Law made Easy

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Introduction

The patriarchal setup has been deeply rooted in Indian society since time immemorial. It may be believed that this system laid the foundation stone for the abuse of women. Domestic violence affects women from every social background irrespective of their age, religion, caste, or class. It is a violent crime that not only affects a person and her children but also has wider implications for society. Although the root behind the crime is hard to decipher, certain reasons behind the violence can be traced to the stereotyping of gender roles, and the distribution of power.

The definition of violence has evolved over the years to an extent it not only includes physical forms of violence but also emotional, mental, financial, and other forms of cruelty. Thus, the term domestic violence includes acts which harm or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing: physical abuse, sexual abuse, verbal abuse, emotional abuse, and economic abuse, perpetrated by any person who is or was in a domestic relationship with the victim.

Before the enactment of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), the victim could approach the court under Section 498-A of the Penal Code, 1860 which provides for ‘husband or relative of husband of a woman subjecting her to cruelty’ wherein only a certain set of offence dealing with cruelty to married women was the only recourse. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim.

Protection of Women from Domestic Violence Act, 2005: Meaning, Intent, and Objective

To minimize the cumbersome position of law, be it procedural or substantive, the Protection of Women from Domestic Violence Act, 2005 was enacted to protect the women from acts of domestic violence. The legislative intent was further emphasized by the Supreme Court of India in the case of Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755 wherein it was stated that the DV Act is enacted to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society. Other legislations like CrPC, IPC, etc., where reliefs have been provided to women who are placed in vulnerable situations were also discussed.

The objective of the Act lays down “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.”[1] The Madras High Court in Vandhana v. T. Srikanth, 2007 SCC Online Mad 553 in one of the early cases since the enactment of the DV Act, observed that the Act was formulated to implement Recommendation No. 12 of United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 1989 and which was ratified by India in June, 1993. Interpretation of the DV Act should conform to international conventions and international instruments and norms. The Bombay High Court in the case of Ishpal Singh Kahai v. Ramanjeet Kahai, 2011 SCC Online Bom 412 reiterated that the object of the DV Act is to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights. The Act provides for security and protection of a wife irrespective of her proprietary rights in her residence. It aims at protecting the wife against violence and at the prevention of recurrence of acts of violence.

Key Definitions under the Domestic Violence Act

  • Aggrieved Person

According to the definition provided under the DV Act in Section 2(a), an “aggreived person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Therefore, any woman who is or has been in a domestic relationship is entitled to make a complaint invoking provisions of the Act.

The amount or period of time lived together by the petitioner and respondent is not necessary in terms of that the petitioner and respondent should live or have lived together for a particular period of time. Hence, application by lady, for maintenance, from a man with whom she shared a close relationship is maintainable, M. Palani v. Meenakshi, 2008 SCC Online Mad 150.

The Supreme Court had observed in one of the cases that judicial separation does not change the status of the wife as an “aggrieved person” under Section 2(a) read with Section 12 and does not end the “domestic relationship” under Section 2(f). It stated that judicial separation is mere suspension of husband-wife relationship and not a complete severance of relationship as happens in divorce, Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705.

  • Domestic Relationship

According to Section 2(f) of DV Act, “domestic relationship” means a relationship between two persons living in a shared household. Domestic relationship can be through marriage such as wives, daughters-in-law, sisters-in-law, widows and any other members of the family; or blood relationship such as mothers, sisters or daughters; and other domestic relationships including through adoption, live-in relationships, and women in bigamous relationship or victims of legally invalid marriages. The law addresses the concerns of women of all ages irrespective of their marital status. The definition of “domestic relationship” under the DV Act is exhaustive: when a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive, Indra Sarmav. V.K.V Sarma, (2013) 15 SCC 755.

The Supreme Court further stated that the word domestic relationship means a relationship that has some inherent or essential characteristics of marriage though not a marriage that is legally recognized. Expression “relationship in the nature of marriage” cannot be construed in the abstract. It is to be taken in the context in which it appears and to be applied bearing in mind the purpose and object of DV Act as well as meaning of the expression “in the nature of marriage”, Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755.

  • Shared Household

According to Section 2(s) of DV Act 2005, a shared household is where the aggrieved person or a woman lives in a domestic relationship, either singly, or along with the man against whom the complaint is filed. It may also imply a household where a woman has lived in a domestic relationship but has been thrown out. This may include all kinds of situations whether the household is owned by the respondent or it is rented accommodation. It also includes a house either owned jointly by the aggrieved person and the respondent or both may have jointly or singly, any rights, titles or interests. The DV Act recognizes a woman’s right to reside in a shared household. This means a woman cannot be thrown out of such a household except through the procedure established by the law. In case she is thrown out she can be brought back again after obtaining the order from the court. A woman to claim the protection of right in “shared household” has to establish (a) that the relationship with the opposite party is “domestic relationship”, and (b) that the house in respect of which she seeks to enforce the right is “shared household”. In Indian society, there are many situations in which a woman may not enter into her matrimonial home immediately after marriage. A woman might not live at the time of the institution of proceedings or might have lived together with the husband even for a single day in “shared household” should not be left remediless despite valid marriage. Narrow interpretation of “domestic relationship” and “shared household” would leave many a woman in distress without remedy. Hence the correct interpretation of aforesaid definition including the right to live in “shared household” would be that words “live” or “have at any point of time lived” would include within its purview “the right to live”, Vandhana v. T. Srikanth, 2007 SCC Online Mad 553.

This law does not alter the legality of ownership or transfer the ownership and a woman cannot claim that she owns a house; it only provides emergency relief to the victim in the sense that she cannot be thrown out of her house. For claiming ownership, a woman has to follow a separate legal procedure and has to file a separate application as per the provisions of laws whichever are applicable to her situation.

  • Domestic Violence

“Domestic violence” is a broad term that entails not only physical beating but also other forms of violence such as emotional violence, mental violence, sexual violence, financial violence and other forms of cruelty that may occur within a household. The definition provided in Section 3 of the DV Act includes the following as acts of domestic violence:

“Any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it—

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

The Section also defines the meaning of terms physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse. It further enunciates that the overall facts and circumstances of the case shall be taken into consideration in order to determine whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under the said section.

Who can seek help or can claim reliefs under the Domestic Violence Act?

According to the provisions of this Act, any aggrieved woman who is in a domestic relationship with the respondent and who alleges to have been subjected to the act of domestic violence by the respondent can seek help. A woman can file a complaint against any adult male perpetrator who commits an act of violence. She can also file a complaint against any male or female relatives of the husband/ male partner (for example in a live-in relationship) who has perpetrated violence. The Supreme Court in Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 struck down adult male from the definition of “respondent” stating that it is not based on any intelligible differentia having rational nexus with object sought to be achieved. The Supreme Court also explained in the said case that the categories of persons against whom remedies under the DV Act are available include women and non-adults. Expression “respondent” in Section 2(q) or persons who can be treated as perpetrators of violence against women/against whom remedies under the DV Act are actionable cannot be restricted to expression “adult male person” in Section 2(q). Thus, remedies under the DV Act are available even against a female member and also against non-adults.

Protection Officer

Under Section 8 of the DV Act, the Protection Officer is appointed by the State Government as per the provisions of the law. The Protection Officer acts as a facilitator between the aggrieved woman and the court. The Protection Officer aids the aggrieved woman in filing of complaints, and application before the Magistrate to obtain the necessary relief and also assists to obtain medical aid, legal aid, counselling, safe shelter and other required assistance.

Duties of Protection Officer

Section 9 of the DV Act lays down the duties of the Protection Officer as follows:

“(a) to assist the Magistrate in the discharge of his functions under this Act;

(b) to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed, upon receipt of a complaint of domestic violence and forward copies thereof to the police officer in charge of the police station within the local limits of whose jurisdiction domestic violence is alleged to have been committed and to the service providers in that area;

(c) to make an application in such form and in such manner as may be prescribed to the Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection order;

(d) to ensure that the aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 and make available free of cost the prescribed form in which a complaint is to be made;

(e) to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;

(f) to make available a safe shelter home, if the aggrieved person so requires and forward a copy of his report of having lodged the aggrieved person in a shelter home to the police station and the Magistrate having jurisdiction in the area where the shelter home is situated;

(g) to get the aggrieved person medically examined, if she has sustained bodily injuries and forward a copy of the medical report to the police station and the Magistrate having jurisdiction in the area where the domestic violence is alleged to have been taken place;

(h) to ensure that the order for monetary relief under Section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

(i) to perform such other duties as may be prescribed.”

Service Providers

A victim of domestic violence may require various services such as shelter home or safe accommodation, medical aid, child care, legal aid services and other community services. According to Section 10(1) of DV Act, the Service Providers are the NGOs, Companies or voluntary organizations working in the field of domestic violence and are registered under the laws of the State. Service Providers are duty bound to provide assistance and support to women facing domestic violence. A woman can go to a registered Service Provider to make a complaint under the DV Act. The duty of the service provider, as provided under Section 6 of the DV Act, upon receipt of request should be to provide shelter to the aggrieved person in the shelter home.

Filing a Complaint of Domestic Violence

An aggrieved woman, in order to file a complaint for domestic violence may:

  • Approach the police station and register the complaint, or
  • File a complaint to a Protection Officer or Service Provider, or
  • Directly approach the Magistrate.

The duties of the police officers, Protection officer, Service Provider, or the Magistrate is laid down under Section 5 of the Act. It states that, upon receipt of complaint they shall inform the aggrieved person—

“(a) of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order under this Act;

(b) of the availability of services of service providers;

(c) of the availability of services of the Protection Officers;

(d) of her right to free legal services under the Legal Services Authorities Act, 1987 ;

(e) of her right to file a complaint under Section 498-A of the Indian Penal Code , wherever relevant”

The Supreme Court emphasised that the Police has to look into the complaint made under the DV Act seriously and it cannot submit a report that no case is made out without proper verification, investigation, enquiry not only from members of family but also from neighbours, friends and others, Santosh Bakshi v. State of Punjab, (2014) 13 SCC 25.

Which Court can decide the case

Section 27 of the DV Act provides that a first class magistrate or metropolitan court shall be the competent court to grant a protection order and other orders under the DV Act and to try offences under the Act within the local limits of which

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen.

In a recent decision, the Supreme Court held that petition under DV Act can be filed in a court where “person aggrieved” permanently or temporarily resides or carries on business or is employed, Shyamlal Devda v. Parimala, (2020) 3 SCC 14.

Reliefs available under the Domestic Violence Act

The remedies available under the DV Act as provided from Section 18 to 23 for the aggrieved person are as follows:

The Magistrate after giving the aggrieved person and the respondent an opportunity of being heard and if satisfied that domestic violence has taken place or is likely to take place may pass a protection order and prohibit the respondent from

(a) committing any act of domestic violence;

(b) aiding or abetting in the commission of acts of domestic violence;

(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;

(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;

(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;

(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;

(g) committing any other act as specified in the protection order.

The Magistrate may pass a residence order

  1. a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

The proviso clause for the section states that no order shall be passed under clause (b) against any person who is a woman.

The High Court of Madras opined that the Act contemplates two types of reliefs viz. (a) right to reside in shared household; and (b) right to seek residence orders under Section 19 of the Act—Section 19(1) of the Act empowers Magistrate to pass variety of residence order. Shared household would come into picture only when relief is sought in terms of Sections 19(1)(a) to (e) of the Act. Aggrieved woman can seek orders to enable her to continue to reside in shared household or protection order to enable her to reside in shared household, then property, which is subject-matter, should be shared household. Aggrieved woman can seek relief of alternate accommodation in terms of Section 19(1)(f) of the Act and in such case concept of shared household would not be attracted. Expression “shared household” occurring in Section 19(1)(f) of the Act is just for purpose of enabling aggrieved woman to seek alternative accommodation, which would be on par with shared household that she enjoyed at some point of time, M. Muruganandam v. M. Megala, 2010 SCC Online Mad 6012.

Under Section 20 of DV Act, an order for monetary relief can be passed by the court in case a woman has incurred expenditure as a result of violence. This may include expenses incurred by a woman on obtaining medical treatment, any loss of earnings, damage to property, etc. The aggrieved person can also claim for maintenance from her male partner.

The Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 or any other law for the time being in force.

It has also been provided in the section that the monetary relief provided should be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. In case there is a failure in part of the respondent to make payment in terms of the monetary order, the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.

The Magistrate may grant temporary custody of the children to the aggrieved woman or any person making an application on her behalf. This is to prevent a woman from being separated from her children, which itself is an abusive situation. Section 21 also states that the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent. However, the Magistrate may refuse such visit to such child or children, if it feels that any visit to the child or children by the respondent may be harmful.

The Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.

  • Magistrate’s power to grant interim and ex parte orders (Section 23)

Section 23 gives power to the Magistrate to pass such interim order as he deems just and proper and also if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent.

Conclusion

Although the major objective of this law, being to protect the women against domestic violence has been secured, certain portions of the law still remains to be developed. This law provides civil remedies to the victims of domestic violence. Before enactment of this law, in order to seek any civil remedies such as divorce, custody of children, injunctions in any form or maintenance, a woman only had the option of taking recourse to the civil courts. Therefore, the DV Act has certainly brought about the required and necessary change in the system.

Although the Act provides exhaustive remedies to counter the issue of domestic violence certain terms and its interpretation needs to develop. The Act falls short in providing any relief to the male members in the community who are subjected to domestic violence, being one of the areas where the law falls short. However, it also needs to be considered that no crime can be abolished from the society completely, it is only with stringent reforms and mechanism that it can be curbed.


[1] Protection of Women from Domestic Violence Act, 2005


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Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Asha Menon, JJ., while addressing a matrimonial application stated that,

“Marriage is no doubt a sacrament, but it cannot be a one sided affair.”

Present appeal has been preferred against the Judgment of Family Court wherein the marriage between the appellant/respondent and respondent/petitioner was dissolved as the same was sought on grounds of cruelty and desertion within the meaning of Section 13(1)(i–a) and (i–b) of Hindu Marriage Act.

Facts

Respondent/Petitioner alleged that the conduct of the appellant/respondent was extremely cruel and he possessed a callous and indifferent attitude since the initial years of marriage.

It was also discovered that he had many personality and behavioural problems, wife time and again tried to cope up with husband’s shortcomings an tried to help him acquire stability and status in life, many times forgiving his violence.

On repeated occasions, she found to her consternation, that the appellant/respondent made no effort to either settle down in his job or contribute to the household including taking care of their child’s educational needs.

Things reached a breaking point when despite the request of the respondent/petitioner not to invite his parents to their transit accommodation at Jawahar Lal Nehru University which had limited space and to request them to stay with his sister who was residing in Gurgaon, the appellant/respondent threw a tantrum and left the house in October 2011 without understanding that the reason for the said request was only the pre- board exams of their daughter.

Premised on the above-stated facts, respondent/petitioner filed for divorce.

Appellant/respondent preferred the present appeal on the ground that the petition for divorce has been filed by the respondent/petitioner after nearly 20 years of the marriage and therefore, it ought to have been dismissed.

Counsel for the appellant contended that, language used by respondent/petitioner in her letters does not demonstrates any hard feelings between the couple and thus the story of cruelty was just a figments of imagination of respondent/petitioner on which marriage could not have been dissolved.

Analysis and Decision

A drowning man clutching on to a straw

It is quite evident from the letters written by the respondent/petitioner that while she was doing her very best to preserve the marriage, there was no reciprocation from the appellant/respondent.

“I have been writing to you every week regularly. There is no reply from you? I have left 4-5 inlands in our room letter holder. Pick one of them and write back soon.” In the letter dated 29.07.2000, once again, it starts “how are you? There is yet no letter from you.” Therefore, to submit that these letters disclose a ‘happy family’ scenario, is to blink at the truth.

Bench while noting the log list of instances of cruelty, stated that,

repeated onslaught on her emotions even subsequent to these instances took a toll on the physical and mental health of the respondent/petitioner.

All the relevant events that have continuously occurred in the lives of the parties, reflect a one sided relationship where the appellant/respondent took everything for granted, with no sense of responsibility, while the entire burden of trying to keep the marriage alive was left for the respondent/petitioner to shoulder.

Court also added that, this is a typical case that showcases as to what would amount to cruel behaviour on the part of one spouse to the utter detriment of the other.

Material on record goes to amply demonstrate the sincere efforts made by the respondent/petitioner to salvage the marriage and show that she did more than what was her duty, to preserve it.

Thus in light of the above observations, Family Court’s decision is upheld. [Venkatesh Narasimhan v. V. Sujatha, 2020 SCC OnLine Del 571 , decided on 01-05-2020]

COVID 19Hot Off The PressNews

Under the directions of Union Minister for Home Affairs, Shri Amit Shah, Union Ministry of Home Affairs (MHA) has again directed all States/UTs today to ensure adequate security to healthcare professionals, medical staff & frontline workers to prevent violence against them. Strict action must be taken against those who obstruct performance of last rites of medical professionals or frontline healthcare workers succumbing to COVID19, while discharging their services.

MHA had issued advisories to all States/UTs on 24.03.2020, 04.04.2020 and 11.04.2020, requesting them to ensure adequate protection to healthcare professionals, medical staff and frontline workers by augmenting their safety and security cover. In spite of the said communications, some incidents of violence have been reported from different parts of the country against healthcare professionals/frontline workers. It is evident that at this time, any single incident of violence against healthcare professionals is likely to create a sense of insecurity amongst the entire healthcare community.

The Supreme Court of India, in its direction on 08.04.2020, has observed that the Government of India, respective States/Union Territories and respective Police authorities should provide necessary police security to doctors and medical staff in hospitals and places where patients who have been diagnosed COVID-19 or patients suspected of COVID-19 or those quarantined are housed. Further, the Court directed to provide necessary police security to doctors and other medical staff who visit places to conduct screening of people to find out symptoms of disease.

In line with the Supreme Court directions and provisions of the Disaster Management Act, 2005, MHA has urged upon all State/UT and District authorities to invoke the provisions of the Act, or any other law in force, to take strict penal action against the offenders, who obstruct Government health officials, or other health professionals and/ or related persons, who are authorized under the Disaster Management Act, 2005, in the discharge of their lawful services.

MHA has further requested State Governments/UT Administrations to appoint Nodal Officers at State/UTlevel and at District level, who would be available 24×7 to redress any safety issue on the functioning of medical professionals. They should also take immediate and strict action in case any incident of violence takes place, it was requested.

In addition to this, States/UTs have been requested to widely publicize details of preventive measures taken and appointment of Nodal Officers, amongst the medical fraternity, including the local chapters of the IMA, as well as to the public at large, to ensure compliance at ground level.

To read the detailed letter, please click the link below:

SECURITY TO HEALTHCARE PROFESSIONALS


[Dated: 22-04-2020]

Case BriefsCOVID 19High Courts

Jammu and Kashmir High Court: A Division Bench of Gita Mittal, CJ and Rajnesh Oswal, J. flagged certain important issues with regard to the present situation of pandemic COVID-19.

Healthcare Personnel

Personnel engaged in treatment of COVID-19 patients and prevention of the infection would be working beyond the call of their routine duties and also overtime. Administration may have accounted for such a contingency.

If the above has not been done, the administration may consider the possibility of running 24 hours canteens/kitchens in al hospitals/institutions to enable provision of the necessities of the healthcare and other personnel engaged in addressing the COVID-19 issues.

Secretary, Department of Health and Medical Education look into this matter and submit a report.

In order to ensure the full attention of the personnel addressing COVID-19 issues, it is necessary that they be kept free of any personal tensions and needs.

Thus in above view it is a necessity to create a network/body of person who would attend to the needs of the family members/dependents of all personnel attending COVID-19 issues.

Direction is issued to the Secretary, Department of Social Welfare to examine and take a decision on creation of machinery for addressing the said aspect.

Lockdown

It is essential to be prepared for the possibility of a partial or a full removal of the lockdown restrictions; Preparedness of public about permissible conduct upon removal of restrictions (partial or complete); progression of the COVID-19 virus infection and life of the virus; possibility of carriers existing and infecting despite the lockdown and all related information is required.

Thus, Secretary, Health and Medical Education Department; Secretary, Social Welfare Department; Director, Information Department; Member Secretary, JK State Legal Services Authority  is directed to immediately take such appropriate action as may be required on the above.

Personal Protection Equipments

Complaints about dearth of safety kits for healthcare have been received by the Court.

Thus , Health and Medical Education shall inform this court with regard to availability of personal protection equipments for the safety of all healthcare workers.

Jammu and Kashmir Suspension of Sentence Rules, 2020

Court has asked for the urgent implementation of the above rules for grant of special parole to prisoners.

Additional Secretary to the Government, Sajad Amin Shah stated that directions have been issued to the IGP (Jammu), IGP (Kashmir) and IGP (Ladakh) to ensure that complete safety and security is provided to the personnel who are serving at all government facilities.

One of significant issue noted by the Court was that of incidents of violence against healthcare professionals.

In the current situation, medical, nursing as also paramedical students may be roped in for assisting the efforts. Violence includes not only acts against these personnel but also damage to hospitals, clinics, ambulances etc.

Judicial notice can be taken of the fact that such violence is not new. 

Such violence at this time highlights dangerous consequences which can result as huge spread of the COVID-19 infection; imperil lives of healthcare personnel as also damage to public property earmarked as at present to meet the needs of the COVID-19 infection.

Pandemic and current crisis brings to the fore the critical issue of addressing the issues of violence to healthcare personnel and damage to the property of healthcare establishments.

Court notes that 19 states have enacted their own specific laws addressing violence against healthcare professionals and establishments specifically.

Bench was pained to note that such critical matter being randomly addressed and 19 legislation already in existence in separate States with reports on matter showing hardly any prosecutions.

Further the Court stated that,

these matters would need critical attention of the Central Government as well as the Governments of Union Territories of Jammu and Kashmir and Ladakh.

Possible impact of pollen/seeds with cotton fluffs released by poplar trees in Kashmir valley.

It was submitted that this pollen remains in air for between 25-30 days and created havoc so far as respiratory diseases were concerned.

It may also have the potential to hold the COVID-19 virus and resulted in aggravation of spread of this infection as well.

The above-said aspect is to be examined by Secretary, health and medical Education.

Pilgrims allegedly stranded at Katra

Bench was informed that so far as 400 stranded pilgrims from Bihar were concerned, these persons were camping at Shiv Market/Shiv Temple opposite Jammu Tawi Railway Station at Jammu and not in Katra.

Local administration had shifted these persons to an Ashram at Jammu. Boarding and lodging of these pilgrims/persons was to be taken care of by the District administration.

According to the Shrine board, no single Yatri is stranded at Katra now.

Bench also placed a word of appreciation on the unstinted efforts of Government of Union Territory of Jammu and Kashmir and Ladakh on COVID-19 issues.

Matter has been listed on 10-04-2020. [Azra usmail v. UT of J&K,  2020 SCC OnLine J&K 219, decided on 03-04-2020]

Hot Off The PressNews

Ministry of Information and Broadcasting issues advisory and reiterates that all TV Channels are advised to be particularly cautious with regard to any content which:

  • is likely to encourage or incite violence or contains anything against maintenance of law and order or which promotes anti-national attitudes
  • contains an attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes;
  • contains anything defamatory, deliberate, false and suggestive innuendos and half-truths

All private satellite TV Channels are requested to ensure strict compliance with the above.


Ministry of Information & broadcasting

[Advisory dt. 24-02-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., directed the State to remove from all Government portals and facebook sites of government institutions and departments the publications that are Anti Citizenship (Amendment) Act, 2019 and National Register of Citizens (NRC).

Court further asked the Eastern Railway and Southern-Eastern Railway to place reports with respect to actual details of loss caused to railway property and damages incurred therein. The reports will also contain a statement in regard to the action taken and the action to be taken for recovery of loss caused for such damages to the railway property.

The Bench decided to leave open the legal issue as to whether the State or the Government could issue such publications at State expense or using the government machinery.

Court also noted the Advocate General Kishore Datta’s response with respect restrictions on internet services, that the same have been lifted throughout the State and the publication material which is anti-CAA and NRC to be withdrawn from circulation.[Sri Surajit Saha v. State of W.B., 2019 SCC OnLine Cal 5228, decided on 23-12-2019]

Hot Off The PressNews

Editors Guild of India issues statement condemning the acts of violence and brutality committed by by police forces, in particular those in Karnataka and Uttar Pradesh, against media persons in dfferent parts of the country in last one week.

Guild reminds the police forces across the country that journalists are present at different venues, where protests are taking place, as part of their Constitutionality guranteed duties of gathering information and disseminating it among the people through tehir respective media platforms. Using force or physical volence against journalists on duty throttles the very voice of democracy and media freedom.

The Guild urges the Union Home Ministry to direct police forces in different states to offer adequate protection to journalists engaged in coverage of the ongoing protests. Instead of targeting them forphysical attack, the need of the hour is to ensure proper and reponsible coverage, a goal that cannot be achieved by by such acts of violence and brutality against journalists on duty.


Editors Guild of India

[Press Statement dt. 23-12-2019]

Hot Off The PressNews

Jamia Milia Violence | Jamia Protest | Citizenship (Amendment) Act, 2019

Sunday evening on 15-12-2019 turned out to be full of fear and violence on the campus of Jamia Milia Islamia University when police forces entered the campus and used tear gas along with lathi-charge on students.

It has been reported that, the students were detained and taken to two of the police stations where for a few hours no lawers, activists, media persons or anyone was allowed to enter. Students were beaten in the libraries, hostels, everywhere.

Several came out in support of the Jamia Students.

As reported by NDTV, Protests swept campuses across the country against the police crackdown at Jamia Millia Islamia after Sunday evening’s violence over the new citizenship law.

The police, which used batons and teargas to contain the violence, later barged into the university and detained around 100 students. All the detained students were released around 3:30 am.

Delhi High Court’s take on the incident:

As reported by All India Radio, A bench of Chief Justice D N Patel and Justice C Hari Shankar declined to list the plea for urgent hearing, saying there was no urgency in the matter.

The plea sought judicial inquiry into the action taken by the police, including allegedly firing at the students.  It also seeks proper medical treatment and compensation for the injured students.

Legislation UpdatesNotifications

S.O. 4273(E).—Whereas, the United Liberation Front of Asom and its various factions, wings and fronts (hereinafter referred to as the ULFA) has professed its aim namely, the “Liberation” of Assam from the Indian Union through an armed struggle in alliance with other armed secessionist organisations of the North East Region”;

And Whereas, the Central Government is of the opinion that ULFA has-

(i) indulged in various illegal and violent activities intended to disrupt the sovereignty and territorial integrity of India in furtherance of its objective of liberating Assam;

  1. (ii)  aligned itself with other unlawful associations of North Eastern Region to secede Assam from India;
  2. (iii)  in pursuance of its aims and objectives, engaged in several unlawful and violent activities during the currency of its declaration as an unlawful association;

And Whereas, the Central Government is of further opinion that the unlawful and violent activities which are attributed to ULFA include –

  1. (i)  about seventy incidents of violence, either individually or in alliance with other insurgent groups of North East Region, during the period from 1st January 2015 to 31st July 2019;
  2. (ii)  killing of thirty-two persons, including twenty-five civilians and seven security forces personnel, during the period from 1st January, 2015 to 31st July 2019;
  3. (iii)  kidnapping of six persons, during the period from 1st January, 2015 to 31s1 July 2019;
  4. (iv)  forty- seven cases of recovery of unauthorised arms and ammunitions from its cadres;
  5. (v)  indulging in a spate of extortions and secessionist activities, and endangering the lives of innocent citizens, in addition to acts of kidnappings for ransom;
  6. (vi)  instructing its cadres to carry out acts by targeting the establishments of security forces and their personnel, political leaders, railways and oil installations;
  7. (vii)  establishing sanctuaries and training camps in the neighboring countries; and
  8. (viii)  embarking upon restructuring of its organisational network at the grass root level by launching a systematic drive for recruitment of fresh cadres while continuing its violent and insurgent activities;

And Whereas, for the reasons mentioned above, the Central Government is also of the opinion that the activities of ULFA are, detrimental to the sovereignty and integrity of India and that it is an unlawful association;

And Whereas, if there is no immediate curb and control of the unlawful activities of ULFA, it may take the opportunity to –

  1. (i)  mobilise its cadres for escalating its secessionist, subversive and violent activities;
  2. (ii)  openly propagate anti-national activities in collusion with forces inimical to India’s sovereignty and national integrity;
  3. (iii)  indulge in killings of civilians and targeting of police and security forces personnel;
  4. (iv)  procure and induct more illegal arms and ammunitions from across the border;
  5. (v)  extort and collect funds and illegal taxes from the public for its unlawful activities;

Now therefore, in exercise of the powers conferred by sub-section (1) of section 3 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), (hereinafter referred to as the said Act), the Central Government hereby declares the United Liberation Front of Asom (ULFA) along with all its factions, wings and front organisations as an unlawful association;

The Central Government, having regard to the activities of ULFA, mentioned above, and to meet the sustained and ever increasing violence committed by ULFA in the recent past against the police, the armed forces and the civilians, is of the opinion that circumstances exist which render it necessary to declare ULFA to be an unlawful association with immediate effect and accordingly, in exercise of the powers conferred by the proviso to sub-section (3) of section 3 of the said Act, hereby directs that this notification shall, subject to any order that may be made under section 4 of the said Act, have effect from the date of its publication in the Official Gazette.


Ministry of Home Affairs

[Notification dt. 27-11-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Akshaya Kumar Mishra, J. acquitted the accused by setting aside the order of the Sessions Court since the allegation of dowry or violence were not proven and were vague.

The facts of the case are that the deceased had married the petitioner in 1997 and after a few days he started demanding for cash, T.V., cycle and for the inability to give those articles, the deceased returned to her father’s house and lodged written FIR. Based upon the testimony of the victim, the demand was found to have been proved. A concurrent verdict was passed in 1999 by the Addl. Sessions Judge dismissing the appeal against the judgment given in 1998 passed by the SDJM. However, the deceased had filed an affidavit in pursuance of the order stating that she was staying with her husband and both of them was blessed with two female children. In today’s date, the children are well settled and are living with their father peacefully.

The Court while setting aside the order passed by the Addl. Sessions Judge, held that there was no clinching evidence to hold the accused persons guilty for the reason that the allegation of torture was not specific and demand of dowry was not commensurate to the common man life. [Raibu v. State Of Orissa, 2019 SCC OnLine Ori 28, Order dated 24-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of R.K. Gauba, J. quashed the summoning order passed by Metropolitan Magistrate against the CEO of Swiggy observing that it does not pass the muster of a judicial order.

The incident 

The incident occurred at Delhi-19, a restaurant in Kalkaji, Delhi. The company “Swiggy” is a food aggregator which collects food and beverages from restaurants as per customer’s orders through delivery personnel described as PDP (pick-up and delivery partners). On 14-7-2018, there was a rush of PDPs at Delhi-19 as there was some delay in service by the restaurant. The situation got out of hand inasmuch as the Fleet Manager of Swiggy had to intervene. It was alleged that later some of the PDPs returned and ransacked Delhi-19. In such course, violence erupted and one Kanav Madnani suffered injuries. An FIR was registered on statement of the proprietor of Delhi-19 and after the filing of first charge-sheet was filed against arrested persons. Subsequently, a supplementary charge-sheet was filed on the basis of which CEO of Swiggy (petitioner) was summoned to appear before the Metropolitan Magistrate.

The charge

In the supplementary charge-sheet, the CEO of Swiggy along with others was sought to be put on trial for the offence punishable under Section 109 read with Section 338 IPC. It was indicated that he was negligent in framing the policies with respect to the employment of delivery boys and failed to take preventive steps, thereby having intentionally aided by illegal omission, the commission of offence under the sections mentioned herein.

High Court’s decision

The High Court noted that the petitioner was stationed in Bangalore far away from the Delhi, the place of incident. The court was of the view that having regard to CEO’s role and responsibilities, the Magistrate was expected to subject the entire material presented before him to a closer scrutiny.  It was held that the summoning order did not pass the muster of a judicial order. There was no consideration of background facts or the connection between the offence and role of the CEO. In such circumstances, the summoning order was quashed and the matter was remitted back to MM for fresh consideration.[Sriharsha Majety v. State (NCT of Delhi), 2019 SCC OnLine Del 6730, dated 25-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Delhi High Court took suo motu cognizance of violence and vandalism against members of the Delhi Bar. The Bar in it’s resolution dated 23rd January, 2018 and 22nd January, 2018 mentioned that the Counsel who were victimised were so victimised because they were appearing as counsel for a lady advocate.

The Court noted that there was shocking similarity in the design and manner of the execution of the incidents of violence and vandalism and hence, opined that the incidents could not be treated as separate incidents. The court noted that FIRs have been filed in relation to the incidents but even after a month, minimal steps have been taken by the police in providing assistance and carrying out investigation. The Court, stating that such violence to thwart legal assistance in pending cases is tantamount to criminal contempt of court. In view of above observations, the Court invoked it’s suo motu jurisdiction to call upon an immediate report from the Delhi Police. Also, it directed the matter to be treated as a writ in public interest. [Court on it’s own motion v. Commissioner of Police, Delhi, 2018 SCC OnLine Del 7221, decided on 29.01.2018]

Case BriefsHigh Courts

Delhi High Court: Amidst the increasing clamour surrounding the Central Board of Film Certification (CBFC) for its unnecessary incisions of the movies, a Division Bench comprising Rohini C.J. and Nath J. upheld the ruling of the Single Bench, rejecting all the incisions/deletions suggested by CBFC for the documentary ‘Textures of Losses’.

The documentary film highlighting the plight of Kashmiris caused due to gun violence in the region had obtained recommendations of CBFC for incisions/deletions of certain portions of the documentary. The recommendations were challenged by the producer/director of the documentary before the Film Certification Appellate Tribunal, which partly upheld the recommendations. Aggrieved by the same, the respondents approached the High Court, where the Single Bench set aside all recommendations in entirety. In the letters patent appeal filed, the appellants represented by Gaurav Sarin contended that the film being on a sensitive topic of violence in Kashmir required consideration with due care and caution in light of protecting the interest of sovereignty and integrity of India enshrined under Art. 19(2) of the Constitution.

The Bench refused to accept that there was any objectionable material in the film, stating that all views expressed by the people in the film are their personal views and are not anti-national. Court noted that the film seemed to depict the emotions of the persons who lost their dear ones in the violence. With the mutual settlement for placing a disclaimer at the commencement of the movie, the Court directed a ‘U’ certificate for the film, disposing the appeal in favour of the respondents. [Central Board of Film Certification v. Pankaj Butalia, 2016 SCC OnLine Del 844,  decided on 15/02/2016]