daughter, who has a surviving heir as mentioned in clause (a) of Section 110 then her interest shall devolve upon such surviving heirs, preferring the nearer heir against the remoter in same branch and excluding a widow who has remarried.

In the above set-up, it is evident even from blind eyes that a woman is made to choose between her right of inheritance and her right to marry or remarry and upon her death if she has no surviving heirs, her interest in the holding shall devolve upon the nearest surviving heir of the last male [third gender] bhumidhar, asami or government lessee.

The arrangement of heirs of a female bhumidhar, asami or government lessee under Section 110 of the 2006 Code again classifies on sex and marital status of heirs, it becomes immaterial of what marital status a male heir holds but it is imperative to determine the marital status of a female heir before she can even stand in line for succession, here again from protecting the holding from alienation.

Under Section 112 if two or more co-widows inherit the interest of a male tenure-holder, and any one of them dies or remarries without leaving any heir entitled to succeed in accordance with Section 108, the interest of such co-widow shall pass by survivorship to the surviving widow and where there are two or more surviving co-widows, then to the surviving co-widows in equal shares.

Therefore, in case a widow chooses to remarry she has to waive off her claim to the holding, if wanting to retain her interests, she must opt out of a resettlement in life and continue to live with the misery of a widow.

Bharat Ratna Dr B.R. Ambedkar stated, on the floor of the Constituent Assembly that in future both the legislature and the executive should not pay mere lip service to the directive principles but they should be made the bastion of all executive and legislative actions. Legislative and executive actions must be conformable to and effectuation of the fundamental rights guaranteed in Part III[6] and the directive principles of State policy enshrined in Part IV[7] and the Preamble[8] of the Constitution which constitutes conscience of the Constitution. Covenants of the United Nations Organisation (UNO) add impetus and urgency to eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constellate economic empowerment of women in socio-economic restructure for establishing egalitarian social order. Law is an instrument of social change as well as the defender for social change. Article 2(e) of CEDAW enjoins the courts to breathe life into the dry bones of the Constitution, international conventions and the Protection of Human Rights Act, 1993[9] and to prevent gender-based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights to women.

The friction in law 

I. The bare text of law

A. International law

The General Assembly of the United Nations adopted a declaration on 4-12-1986 entitled “The Declaration on the Right to Development” in which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and fundamental freedoms are indivisible and independent. Article 1(1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised. Article 6(1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub-article (2) enjoins that … equal attention and urgent consideration should be given to implement, promote and protect civil, political, economic, social and cultural rights.

Vienna Declaration on the Elimination of All Forms of Discrimination against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979. The Government of India which was an active participant to CEDAW ratified it on 19-6-1993 and acceded to CEDAW on 8-8-1993 with reservation on Articles 5(e), 16(1), 16(2) and 29 of CEDAW. The preamble of CEDAW reiterates that discrimination against women violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes more difficult for the full development of potentialities of women in the service of their countries and of humanity. Poverty of women is a handicap. Establishment of a new international economic order based on equality and justice will contribute significantly towards the promotion of equality between men and women, etc. Article defines discrimination against women to mean “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. Article 2(b) enjoins the States parties while condemning discrimination against women in all its forms, to pursue, by appropriate means, without delay, elimination of discrimination against women by adopting “appropriate legislative and other measures including sanctions where appropriate, prohibiting all discrimination against women”. To take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Clause (c) enjoins to ensure legal protection of the rights of women on equal basis with men through constituted national tribunals and other public institutions against any act of discrimination to provide effective protection to women. Article 3 enjoins States parties that it shall take, in all fields, in particular, in the political, social, economic and cultural fields, all appropriate measures including legislation to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. Article 13 states that “the States parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular”. Article 14 laid emphasis to eliminate discrimination on the problems faced by rural women so as to enable them to play in the economic survival of their families including their work in the non-monetised sectors of the economy and shall take all appropriate measures. Participation in and benefit from rural development and, in particular, shall ensure to such women the right to participate in the development programme to organise self-groups and cooperatives to obtain equal access to economic opportunities through employment or self-employment, etc. Article 15(2) enjoins States parties to accord to women in equality with men before the law, in particular, to administer property.

Article 5(a) of CEDAW to which the Government of India expressed reservation, does not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Article 2(f) read with its obligation undertaken under Articles 3, 14 and 15 of the Convention vis-à-vis Articles 1, 3, 6 and 8 of the Declaration on the Right to Development. The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14[10] and 15[11] of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.

B. Domestic law

A combined reading of Articles 15(1) and (3) of the Constitution of India positively protects acts or actions made in favour of empowerment or upliftment of women. Article 21[12] of the Constitution of India reinforces “right to life”. Equality, dignity of person and right to development are inherent rights in every human being. Life in its expanded horizon includes all that gives meaning to a person’s life including culture, heritage and tradition with dignity of person. The fulfilment of that heritage in full measure would encompass the right to life. For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) and (j)[13] of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender-based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal status and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights.

The Hindu Succession (Amendment) Act, 2005[14] has availed the Hindu women coparcenary rights and thereby equal rights of succession as male coparceners, and being a central legislation, it enjoys primacy over any State law that may stand in contravention of it.

The U.P. Revenue Code, 2006, is a secular law that applies to all persons irrespective of their religion or belief. Therefore, the Hindus under the Hindu Succession Act, 1956[15] may draw significant benefits with regard to equal rights of succession, however there lies one area of discrimination which has not effectively been addressed by the 2005 Amendment.

Agriculture falls under the State List in the Seventh Schedule[16] to the Constitution and therefore any law made by the State of Uttar Pradesh in this regard prevails over the Hindu Succession Act, in such a case the 2006 Code enjoys primacy over the central law and therefore the married and unmarried women are placed on different pedestals for succession and find themselves in a situation of second graders, similar is the case with members of the other religion and belief.

Judicial pronouncements

The Supreme Court of India in C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil[17], observed that women have right to elimination of gender-based discrimination particularly in respect of property so as to attain economic empowerment, this forms a part of universal human rights that they have right to equality of status and opportunity which also forms part of the basic structure of the Constitution. Supreme Court is obliged to effectuate these rights of women, personal laws inconsistent with the constitutional mandates are void under Article 13[18].

In Valsamma Paul v. Cochin University[19], it was held that:

  1. Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth – cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention on the Elimination of All Forms of Discrimination Against Women (for short “CEDAW”) was ratified by the UNO on 18-12-1979 and the Government of India had ratified as an active participant on 19-6-1993 and acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity.

In G. Sekar v. Geetha[20], the amendment introduced in Sections 6 and 23 of the Hindu Succession (Amendment) Act, 2005 was declared valid on the ground that the amendment is intended to achieve the object of Articles14 and 15 i.e. removal of gender inequality.

In C.B.Muthamma v. Union of India[21], it was held that in the face of equality of sexes being guaranteed under Articles 14 and 16(1)[22], any rule which debars a married woman being appointed or requires a woman employee to resign on her marriage, would be struck down as unconstitutional, because there is no such corresponding bar in the case of men who, too, are likely to be involved on domestic commitments, on marriage.

In Vineeta Sharma v. Rakesh Sharma[23], the Court concluded as under:

(i) The provisions contained in substituted Section 6[24] of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule[25] to the Act of 1956 or male relative of such female.

Conclusion

 It is only reasonable to deduce that the classification of women based on their marital status to decide their place in the order of succession under the 2006 Code is violative of their rights recognised under Articles 14, 15, 16 and 21 as present in the constitutional schema.  They cannot be made to choose between their right to marry and right to inherit property simply because such a mandate is against their dignity and an anathema to right to equality.

These issues having been much abated by the legal academia and even the Law Commission of India in its 174th[26], 204th[27] and 208th[28] Reports. After decades of legislative and judicial businesses, there still remains the stigma attached to inheritance of property by women, it is time that gender-based untouchability or second-grade treatment is done away with by way of social activism, targeted legislation and judicial guidance.


± 4th year student, Faculty of Law, BVDU, Pune.

[1]<http://www.scconline.com/DocumentLink/IN6YyRR0>.

[2]<http://www.scconline.com/DocumentLink/aQf7F7bi>.

[3]<http://www.scconline.com/DocumentLink/cg0s18Kq>.

[4]<http://www.scconline.com/DocumentLink/0B6xRe8j>.

[5]<http://www.scconline.com/DocumentLink/Au2n96uP>.

[6]<http://www.scconline.com/DocumentLink/aU9cZ86r>.

[7]<http://www.scconline.com/DocumentLink/K5tB3p6b>.

[8]<http://www.scconline.com/DocumentLink/8bvjrn3W>.

[9]<http://www.scconline.com/DocumentLink/2K2MTxa4>.

[10]<http://www.scconline.com/DocumentLink/h7G5KbD4>.

[11]<http://www.scconline.com/DocumentLink/9etOajU7>.

[12]<http://www.scconline.com/DocumentLink/VN1u87S9>.

[13]<http://www.scconline.com/DocumentLink/mAj3qHzU>.

[14]<http://www.scconline.com/DocumentLink/S9rw2b75>.

[15]<http://www.scconline.com/DocumentLink/7stFp3DE>.

[16]<http://www.scconline.com/DocumentLink/7x8jhePz>.

[17] (1996) 8 SCC 525

[18]<http://www.scconline.com/DocumentLink/cXoE51V8>.

[19] (1996) 3 SCC 545, 562-632

[20] (2009) 6 SCC 99

[21](1979) 4 SCC 260

[22]<http://www.scconline.com/DocumentLink/k8TMppSJ>.

[23] (2020) 9 SCC 1

[24]<http://www.scconline.com/DocumentLink/k0WmkSp1>.

[25]<http://www.scconline.com/DocumentLink/mv0LINWg>.

[26]<http://www.scconline.com/DocumentLink/N5gyaXFt>.

[27]<http://www.scconline.com/DocumentLink/VjqB7HZ8>.

[28]<http://www.scconline.com/DocumentLink/1cQGtHGS>.

Case BriefsHigh Courts

Allahabad High Court: Following the order given on 11th May by the Court which had directed that Pandemic Public Grievance Committee should be formed in each district, the Court noted that the government had filed an affidavit stating they had passed directions to form a committee in each district on 13th May, 2021.

As no guidelines were given by the state on how such committees would function the Court ordered that the Committee along with the District Nodal Officer who is appointed in every district by the State Government shall ensure that each and every grievance stands redressed within 24-48 hours. The Court also enlarged the scope of the Committee to look into the complaints of supply of oxygen to those who are in home isolation, the private hospitals and nursing homes of the district concerned.

Health Infrastructure of five districts

In the order dated 11th May, the Court had ordered district magistrates to submit data on health infrastructure in their districts. On perusal of the data, the Court had no hesitancy in stating that the infrastructure was lacking in urban areas to meet the needs of the city population and life saving gadgets were scarce in rural community health centres. Level 3 hospitals were lacking in most districts.

Taking the sample case of Bijnor, both in terms of health infrastructure and testing, the Court ordered the State Government to immediately improve and increase the testing methods of the rural population and the population of small cities and towns and also provide sufficient health care infrastructure.

Court observes State’s Health System is “Ram Bharose”

Taking the case of one (Late) Mr Santosh Kumar, 64, who was admitted in an isolation ward in Medical College, Meerut on 21st April. On 22nd April, he went to the washroom and fainted there. He was brought out and laid on a stretcher. Efforts were made to revive him but unfortunately he passed away. The doctor who admitted him in the hospital was the same doctor on duty that night, however neither that doctor and none of the other hospital staff could recognize the patient and his body was disposed of as an unidentified body. On this incident, the Court observed that

If this is the state of affairs of treatment at medical College in the city like Meerut then the entire medical system of the State pertaining to the smaller cities and villages can only be taken to be like a famous Hindi saying ‘Ram Bharose’

The Court further observed that:

‘A patient is admitted to the hospital in an absolute care of doctors and paramedical staff and if the doctors and para medical staff adopt such casual approach and show carelessness in the performance of their duty, then it is a case of serious misconduct because it is something like playing with the lives of innocent people’

Court emphasised on need to vaccinate each person in the state and improve health infrastructure

The Court gave the following suggestions to the state to improve vaccination rate in the state

  1. Those who would like to buy vaccines for the ‘have-nots’ should be allowed to do so and given benefit under the IT Act.
  2. Big business house who donate to religious organisations should be asked to divert fund for vaccines.
  3. Incentives should be given to local manufacturers who have the infrastructure to produce such vaccines.
  4. Big medical companies and even the government should produce vaccines on a large scale.

The Court observing that when it [health infrastructure of the state] cannot meet the medical requirements of our people in normal times then it definitely had to collapse in the face of the present pandemic, gave various suggestions for improving the health infrastructure of the state such as:

  1. All nursing homes should have an oxygen facility on each bed.
  2. Nursing homes/hospitals having more than 20 beds should have 40% beds reserved for ICU.
  3. Of the designated 40 per cent; 25 percent should have ventilators, 25 percent should have High Flow Nasal Cannula and 50 per cent of the 40 per cent reserved beds should have bipap machines
  4. Every hospital with more than 30 beds should have an oxygen production plant
  5. Medical colleges in Prayagraj, Agra, Meerut, Kanpur and Gorakhpur should have enhanced facilities as are there with the prestigious Sanjay Gandhi Postgraduate Institute within a period of four months. Emergency laws should be applied for the acquisition of land for them, autonomy and funds should be given to them to achieve the same.
  6. Community health centres in villages should have pathology services at par with Level 2 hospitals
  7. Every B and C grade town in the state should have 20 ambulances each and every village should have 2 ambulances with ICU facilities.

The Court stated that the viability of following the suggestions may be looked into at the highest level and a report should be submitted on the next date by the Health Secretary of both the Centre and the State. The Court directed appointment Nodal Officers by the District Judges of districts Bijnor, Bahraich, Barabanki, Shrawasti, Jaunpur, Mainpuri, Mau, Aligarh, Etah, Etawah, Firozabad and Deoria and asked them to submit a report in a week’s time. The date of next hearing was set at 22nd May, 2022.

[In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive, Public Interest Litigation No. 574 of 2020, decided on 17-05-2021].

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the Allahabad High Court judgment issuing directions for “lockdown” in the State of Uttar Pradesh but has directed that the State Government to “immediately” report to the High Court about the steps it has taken and proposes to take in the immediate future within a period of one week in view of the current pandemic.

The Court has appointed Senior Advocate P.S. Narasimha as Amicus Curiae and has listed the matter after 2 weeks.

Solicitor General Tushar Mehta, appearing for the State had argued before the Court that the State Government has issued several directions to contain the spread of Corona Virus and are taking adequate precautions at their own and that the directions issued by the High Court vide the impugned order are as rigorous as a lockdown though the High Court has observed that “they are nowhere close to a complete lockdown”.

Yesterday, the Allahabad High Court had said that it was their constitutional duty to save innocent people from the pandemic and in order to break the chain of COVID-19 pandemic, people are to be restrained from going outside their homes for a week.

It said that,

“Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people. It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.”

While the High Court said that the directions issued by it were “nowhere close to a complete lockdown”, it remarked,

In this order if we have not imposed a lockdown it does not mean that we do not believe in it. We are still of the view that if we want to break the chain a lockdown for a duration of at least two weeks is a must.”

[State of Uttar Pradesh v. High Court of Judicature at Allahabad, 2021 SCC OnLine SC 336, order dated 20.04.2021]


For Petitioner(s): SG Tushar Mehta, AAG Garima Prashad, Adv. Rajat Nair and AOR Abhinav Agrawal

For Respondent(s): AOR Talha Abdul Rahman

ALSO READ

“Govt. is to blame for chaos; Harsh steps necessary before pandemic spirals to engulf entire population”: All HC orders closing of all establishments (exceptions listed) till 26th April in select districts, asks Govt. to consider complete lockdown for entire State

Case BriefsHigh Courts

Allahabad High Court: The Division bench of Govind Mathur, CJ and Saumitra Dayal Singh, J., directs the Chief Judicial Magistrate to submit a report after conducting an inquiry in regard to a matter wherein a Practicing Advocate was beaten and manhandled by the police at Etah.

The Bar Council of Uttar Pradesh addressed a letter to the Chief Justice of this Court with a request to take appropriate action in relation to an incident said to have taken place at Etah on 21-12-2020.

As per the averments contained in the letter, it was submitted that Rajendra Sharma, a practicing advocate at Etah was beaten and manhandled by the police along with humiliation and harassment to his relatives.  Secretariat of the Chief Justice from the High Court Bar Association also had sent a letter in regard to the same issue.

Bench in light of the above held that it would be appropriate to have a complete report of the said incident through Chief Judicial Magistrate, Etah.

Hence, Chief Judicial Magistrate, Etah shall make a necessary inquiry by availing all relevant facts including audiovisual electronic documents and submit to this Court.

District Magistrate, Etah as well as Senior Superintendent of Police, Etah have been directed to co-operate with the Chief Judicial Magistrate, Etah and they shall supply all relevant facts and documents as desired by the Chief Judicial Magistrate, Etah to furnish a report of the incident to this Court.

Matter to be listed on 08-01-2021.[Suo Moto Cognizance of The Police Atrocitities Over an Advocate, In Re., 2020 SCC OnLine All 1556, decided on 29-12-2020]

Legislation UpdatesStatutes/Bills/Ordinances

Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020

This Ordinance has been promulgated by the Governor of Uttar Pradesh, for the purpose of providing prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith.

Prohibition of conversion from one religion to another by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage [SECTION 3]

The ordinance states that no person shall convert or attempt to convert any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage.

If any person reconverts to his/her immediate previous religion, the same would not come under the ambit of this Ordinance.

Persons competent to lodge FIR [SECTION 4]

Aggrieved, his/her sister/brother, parents or any other person who is related to him/her by blood, marriage or adoption can file an FIR and report of such conversion that contravene the provisions of Section 3.

The ordinance lays down the punishment for contravention of provisions of Section 3 under Section 5.

Marriage done for the sole purpose of Unlawful Conversion or vice-versa to be declared void [SECTION 6]

If marriage is conducted for the sole purpose of unlawful conversion or vice-versa by the man of one religion with the woman of another religion, either by converting himself/herself before or after marriage or converting the woman either before or after the marriage shall be declared void.

Non-bailable and Cognizable [Section 7]

All the offences under this Ordinance shall be cognizable and non-bailable and triable by the Sessions Court.

Declaration before Conversion of religion and pre-report about conversion [SECTION 8]

Person who desires to convert to some other religion needs to provide a declaration in the form prescribed in Schedule-I at least sixty days in advance either to the District Magistrate or Additional District Magistrate and states that the same is being done with his/her free consent and without any force, coercion, undue influence or allurement.

Religious convertor who shall perform the above-stated act of conversion will also have to give one month’s advance notice in the form prescribed in Schedule -II TO District Magistrate or Additional District Magistrate regarding where the said ceremony would take place.

Declaration post-conversion of religion [SECTION 9]

The converted person shall send a declaration in the form prescribed in Schedule-III within 60 days of the date of conversion, to the District Magistrate in which the converted person resides ordinarily.

Punishment for violation of provisions of Ordinance by an institution or organization [SECTION 10]

If any institution or organization violates the provisions of the ordinance, they shall be subjected to punishment as provided under Section 5 and the registration of the said institution or organization shall stand cancelled.

Burden of Proof [SECTION 12]

The burden of proof of whether a religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage would lie on the person who caused the conversion and where such conversion was facilitated by any person on such other person.

The above Ordinance will extend to the whole of Uttar Pradesh.


Details of the Ordinance can be read here: UP_Prohibition_of_Unlawful_Conversion_of_Religion_Ordinance,_2020

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

Legislation UpdatesNotifications

Kushinagar Airport in Uttar Pradesh is declared as International Airport with immediate effect

Ministry of Civil Aviation notifies that the Kushinagar Airport in Uttar Pradesh is declared as International Airport with immediate effect.


Ministry of Civil Aviation

Notification dt. 08-07-2020

Cabinet DecisionsLegislation Updates

Union Cabinet has given its approval for declaration of Kushinagar Airport in Uttar Pradesh as an International Airport.

Kushinagar Airport is located in the vicinity of several Buddhist Cultural Sites like Sravasti, Kapilvastu, Lumbini (Kushinagar itself is a Buddhist cultural site) and declaration as an “International Airport” will offer improved connectivity, wider choice of competitive costs to the air-travellers.  It will result in boosting of domestic/international tourism and economic development of the regions.  It will be an important strategic location with the international border close by.

Kushinagar is located in the north-eastern part of Uttar Pradesh about 50 km east of Gorakhpur and is one of the important Buddhist pilgrimage sites.


Cabinet

Press Release dt. 24-06-2020

Hot Off The PressNews

Supreme Court: The bench of R.K. Agrawal and A.M. Sapre, JJ agreed to examine a plea of the income tax department whether the North Okhla Industrial Development Authority (NOIDA) is a corporation established by the Uttar Pradesh government under the state industrial development law or not. The Court said that it will look into the appeal filed by the IT department against an order of the Allahabad High Court which held that NOIDA is a corporation established under the Act and, therefore, banks are not liable to deduct income tax at source on fixed deposits.

The issue arose in 2013, when the IT department imposed a tax liability on the banks for non- deduction of TDS on the interest income on fixed deposit receipts (FDRs) of NOIDA. The banks, hence, preferred an appeal before the Commissioner of Income Tax (Appeals) (CIT-A), saying the NOIDA is a corporation established by the state law and banks are not under the statutory obligation to deduct and pay the income tax.

The IT department approached the Court against the order of the High Court and sought for determination of the issue as to whether NOIDA is a corporation entitled for exemption from deduction of income tax at source under the provisions of a notification issued in 1970 under the Income Tax Act.

Source: PTI