Today’s Legal Updates

Friday, 18th February 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Right to Freedom

Article – 20  Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.

Today’s Legal Updates:-

  1. A full-bench of the Karnataka High Court will continue hearing a batch of petitions filed by female Muslim students against ban on wearing hijab by certain Karnataka colleges.
    • Today the Karnataka government told the Karnataka High Court that the practice of wearing hijab must pass the test of constitutional morality laid down by the Supreme Court in the judgments in Sabarimala and Triple Talaq cases.
    • Advocate General Prabhuling Navadgi made arguments to that effect on behalf of the State.
    • AG Navadgi referring to the Supreme Court’s decisions in the Sabarimala and Triple Talaq cases, “Practice of wearing hijab must pass the test of constitutional morality and individual dignity.”
    • “We are pained at the way the government has been berated in these proceedings and how it is alleged we are dictated by some other reasons and that we are discriminating against girls and women. With absolute humility we say, State believes in treating everyone equally.”
    • At the beginning of today’s hearing, Senior Advocate Ravivarma Kumar suggested that live streaming of the case on YouTube be suspended, given that students are put to “untold hardship and misery.”
    • Chief Justice Awasthi said, “Let people hear what is the stand of the respondents also.”
    • Advocate Sirajudin Ahmad, appearing for one of the petitioners informed the Court that some anti-social elements were trying to restrain women from wearing hijab.
    • CJ Awasthi suggested “You should lodge an FIR against them,” 
    • Ahmad then argued that schools that were previously allowing Muslim students to wear hijab were now not allowing them to do so. “After the Court’s order, now every college is not allowing hijab, even those which used to allow. Your lordships order not clearly understood,”
    • At the start of his arguments, AG Navadgi said he would broadly cover three points raised by the petitioners:
      • The Government Order dated February 5, 2022 has been called into question. I submit it is in consonance with the Karnataka Education Act.
      • We take the stand that hijab is not an essential religious practice of Islam.
      • Petitioners argued that tight to wear hijab can be traced to Article 19(1)(a) and prevention of the same violates Article 19(1)(a). Our submission is that it does not do so.
    • “The prescription of uniform has been there for some time, from 2013. There was a resolution of the College Development Committee (CDC), to change the uniform of the girl students. The endeavour is to show that there was a prescription on uniform in the year 2013-14 itself.”
    • As regards the present scenario, the AG laid out the following scenario:
      • After CDC passed a resolution prescribing uniform on January 1 this year, students insisted on wearing hijab and did not abide by the resolution.
      • On January 25, another resolution was passed suggesting that status quo be maintained as a High Level Committee appointed by the State deliberates on the issue.
      • On January 31, a third resolution was passed stating that children should not wear hijab and if parents send girls with hijab, disciplinary action will be taken. This resolution is not under challenge before this Court or any other forum.
      • As protests against the rule intensified, the GO was issued on February 5.
    • AG Navadgi argued that the GO was innocuous in nature and does not affect any of the petitioners’ rights. He added that the State was not directly interfering in the issue, and only took the stand that what uniform the CDC has prescribed, should be followed. The draftsman (of the GO) has become enthusiastic and said public order…The question of proscribing or prescribing hijab does not arise. The State has given complete autonomy to the CDC and to private management for private colleges,” 
    • Chief Justice Awasthi then asked, “But come to the earlier part of this GO where you have said consider these judgments about hijab. What was the necessity to say all this?”
    • The AG maintained that the State has consciously kept itself away from the issue,
    • the Court asked, “So if the CDC permits students to wear hijab, you have no objection?” 
    • Navadgi replied, “State has revisionary powers under Section 131. If in future some student or authority has a grievance that it might result in something, we may or may not take a decision.”
    • CJ Awasthi then asked, “Wasn’t the GO premature? On one hand you are saying a High Level Committee is to be constituted, then on the other hand you issue these GOs.”
    • the AG’s response, “The government, considering exigencies, issued these orders under Section 133 (of Karnataka Education Act). These are unusual situation which came up,” 
    • “None of the colleges have come before Court saying this is without authority. Students have come before the Court saying that it is without authority. The challenge should fail on that ground alone.”
  2. Banning hijab is tantamount to banning the Quran, a petitioner-in-person argued before the Karnataka High Court in the hijab ban matter.
    • The petitioners – Muslim girl students from various colleges in Karnataka – approached the High Court after they were denied permission to attend classes on account of wearing hijab. Among the grounds cited in the petition is that the freedom of conscience and the right to religion are both guaranteed by the Constitution, despite which the students were singled out arbitrarily for belonging to the Islamic faith.
    • the manner in which they were ousted created a stigma against them, affecting their mental health as well as their future prospects, it was submitted. It was also claimed that wearing of hijab was an essential part of Islam and enjoys protection under Article 25(1) of the Constitution, which confers the right to freely profess, practise and propagate religion.
  3. Today the Bombay High Court directed its registry to ensure that no writ petition filed before the Court is registered unless the plea sets out specific grounds on the basis of which reliefs are claimed.  (Ambhika Magasvargiya Mastyavaivasaik Sahakari Sanstha Maryadit v. State of Maharashtra & Ors.)
    • The Court was dealing with a petition in which where there was no separate paragraph containing grounds as required under the Bombay High Court Appellate Side Rules of 1960.
    • “The Registry shall ensure that, in future, no Writ Petition is registered unless specific grounds are set out therein upon which the writ petition is moved for grant of relief, as claimed by the petitioner. Any lapse in this regard will be viewed strictly,”
    • Rule 1 of Chapter XVII of the Rules states that every application for the issue of a direction, order or writ under Article 226 of the Constitution shall:
      • be heard and disposed of by a Division Bench to be appointed by the Chief Justice.
      • set out the relief sought and the grounds on which it is sought.
      • be solemnly affirmed or supported by an affidavit.
      • State whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of
  4. Today the Calcutta High Court dismissed a Public Interest Litigation (PIL) seeking the removal of West Bengal Governor Jagdeep Dhankhar.  (Rama Prasad Sarkar v. Union of India)
    • The petition stated that the Governor was interfering in the functioning of the state of affairs and maligning the West Bengal government.
    • The plea also stated that Dhankhar was habitual of ignoring the aid and advice of the Council of Ministers and preached on all matters ranging from law and order to health to education.
    • Further, it was the petitioner’s stand that Dhankhar directly dictated State officials, which was violative of the Constitution.
    • The petition expressed concerns that not only in West Bengal, but State governments of Tamil Nadu, Punjab, Kerala were being disturbed through the appointed Governors at the behest of the Central government.
    • “The Governor is bound by the aid and advice of the Council of Ministers in the exercise of executive powers and ordinance-making powers. Moreover, as the Governor is bound by this advice, the Governor ought not to perform any executive functions in a personal capacity,” 
    • “Federalism is a part of the basic structure of the Constitution. This fundamental feature of the Constitution ought not to be ignored. Therefore, the Governor cannot treat an elected state government as a second fiddle. The longer Mr. Dhankar stays as Governor, there is a chance of the situation going from bad to worse, in which the Governor himself is a party.”
    • “Any failure of the Governor to perform her duties under this provision is subject to judicial review by the Court, and any mala fide intent or wilful negligence would result in liability being placed on such officer, as provided for under Article 361(1). “Pleasure of the President” merely refers to this will and wish of the central government.”
  5. Today the Delhi High Court passed an ad-interim order directing historians Audrey Truschke, Ananya Chakravarti and Rohit Chopra (defendants) not to publish any defamatory content alleging plagiarism against historian Vikram Sampath in relation to his works on Vinayak Damodar Savarkar.  (Dr. Vikram Sampath v Dr. Audrey Truschke and Ors)
  6. Today A Delhi Court refused to grant an interim injunction in favour of ScoopWhoop CEO Sattvik Mishra to restrain former employee Samdish Bhatia from publicly speaking about allegations of sexual harassment the latter levelled against the former.  (WHOOPSCOOP MEDIA PVT LTD Vs. SAMDISH BHATIA)
  7. Today the Supreme Court observed that the power of judicial review in the matters of disciplinary inquiries, discharged by constitutional courts under Article 226 or 227 of the Constitution is not analogous to adjudication of the case on merits as an appellate authority.  (General Manager (Operation-1) Appellate Authority, UCO Bank and Others v. Krishna Kumar Bhardwaj)
  8. Today A special court in Gujarat has sentenced to death 38 of the 49 convicts in the case relating to 2008 serial blasts in Ahmedabad, the remaining 11 convicts have been sentenced to life imprisonment.
    • The Court had earlier convicted the accused under various laws including murder, sedition, and waging war against the State under the Indian Penal Code and provisions of the Unlawful Activities Prevention Act and Arms Act and Explosive Substances Act.
  9. Today the Supreme Court ordered that the money recovered from those accused of destroying public properties during the anti-Citizenship (Amendment) Act (CAA) agitations in Uttar Pradesh should be refunded.
  10. Today the Kerala High Court quoted from Shakespeare’s Othello, a play with themes of passion and jealousy, while overturning the acquittal of a man accused of killing his wife’s alleged lover.  (State of Kerala v. Rasheed)
    • The Court said that it is high time that Section 122 Evidence Act which deals with marital confidence is subjected to further scrutiny, more so in the context of changing values governing human and familial relations.
    • A Division Bench of Justices K Vinod Chandran and C Jayachandran began its judgement with this quote from the The Tragedy of Othello, The Moor of Venice by William Shakespeare.
      • “I think my wife be honest, and think she is not.I think thou are just, and think thou are not.”(Act II, Scene 3)
      • “Ay, let her not and perish and be Damned tonight for she shall not live” (Act IV, Scene 1)
    • the Court said in its judgment, “Othello’s syndrome is potentially lethal. Several murders transcending geographical barriers are rooted in this mysterious phenomenon of human mind. An accident apparent has a serpentine effervescence in the murder underneath. We, in this appeal, are called upon to test the authenticity of the Prosecution version, in the midst of inherent limitations in an appeal against acquittal.”
    • The trial court, however, found the accused not guilty of the offences alleged under Sections 302 (murder) and 506 (criminal intimidation) of the Indian Penal Code.
    • “No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative-in-interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”
    • the Court stated, “We prefer to believe in the primacy and paramountcy of truth and hence, not in the least, perplexed to vote against the continuance of the provision, as it stands now, in the statute book. It’s high time that Section 122 is subjected to further scrutiny, more so in the context of changing values governing human and familial relations,”
    • the Court said, “The learned Sessions Judge standardised the immediate reaction of an ordinary human being upon seeing an accident that he will suddenly come to the rescue of the injured. This generalisation of human conduct, according to us, is palpably wrong and legally unsustainable,”
    • The Court opined that the trial court’s judgment is manifestly wrong and, therefore, set aside the acquittal of the accused and found him guilty of offences punishable under Section 302 (murder) of the IPC. He was sentenced to life imprisonment along with a fine of ₹2 lakh, to be paid to the deceased’s family.
  11. The the Kerala High Court joined the chorus of other Constitutional courts including the Supreme Court in calling out the Central government for its inaction in filling up vacancies at various Tribunals causing irreparable hardship to litigants.  (HDFC Bank Ltd. v Debt Recovery Tribunal – I & Ors.)
  12. The Delhi High Court held that it is a detained person’s fundamental right under Article 22(5) of the Constitution that the grounds of detention order are communicated in a language understood by him/ her.  (Jasvinder Kaur v Union of India Through its Secretary Ministry of Finance, Department of Revenue and Ors)
  13. Pursuant to a Madras High Court order passed last year, the Government of Tamil Nadu recently notified a rule prohibiting police officers from harassing LGBTQIA+ persons as well as persons working for the welfare of that community.
    • “24-C. No police officer shall indulge in any act of harassment of any person belonging to the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual) + Community and the persons working for the welfare of the said community.”
    • “A specific clause is to be added in the Police Conduct Rules specifically providing that any harassment by the police, to the persons belonging to the LGBTQIA+ community and/or to the activists and NGO workers, will be treated as misconduct and will entail a punishment for such misconduct.”
  14. Today the Karnataka High Court cancelled bail which had been granted by an Additional District and Sessions Judge, Mysuru, in a dowry death case observing that the trial court failed to exercise judicial discretion and had passed perverse and capricious orders.  (Sunil Kumar v. State and Ors)
  15. Today Senior Advocate Trideep Pais rebutted the prosecution’s arguments in the Unlawful Activities (Prevention) Act case filed against Umar Khalid in relation to the 2020 Delhi Riots. (Umar Khalid v. State)
  16. Today the Supreme Court held that a noticee under the SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations (PFUTP Regulations) had the right to disclosure of material that was relevant to the proceedings against him. (T. Takano v. Securities and Exchange Board of India)
  17. Today the Bombay High Court held that disputes can be referred to arbitration even if there is fraud that has been played between the contractual parties.  (One Point One Solutions Ltd. v. Reliance Nippon Life Insurance Company Ltd.)
  18. Today the Bombay High Court asked the Central government to consider the suggestions contained in an Amicus Curiae report with respect to the Notaries (Amendment) Bill, 2021.  (Dhanlaxmi Chandu Devrukar v. The Town Planning and connected pleas)
    • “We deem it appropriate that the Registrar General of this Court forthwith forward a copy of this Order along with the report (of Amicus Curiae) dated December 9, 2021 submitted by the Learned Advocate Mr. Nausher Kohli, to the Department of Legal Affairs for their due consideration. We request the Department of Legal Affairs to give due consideration to this Order and the Report dated December 9, 2021 submitted by Mr. Nausher Kohli, Learned Advocate whilst enacting the Draft Bill,” 
    • “It has recently been observed that the Notaries have started notarizing documents from vehicles parked in a public parking lot instead of an office/chamber. It has also been observed that Notaries have been operating from public taxis around the vicinity of this Court…..which shows to what extent the legal profession has degraded causing anguish not only to the judiciary but also lowering the dignity of the profession in the eyes of general public,” 
    • Kohli along with advocate Akash Agarwal proposed the following suggestions to the Bill:
      • Use of technology: including for an updated list of registered Notaries.
      • Amend Form XV which provides for maintaining a notary register.
      • Implement practices from foreign jurisdictions: like Remote Online Notarization (RON).
      • Authenticating insertions or alterations subsequent to document being notarized.
      • Right to privacy: Protecting the confidential information in the register.
      • Mandatory issuance of receipt for fees charged by notary.
      • Fees charged should not exceed the rates mentioned in the Rules.
      • Notaries should not operate from their office and certainly not from a public or private vehicle around the vicinity of Court.

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