Weekly Legal Updates

Here we are... to begin this new session. We start with the updates from last week. 

The Supreme Court in a recent judgment has ruled that CCTV cameras should be installed in the prisons within one year and not later than that. The court has also suggested that all lock-ups in the country should have CCTV cameras installed as per the satisfaction of the police commissioner/DGP concerned. This was, however, left to the discretion of the respective states and union territories. The Supreme Court has also said that every police station should have at least two women constables to deal with women who are accused or suspects.

The Supreme Court came down heavily on the Central Government for not filing a counter affidavit in a petition questioning the functioning of the Juvenile Justice Boards (JJBs) across the country. The Social justice bench of the Apex Court, while imposing Rs.25,000 cost on the Ministry of Women and Child Development remarked “You are not even bothered to file your affidavit. You will have to pay the cost”. The bench, was hearing a Public Interest Litigation seeking proper implementation of Juvenile Justice Act and its rules. The Court had sought complete details on the pendency of cases, frequency of its sittings, vacancy of posts and other related issues.

The Bombay High Court has denied the relief under Protection of Women from Domestic Violence (DV) Act to a woman who was living with a married man for 15 years. The Additional Sessions Judge had ruled that the woman was in a “live-in relationship” with the married man and was entitled to relief under the Protection of Women from Domestic Violence (DV) Act. The Court observed that since they had been in a relationship for almost 15 years, common sense required that she should have made enquiries about his marital status. The Court also noted that the woman had not been able to give a single instance where they had appeared as husband and wife in the society on any occasion of marriage or party. The Court hence ruled that such a relationship cannot be relationship in the nature of marriage. She and her daughters were therefore, not entitled for any relief under the Protection of Women from Domestic Violence Act, 2005.  The Court however noted that the daughters may be entitled for relief under Section 125 of the Code of Criminal procedure.

A PIL has been filed in the Supreme Court challenging the appointment of Mr. K.V. Chaudhary as the Central Vigilance Commissioner and Mr. T.M. Bhasin as the Vigilance Commissioner as being “illegal and arbitrary”. The petitioners have claimed that there was complete non transparency on the part of the Central Government in making the appointment of the CVC and VC. The Petitioners have also claimed that the appointments violate the principles of ‘impeccable integrity’ and ‘institutional integrity’ laid down in the landmark judgments of Vineet Narain case (1998) 1 SCC 226 and Centre for Public Interest Litigation (CPIL) case (2011) 4 SCC 1.

Yakub Memon, convicted in the 1993 Mumbai serial blasts, has approached the Supreme Court challenging the death warrant for his execution scheduled on July 30. According to his plea the death warrant is illegal because it did not follow the proper procedure prescribed by the Supreme Court in Shatrughan Chauhan & Anr. v. Union of India & Ors.

The Supreme Court of India in a ruling (DM Wayanad Institute of Medical Sciences vs. Union of India and Another – Writ Petition (C) No. 441 Of 2015) has reaffirmed the settled legal position that under Article 32 it will not interfere with an administrative order where the constitutionality of the statute or the order made there under has not been challenged on the ground of contravention of Fundamental Rights. The Apex Court added that no question other than that relating to the Fundamental Rights will be determined in a proceeding under Article 32 of the Constitution.

The SC has dismissed a Public Interest Litigation that came up before the three Judges Bench praying “to stop the use of names and images of gods and goddesses for commercial exploitation”.  The court dismissed the petition remarking that “You have raised the issue which concerns the faith of the people. This country has 33,000 crore gods. Sorry.”

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (3rd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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The Art of Secularism

Author: Antriksh Mishra, 3rd Year student of IIT Law School, IIT Kharagpur.

"India is my country and I am proud to be its citizen"—one thing which no Indian will think twice before speaking. Now let’s change the parameters a little–"Hinduism is my religion and I am proud to be a Hindu." Now that is something people think twice before speaking. It has happened to me and to many others I know. 

In this post I would try to dwell the reasons for such hesitation. Let’s begin with Art. 25 of the Constitution of India, the famous "Freedom of Religion" clause. Firstly the clause allows "all persons" to "practice", "profess" and "propagate" their religion. This would include all individuals whether or not citizens of India.

The words "practice", "profess" and "propagate" cover any and all religious activities, even asking other persons to join your religion (as long as such joining is without force or consideration) is allowed (as mentioned by K. Santhanam during the Constituent Assembly Debates). And this beckons the question, "Why the hesitation?"

One might say that the answer is more of a psychological nature than legal. I would however respectfully disagree. The answer is more related to Indian Polity and Law than to Psychology.

Let’s start from the common understanding of the word secular and try to answers some fundamental questions.

1. Is being secular the anti-thesis of being religious?

The answer to this is a quite emphatic “No”. If being secular were the anti-thesis of being religious, both of these could not have found place in our Constitution. Secularism as referred to in the Preamble and religious freedom as referred to in Art. 25, as propounded by The Keshvananda Bharti Judgement, find their place in the basic structure of the Constitution. (Notwithstanding my objection on the way the Keshvananda Judgement was delivered, and how Justice HR Khanna's opinion was not similar to that of the other three majority judges, It is still the law of the land.)

2. Does being religious mean you must follow all preaching of a faith?

Again the answer would be an emphatic a “NO”. Take for example Galileo or Darwin, both of them asked questions and were subjected to great persecution, but today Christianity has evolved and accepted (to a certain extent) their theories, while they were devoted Christians till their dying breath. Now for the legal stand lets read Art 19 and Art 25 together, I have the right to free speech (which allows me any question on any religion) and Freedom of religion (which gives me freedom to choose religion), so no one has the right to doubt one’s faith in a religion, or stop him from practicing a religion based on questions raised by a follower. Religion (in theory) must welcome and clear doubts.

3. When one calls oneself proud to be of the Hindu faith does he become a zealot?

And again the answer is  a ”NO”. What faith you follow is a personal question, whether you choose to be vocal about it is a personal choice. As long as you don't hurt another faith how can there be a question of being a zealot. And this is where Politics comes into the picture. Hinduism in India seems to have become synonymous of RSS or BJP or the Babri Masjid incident. But frankly it is not. Not withstanding the fact that RSS ( the then Hindu Mahasabha) was the only organization other than the Muslim league to not take part in the Quit India movement and their chief in 2006 claimed that Quit India Movement was a failure.  In all fairness the public services done by RSS, Hinduism and Hindu extremists are two different things,just as Muslims are different from Muslim extremist. One does not equate the practices in Muslim majority State of Turkey to that of Saudi Arabia then why isn't such a differentiation available for the Hindu faith. As per the principle of equity Hindus have the same rights and responsibilities as the other minority classes in India. And by virtue of being the majority, the Constitution does not bestow upon them, a higher degree of responsibilities than the other faiths.

I am proud to say that I am religious, I am proud to say I am a Hindu and I am proud to say that I am a Bhartiya, an Indian, a Hindustani (which is actually derived from Indus, but Hey! propaganda is spread by use of selective dissemination of facts, as recently) and still I am secular. I respect other faiths, I ask questions about other’s and my own faith and I wish to leave my faith to future generations, evolved, than what it was when I had it. In this regard I agree with Mahatma Gandhi's views.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Transfer of a Judge

Author :  Pulkit Gopalkrishan Popli, 1st Year student of IIT Kharagpur Law School.

Often the judgments delivered by various courts receive various responses on the basis of credibility, justice served, equitable grounds etc. But recently a judgment delivered by Chief Justice of Kerala High Court sparked a controversy. The reason of the controversy was that Hon'ble Judge Manjula Chellur has been transferred to the Kolkata High Court where she assumed the charge on 5th of August. The transfer warrant was signed by the Honorable President on July 21 while the verdict on case was delivered on July 25. The verdict declared the 2007 eviction-drive in Munnar as illegal. The question arises, could a judge still deliver judgments after a transfer warrant was issued?

As per Article 222(1) the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. According to the Delhi High court rules,

“Every District Judge or Sub-Judge proceeding on leave or transfer, must, before making over the charge, sign a certificate that he has written judgments in all cases in which he has heard arguments. Should an officer be forced to lay down his charge suddenly, he shall, nevertheless, write the judgments in such cases, and send them for pronouncement to his successor.[1]”

This article along with article 217 has been the center of controversies. Article 217 states that 

“Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that-

              (a) a Judge may, by writing under his hand addressed to the President, resign his office;

             (b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;

           (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India”

In the Landmark Judgment of, S.P.Gupta v. Union of India case^[2] which is the last judgment of judge’s case trilogy, could be used to answer various queries regarding the transfer of judges.

In paragraph-900 at page 543 it was discussed whether how court views the transfer of judges? It was said that it is a transaction that takes place in two parts, the first is termination from the original high court and the second is the simultaneous appointment in the other high court.

This view is supported by the circumstance that the power of transfer is vested in the President. It is significant in this connection that the President is also the appointing authority in the case of appointment made under Clause (1) of Article 217 and is also vested with the power of removal in cases falling under Article 218 read with Clause (4) of Article 124. Therefore, it was necessary that the authority who has been otherwise vested with the power to appoint a Judge and to terminate his appointment should also be the authority to transfer him. It may be added that inasmuch as the transfer constitutes an appointment of the Judge to the other High Court. Article 219 comes into play and, therefore, the transferred Judge must, before he enters upon his office in that High Court, make or subscribe an oath or affirmation according to the prescribed Form.

Now the question that arises that the article stated that the office of the judge will be vacated by him while being transferred by the President to other high courts. So can we say that the judge that has been issued the transfer warrant can no longer work as a judge until he has joined the new high court? One of such questions arose in a case M.K. Sasidharan, Advocate Supreme Court and President v. The Hon'ble Chief Justice of India, Supreme Court of India and Ors.^[3]The Petitioner, an advocate practicing in the Supreme Court filed the Original Petition praying for the issue of a writ of Quo Warranto calling upon the 5th Respondent, a Judge of this High Court who has been transferred to the High Court of Gujarat, under what authority he has been discharging the functions as an Additional Judge of the High Court of Kerala. The 5th Respondent was appointed as an Additional Judge of the High Court of Kerala under Article 217 of the Constitution of India. He had sworn as a Judge of this Court on 11th April 1996. By virtue of powers vested in the President of India under Article 222 of the Constitution, the 5th Respondent was transferred to the High Court of Gujarat. He was given time till 9th May 1996 to assume charge as Judge of the Gujarat High Court. Later the President of India in consultation with the Chief Justice of India had granted extension of time from time to time up to 22nd July 1996. In the meanwhile the 5th Respondent was functioning as a Judge of this Court, hearing and disposing of cases. It was contended by the Petitioner that on his transfer to the Gujarat High Court, the 5th Respondent was ceased to be a Judge of this High Court and that he has no right or authority to discharge the duties of a Judge of this Court

In the judgement to this case, the court also said in paragraph 18:

“The prayer of the petitioner to issue a writ of quo warranto is not maintainable as the 5th respondent was appointed as an Additional Judge of the High Court of Kerala by the President of India in consultation with the Chief Justice of India and the warrant of appointment still holds good and he had been given time to assume office till 22-7-1996. He continues to be a Judge of this Court for all practical purposes.”

Thus from this case we can easily conclude that a judge continues to remain judge until she/he gets relieved from the previous court, not when she gets the transfer warrant but in order to maintain the spirit of the constitution it is preferred that they vacate it as soon as possible. So applying same standards in the case of Judge Manjula Chellur, it was duteous of her to deliver the judgment which and her authority of deliverance is not dubitable under law and complies with the spirit of constitution.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_AF9J1IE4.PDF

[2](AIR 1982 SC 149)

[3]AIR1997Ker35

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Parallel Judiciary in India

Author - Abhishek Chansoria, 1st Year student of IIT Law School (RGSOIPL).

The governance of our country rests on three pillars: the legislature, the executive and the judiciary. It is the Constitution which has bestowed these separate powers on the three. The same Constitution has left some elbow-space for the personal laws of an individual providing for non-intervention of the State in the personal issue of an individual, namely religion. But, what happens when this personal religious institution takes up the job of any of the three? Will the policy of non-intervention still hold its importance? If it doesn’t, then when does the need of such intervention arise?

The major personal laws in force in India are the Hindu and the Muslim laws. Every common law has been formed and subsequently evolved according to the comforts of the society. Be it the patriarchal northern India based on Aryan lines, or be it matriarchal southern and eastern India influenced by the Dravidian society, both have been churned with time to suit the ever growing society. Whereas it is evident that the Muslim laws have a heavy bias towards the male counterparts, the Hindu polygamy practices before the Srinivasa Aiyar v. Saraswathi Ammal, 1951 and the subsequent Hindu Marriage Act 1955 also reflect the plight of women. The government’s stance to abolish polygamy in Hindus was a blazing example of a legislation driving a social change.

In the Muslim communities, the practice of issuing Fatwa is a grave over-exercise of jurisdiction by an institution. In the judgment given by the Supreme Court of India in Vishwa LochanMadan v. Union of India, fundamental rights given to the people are considered to be above personal and religious norms. Article 13 of the Constitution states that every law which is in contravention with the Constitution is void. From the very first day of the enactment of the Constitution, certain fundamental rights have been recognized. Hence, every action violating our rights is void. A fatwa is not given a legal mandate and hence it has been left at the choice of the individual to follow the same. The authorities issuing Fatwa do not draw its power from any legislation, hence, the concept of deductive reasoning simply tells us that the Fatwa also do not hold any legal sanctity. In the words of the Supreme Court- “The power to adjudicate a provision must flow from a ‘validly made law’”, which involves the legislature. The religious institution should exercise advisory actions pertaining to the need for a balanced solution approach.

The khap panchayats are infamous for their orthodox and conservative stand in inter-caste marriages. A myriad of cases of honor killings are coming forward with every passing day.

Along with the analysis of the need to check certain authorities from over-stepping actions, it is imperative to acknowledge the social evils addressed by the same authorities. As we know that a Muslim community in Pakistan and a Muslim community in India have the same religious genesis but what is different between the two societies is the political will which has driven them further. On one hand, the handful amendments in the Muslim personal law show the political escapism in our country, and on the other hand, the drive to acknowledge social changes which is a proof of political desperation is surfacing in Pakistan.

In the last week of May, 2014 the religious leaders of Pakistan issued a Fatwa stating honor killings as an "Un-Islamic" act. The leaders opined that daughters are the gifts by Allah and being dishonored by them is forbidden in Islam. There is a need to look at our neighbour’s religious approach to the common laws.

A fatwa which is issued for curbing the practice of honor killing, hence upholding the right to life, liberty, free will of women and men shows the institutional responsiveness to address the social evil. Whereas, the authorities in India issue a fatwa, which is prima facie so retrograde, "advising" a rape victim to marry the rapist, who is her father-in-law. The fatwa also stated that her husband can no longer keep any physical relationship with her as it is written in Quran that "Marry not the women whom your father copulated".   

 

Talking about the khap panchayat’s involvement in evils like honor killing, a question on the authority of the Khap needs to be answered. From where do they draw the power to adjudicate such draconian laws? The Supreme Court of India has used the term “kangaroo courts” for such institutions. But, a critical point of analysis remains that, though we have a well written Constitution along with its machinery, still the provisions dictated by such authorities are recognized by a large part of the population under them. Doesn’t it show the social status and acceptance enjoyed by them?

As it is well evident that the three pillars of our democracy have somewhere lacked in filling this lacuna between the people (affected by such Fatwa and Khap) and their constitutional rights, hence it will be prudent to use the authorities already present on the ground for the constitutional realization. This can be done by strict and careful regulation on such institutions and there powers. The khappanchayats have been blamed for the honor killings, but recently a Khap namely, 'Satrol KhapPanchayat' in Narnid village, Haryana, has come forward with its ideology which is far from conservatism. The Khap hasagreed with the truth that interaction between men and women has increased andstopping it is not possible. The decision given by the five-member committee has loosened the knot by allowing marriages in 42 villages which were earlier banned. Also, it has shown desperation is curbing female foeticide, bride sharing and dowry.

We can conclude that whatever be the laws; personal or statutory, should not go against the Constitution. The Constitution is above every personal law as it ensures happiness for all not on the basis of religion but on the lines of individual dignity.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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PILs IN DISTRICT COURTS !!

In a very interesting development, the Chief Justice of the Andhra Pradesh High Court has raised a very interesting point about filing PIL in District Court!
What is at the heart of Constitutional Law is that a PIL can only be filed in the High Court or Supreme Court and only these courts have jurisdiction to entertain the same.

Any public spirited person does not have any other forum for redressal, as he has no locus standi for the matter. Well, soon this concept may find itself way back only in the annals of history. A new kind of Jurisprudence is now emerging where PIL in district courts can actually be envisaged. I freely admit, I myself was a part of the “ignorant society” that nodded and believed that only Constitutional Courts have the Jurisdiction to entertain a PIL. But kudos the innovativeness of the Indian Judiciary for envisaging a concept which may possibly help many public spirited persons in the future.

First, let us highlight what the Hon’ble Chief Justice Kalyan Sengupta said while delivering the C. Padmanabha Reddy Memorial Lecture organised by the Indian Association of Lawyers (IAL) in Hyderabad observed: (the report can be found here )

“A PIL could be filed in district courts or other subordinate courts also but not necessarily in the Supreme Court or High Courts. Judicial activism should be welcomed wherever the executive and legislative branches fall short of their goals and when a PIL comes against them, it should not be treated as an adversarial litigation but as a reminder of their Constitutional duties”

The idea itself isn’t bad. The vision of justice to the common man would be complete. The search and reach for justice has always eluded the common man, having to spend a lot of time and money to travel to long places, file for PIL in the HC or SC and represent their case. It’s not uncommon to make more than one appearance to get the desired relief. If PILs in District Court could make headway into the Judicial System, it would eliminate the need for the long wait of justice for people even in the remotest corner of India.

But is such an idea really feasible? District Courts always have the problem of pendency of cases with over 3 crore cases pending in courts. It would mean that district courts would also have to deal with the additional burden of PILs from persons who have no locus standi. This is specially a big problem because as it is the effective rate of disposal of cases is slow and time consuming. Unless additional resources are pumped in to expedite the process, it would be very difficult for the courts to carry this additional burden.

The competiveness of the District Court in handling PIL petitions is still uncertain. While on one hand, it may be especially good as District Court looks into matters of fact, hence it may examine evidence on a fact and decide on a petition, but there would not be an expeditious remedy. On the flipside, with regard to examining matters on PIL where effective, quick, correct and adequate remedy is the need of the hour, District Courts may, at some point, lack competence.

The Jurisdiction of the Court is also another aspect under consideration. The jurisdiction of the District Court is limited to the district only. This helps litigants save time and money and the Court may understand the problems of the district better than any of the Higher Courts. Yet its Jurisdiction being limited, it is very difficult for the court to give a judgment within the rigidity of jurisdiction it is bound in.

Another aspect is that, the courts are bound by procedural laws, making it very difficult to get quick remedies. So, it is very uncertain whether a District Court can be given wide amplitude of powers to bypass procedural laws which is required when a PIL petition is being heard.

In my opinion, considering many problems, and not to mention procedural aspects the District Courts may face, unless radical changes are proposed, it would be very difficult to actually put the vision of Hon’ble Chief Justice into practice. However all is not lost for the common man as he grapples with the administration, the government and the law in his quest to seek justice. The Code of Civil Procedure and Code of Criminal Procedure do provide sections for public to seek justice.

1. An important section provided by the CPC is to invoke section 91 of CPC which empowers any two public persons to raise any matter of public interest with the permission of the court in case of any public nuisance. The relief granted by the Court includes a suit of declaration and injunction or for such other relief as may be appropriate in the circumstances of the case.

2. Order I Rule 8 permits the filing of Representative Suit. Where any interested person may sue on behalf of all persons interested in the suit and a decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. This section can be used as a powerful tool to file a suit in the District Court, as the language of Order I Rule 8 is so wide so as to permit filing of a civil suit and asking for civil damages as a result of redressing any public injury, enforcing public duty and claiming public rights.

3. Though PIL generally creates civil liability only, even criminal courts can entertain a complaint from a member of the public. Section 190 of CrPC gives wide powers to a Magistrate based on information received by him to take cognizance of any crime which may have been committed and to direct the Police to investigate the same. This is particularly helpful when the public injury committed by person or persons alike may attract criminal liability. The investigations may proceed say, under sections 268 of IPC for public nuisance, section 133 of CrPC empowering magistrate to take action against public nuisance.

PILs have revolutionised our justice system. Indian Judiciary has always upheld the cause of justice to common man and has addressed the same. In this regard, PIL in District Courts would give the much needed impetus in the process of restoring faith of the common man in the judiciary. But, the process is long drawn and a tough one. Its implementation would be difficult. Let us hope the vision, the path and the cause that the Hon’ble Chief Justice envisaged is taken up by others and the issues are addressed.

Author: Suraj Badrayan

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