Today’s Legal Updates

Wednesday, 23rd February 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Right to Freedom of Religion

Article – 25 Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making
any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

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 the ban on wearing hijab by certain Karnataka colleges.
    • the College Development Committee (CDC) submitted that education is secular activity in which religion has no role to play.
    • Senior Advocate Sajan Poovayya, appearing for the CDC, argued, “If they are getting public instruction from the State, they cannot insist on wearing religious attire even if they show it is essential religious practice.”
    • Senior Advocate SS Naganand, appearing for a government pre-university college, continued his arguments on whether prescription of uniform in educational institutions violates the freedom to practice religion and uniform has been compulsory in these colleges since 2004.
    • CFI said that some persons from an organisation called Campus Front of India (CFI) started going to schools, insisting that Muslim girls be allowed to wear hijab, after which the students refused to attend classes without hijab.
    • Advocate General Prabhuling Navadgi said, “The petition says the threat was that the students will be marked absent. What is the threat there? If they don’t come to school they have to be marked absent. It says threats were made to not reward internal marks, that never happened, these are bald allegations,” 
    • “A democratic body has taken the decision on it which has representatives of all. They have taken the decision that for public order in a school there should be uniformity in the attire. It is not necessary that order comes only from disorder.”
    • “See now, due to this, a right wing faction of Hindus are saying they will wear saffron scarves. Tomorrow, Mohammedan boys will say they want to wear skullcap, where does this end, are we going to polarise society like this?”
    • “The Committee is only presided by the MLA and the MLA may or may not belong to the political dispensation which is power during the relevant time. The MLA does not sit as a member of any party.”
    • “Freedom of conscience is absolute. However, the right to practice, profess to propagate, how you manifest religion is subject to Article 25(2),” 
    • Citing provisions of the Karnataka Education Act, Poovayya said that a secular outlook should be promoted in schools, and that they were moving toward a gender-neutral uniform for all students.
    • At this point, Justice Khazi asked whether he was referring to an all-girls school.
    • Poovayya replied, “It is all girls education and all of them did not insist on hijab till December 2021, when this issue erupted,”
    • Poovayya further submitted that if students are allowed to wear religious attire, the secular nature of the schools would be affected. “I have 100 Muslim children in my school. 5 want to wear hijab. If I allow them, then will it mean the remaining 95 will be considered irreligious and only those wearing hijab are religious? Then where is cohesion and public order?”
    • Poovayya asked, “I cannot permit a Hindu child to wear a religious symbol but disallow a Muslim child from wearing religious symbol. Because Muslim child is wearing hijab we now have a situation where Hindu child is saying he wants to wear saffron scarf. Where is the end to it,” 
    • “Even assuming it (hijab) is an essential religious practice, as a school, I am obligated under the Constitution to ensure that no religious symbol enters the school and I have this right under Article 25(2), especially as a public school.”
  2. Today the Karnataka High Court orally clarified that its interim order of February 10 against wearing hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in Karnataka colleges which have a prescribed uniform, is applicable only to students and not teachers.
    • This clarification was made after a lawyer pointed out to the Court today that teachers are being forced to remove their headscarves.
    • Chief Justice Ritu Raj Awasthi remarked, “The order is confined to students only,” 
    • The Chief Justice also said that its interim order will apply to degree colleges and pre-university colleges which have a prescribed uniform. “If uniform is prescribed they have to follow it whether it is degree college or government college or PU College,”
  3. Today Chief Justice of India (CJI) NV Ramana said that the Omicron variant of COVID-19 is a silent killer, and that he is taking an unusually long time to recover from the strain.
    • The CJI said this after President of the Supreme Court Bar Association and Senior Advocate Vikas Singh requested the top court to revert to full physical hearing.
    • “There is a jump of 15,000 cases now,” CJI Ramana responded when Singh raised the demand.
    • Singh said, “It is Omicron, it is much milder,”
    • the CJI replied, “It is a silent killer, you know. I suffered in first wave but recovered in 4 days, but now in this wave, it has been 25 days and I am still suffering,” 
  4. Today the Supreme Court of India’s decision to shift all judicial filings from legal paper to A4 size paper with printing allowed on both sides has saved approximately 3 crore paper sheets in two years.
    • The decision to shift from legal paper with one side printing to A4 size paper with double side printing was taken in April 2020 after a Committee of Justices S Ravindra Bhat and Hemant Gupta recommended the same.
    • Many High Courts have also moved from legal to A4 size paper for filings. These include the High Courts of Calcutta, Tripura, Kerala, Delhi, Allahabad, and Bombay.
    • three law students from an organisation called Whistle for Public Interest (WHIP) had written to then Chief Justice of India Ranjan Gogoi in October 2019 asking that steps be taken so that A4 size paper is used uniformly across courts.
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  6. The Supreme Court is slated to hear a plea by school students against holding board exams for classes 10 and 12 via physical/ offline mode.  (Anubha Shrivastava Sahai vs Union of India)
    • The petitioners have sought an alternative assessment method for upcoming board exams for classes 10 and 12 instead of holding physical exam as proposed by various State boards, Central Bureau of Secondary Education (CBSE) and Indian Certificate of Secondary Education (ICSE).
    • The petitioners have sought an alternative assessment method for upcoming board exams for classes 10 and 12 instead of holding physical exam as proposed by various State boards, Central Bureau of Secondary Education (CBSE) and Indian Certificate of Secondary Education (ICSE).
    • The petitioners pointed out that for CBSE, the board exams for classes 10 and 12 will be held in the last week of April.
    • the plea said, For ICSE and National Institute of Open Schooling (NIOS), there is no notification yet.
    • the plea highlighted the COVID-19 situation and the difficulties and pressures faced by students due to the interruptions in their schooling.
    • the petition stated, “The petitioners therefore submit that, in fact subjecting the children to write the examination and conducting the examination when the Covid-19 wave is still high, with the number of patients infected and death is rising day by day, when there are seen unprecedented mortality numbers, when the experts are predicting that third wave of resurgence likely to mostly affect children and young people, it will be violating their right to life,”
    • While education is important it is not more important than the lives and mental health of children, teachers, staff and parents of the children who will have to venture out to appear for physical exam.
    • “The students are dissatisfied by this kind of behaviour of State government and other boards and stressed and worried about their future and career,”
    • Justice AM Khanwilkar said that the plea was premature and ill-advised since the authorities were yet to decide on the rules and dates for the exam.
    • the Court said dismissed the plea, “Such kind of petitions are being filed? How can you keep on filing such petitions? Such kind of Petitions only confuse the students,” 
    • the Court remarked, “This plea is ill- advised and premature. Authorities are yet to decide the rules and dates. If the decision is not in consonance with rules then it is open to challenge,”
    • The plea apart from seeking a direction not to hold exam via physical mode, also prayed for a direction to University Grants Commission to constitute a committee to declare the date for admission into various Universities and to work out a formula for assessment of Class XII students who want to pursue their further studies in non-professional courses.
  7. Today the Central Board of Secondary Education (CBSE) will tell the Supreme Court that the board exams for classes 10 and 12 of CBSE will be held physically since COVID situation has improved and things are returning to normalcy.  (Anubha Shrivastava Sahai vs Union of India)
    • The petitioners have sought an alternative assessment method for upcoming board exams for classes 10 and 12 instead of holding physical exam as proposed by various State boards, Central Bureau of Secondary Education (CBSE) and Indian Certificate of Secondary Education (ICSE).
  8. Today the Delhi High Court sought the response of former Rajya Sabha MP and former president of Janata Dal (United), Sharad Yadav, on Central government’s plea against his continued occupation of the official MP bungalow in New Delhi.  (Shri Sharad Yadav v Shri Ram Chandra Prasad and Anr)
  9. Today the Supreme Court asked counsel appearing for Amazon and Future Group to approach the National Company Law Appellate Tribunal (NCLAT) to expeditiously dispose of Amazon’s appeal against the Competition Commission of India’s order suspending its 2019 deal with the Future Group.
    • The Court noted during today’s hearing, “The present SLP in one way connects to the outcome of the order passed by NCLAT challenging order of CCI. Thus, we ask the parties to approach NCLAT for expeditious disposal of the case.”
    • When asked about the status of the case, Senior Advocate Gopal Subramanium, appearing for Amazon, said that the appeal was pending before the NCLAT, and that an application to terminate the proceedings before the arbitral tribunal was also filed.
    • CJI Ramana then said, “If we hear you, then proceedings before the High Court will become infructuous. Why can’t we have the High Court wrap it up?”
    • Subramanium urged that the arbitration proceedings be allowed to come to an end, in the larger interests of both parties.
    • “Chief Justice has said that best practices of arbitration internationally is embedded in Indian system. So to suspend this proceeding now will render this policy a blow too,”
    • Senior Advocate Ranjit Kumar, appearing for Amazon, said, “Having decided to go to tribunal, they [Future] filed plea under Article 227 [before Delhi High Court]. What do they want and on priority? Let tribunal hear this application.”
    • Representing Future Retail, Senior Advocate Mukul Rohatgi pointed out that the Section 32 application filed for termination of arbitration can be heard only when the challenge to the CCI order is decided.
    •  CJI Ramana said, “There are two options: we keep matter pending and let High Court decide in a week’s time. If it’s against, then challenge along with that. Second option, pursue NCLAT and see if proceedings are completed.”
  10. Today the Karnataka High Court held that an Indian court can exercise jurisdiction to enforce an international commercial arbitral award rendered outside India, between parties who have no connection to India in certain circumstances.  (CTI Future Corporation v. Ducgiang Chemical and Detergent Powder Joint Stock Company)
  11. Today the Delhi High Court held dismissed a Public Interest Litigation (PIL) seeking implementation of the Whistle Blowers Protection Act, 2014.  (Dr. Mohammad Ajazur Rahman v Union of India and Ors)
    • The petitioner argued that the Act was passed by Parliament almost eight years back, but is yet to be brought into force. He added that the Act provides a framework to investigate alleged corruption and misuse of power by public servants while protecting persons who inform the public about these wrongdoings. Therefore, its implementation is important.
    • the Court noted in its order, “Law is nothing but the desire of the people. Parliament represents the desire of people. State legislatures also represent the desire of the people. It is in their wisdom to enact the law. Similarly, it is in the wisdom of Parliament and legislature to bring into force the enacted law. Thus, both the enactment of the law and bringing the same into force both are purely sovereign functions,”
  12. Children less than 12 years of age are “asexual” and normally take time to recognise that the disguised love, affection or warmth by a perpetrator is wrongful or sinful, a Delhi court observed while convicting a man for sexually assaulting a minor girl in 2017.  (State v. Mustkim)
    • “The testimony of the prosecutrix should not be appreciated from the point of view of an adult, but from the mindset of a child. Children often find it difficult to express themselves for a variety of reasons, and when someone close to the family subjects them to sexual abuse, they are reluctant to discuss it with their parents as they are unsure as to how their parents would react,”
    • The man was tried for offences under Section 6 of the Protection of Children against Sexual Offences (POCSO) Act, which provides for punishment for committing offence of aggravated penetrative sexual assault under Section 5(l) of the POCSO Act. The latter deals with penetrative sexual assault upon a child under 12 years of age more than once or repeatedly.
  13. Today an interesting turn of events, the Supreme Court asked advocate ML Sharma to file a public interest litigation (PIL) petition highlighting absence of city civil court in certain districts of Uttar Pradesh (UP).
  14. Today the Bombay High Court dismissed two petitions seeking to remove references to the area in which the film Gangubai Kathiawadi, starring Alia Bhatt, is set.  (Shraddha Amol Surve and ors v. Union of India and ors)
  15. Today the Supreme Court asked the producers of the movie Gangubai Kathiwadi whether it would be possible to change the title of the movie, in light of the several cases pending before courts seeking to halt its release scheduled for Friday, February 25.  (Babuji Rawji Shah v. Hussain Zaidi & ors)
  16. An advocate clerk has moved the Kerala High Court seeking the inclusion of advocate clerks in the e-filing procedure that has been adopted by courts across the State.  (Prathap P v State of Kerala & Anr.)
  17. Today the Supreme Court held that any default or delay in the payment of Employees Provident Fund contribution by the employer is the only sine qua non (essential requirement) for imposition of damages under Section 14B of the Employees Provident Fund & Miscellaneous Provisions Act of 1952.  (Horticulture Experiment station Gonikoppal, Coorg vs The Regional Provident Fund Organization)
  18. Today a 27-year-old man who was found guilty of rape of a 7-year-old girl was sentenced to death by a special court in Punjab under the Protection of Children from Sexual Offences Act (POCSO Act).
    • Mukesh Kumar, was a neighbour of the survivor. According to the prosecution, the accused on the pretext of buying the survivor a packet of biscuits, took her to a jhuggi owned by one of the neighbours and raped her. He then inserted a wooden stick into her private parts, resulting in the fracture of her leg, and left her bleeding.
    • After Committing of penetrative sexual assault, the second crime committed by convict of inserting the wooden stick into fragile vagina of victim resulting into fatal injuries which were declared as dagerous to life makes the offence more heinous, which itself is sufficient to prove that convict is guilty of such a diabolic act. Thus, the barbaric and horrific act of the convict which completely incapacitated the child to enjoy her woman hood is sufficient to hold that age of the accused, family background and non criminal antecedent of convict cannot be said to be mitigating circumstances,”
    • After hearing the parties, the Court found the accused guilty of rape of a minor, attempt to murder and offences under the POCSO Act, noting that “he is the accused Mukesh Kumar who is responsible for committing rape upon minor girl, and thereafter in order to gave another colour to the incident inserted wooden stick into vagina of victim and himself left the place leaving victim there to die who was bleeding profusely due to his barbaric, inhuman notorious acts.”
    • “The diabolic manner in which crime was committed leaves one startled as to the pervert mental state of the inflictor. On top of it, in order to camouflage the crime and in order to kill, after causing grievous hurt, leaving the minor girl in pool of blood left the spot.”
    • The accused was also directed to pay compensation of ₹2 lakh, out of which ₹1 lakh would be given to the survivor. Separately, given the physical and mental trauma undergone by the survivor, and in order to provide restorative and compensatory justice to her, the Court awarded a compensation of ₹8 lakh to her, which will be released once she attains 18 years of age.
  19. Today the Karnataka High Court directed the State government and the Mangaluru City Corporation to begin the work of removing legacy waste in the city, and to get financial sanction from the Cabinet for this purpose expeditiously.  (Karnataka State Legal Services Authority v. State of Karnataka)
  20. Today A Mumbai court remanded Cabinet Minister Nawab Malik to Enforcement Directorate (ED) custody for eight days in a money laundering case involving underworld don Dawood Ibrahim and his associates.
  21. Today A special court in Mumbai ordered the registration of a first information report under the Protection of Children from Sexual Offences Act (POCSO Act) against the producers of the film “Varan Bhaat Loncha Kon Nay Koncha” on a complaint alleging that the movie contains sexually explicit content involving minors.  (Seema Anil Deshpande vs Mahesh Manjrekar and Ors.)
    • “Allegations of serious nature and cognizable are levelled. They are prima-facie apparent from perusal of CD containing the trailer. There is substance in the allegations which needs to be investigated,” 
    • the trailer of the movie showed sexually explicit content involving minors. It was alleged that the trailer contains obscene abuses, violence, indecent acts by minors, and had indecent representation of women.
  22. Today the Bombay High Court directed the Brihanmumbai Municipal Corporation (BMC) to not take any coercive action against Bollywood actors Jaya and Amitabh Bachchan in relation to the road-widening issue outside their residential home at Juhu, Mumbai.
  23. Today the Bombay High Court rejected a petition challenging a Maharashtra government decision mandating all shops and establishments within the State to display their signboards in Marathi. (written in Devanagari script)  (Federation of Retail Traders Welfare Association & Anr. v. State of Maharashtra & Ors.)
    • “Marathi may be the official language of the State government, but it is an undeniably common language and mother tongue of the State. We are mindful that in some parts of the nation, there is a practice of not using any other script other than the local script. That is not the case here. No other language is prohibited or banned here. The distinction sought to be drawn between language and script is an argument of sheer desperation,” 
    • “A public purpose is sought to be achieved by the said Rule. There is a broader public purpose and rationale. …To say that there is some sort of invidious discrimination is wholly untrue. If any retailer wishes to carry out trade in Maharashtra, it shall be subject to conditions that the government seeks to impose uniformly on all. Clearly, there is no violation of Article 14 (right to equality before law) of the Constitution,” 
    • “The petition fails to recognise that this requirement is not meant to benefit retail traders, but it is meant for convenience and benefit of the workers and the public who approach them. These are persons, who in the estimation of the state government as a matter of policy, are more likely to be familiar with Marathi in Devanagari script,”
    • “Even in this High Court, we permit documents in Marathi in Devanagari although the language of court is English, unless translations are required by a particular bench or court. It is a right of litigant before this court to put documents in the court in Marathi, unless translations are sought specifically,” 
  24. Today A Telangana court has directed news portal The Wire to take down fourteen articles published on its website against COVID-19 vaccine manufacturer, Bharat Biotech International Limited.
  25. Today the Kerala High Court observed that creators or admins of a WhatsApp group cannot be vicariously held liable for any objectionable content posted by a member of the group.  (Manual v State of Kerala)

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