Today’s Legal Updates

Thursday, 24th February 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Right to Freedom of Religion

Article – 26 Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property;
(d) to administer such property in accordance with law.

Today’s Legal Updates :-

Live Hijab Case

  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.
    • Senior Advocate AM Dar argued that India is neither a Hindu rashtra nor an Islamic republic but a democratic, sovereign, secular, republic where rule of law must prevail.
    • Senior Advocate AM Dar appearing for a college student, said that wearing hijab is mandatory in Islam and public order will not be disturbed merely because a Muslim girl wears hijab.
    • He emphasised that mere wearing of hijab will not cause any public order issue warranting a restriction under Article 25(1) of the Constitution.
    • Dar demanded, “If someone desecrates image of Lord Rama or any Hindu goddess then it is public order issue. If you desecrate the image of another religion, then it hurts feeling and it can be public order. But simple covering head, how does it cause public order issue,”
    • Senior Advocate Devadatt Kamat in his rejoinder arguments, said that the State was citing Constitutional Morality to restrict choice, contrary to how the concept was used in pro-choice decisions of the Supreme Court.
    • Kamat said, “It is not a restriction on fundamental right. It is a restriction on State’s power. All the decisions – (which cited Constitutional Morality) Sabarimala, Navtej are all pro-choice decisions. Today, they are saying use Constitutional Morality to defeat choice.”
    • Senior Advocate Guru Krishnakumar, appearing for one of the respondents made his submissions before the Bench today. He argued:
      • The moment a student comes to an educational institution and partakes in secular education, any regulation which seeks to achieve non-discrimination cannot be questioned on the premise of Article 25.
      • The purpose of uniform itself is to completely remove the background of the student – his caste, colour, creed, religion are completely obliterated.
      • When dealing with such matters, Constitutional courts do not exercise ecclesiastical jurisdiction when claim of essential religious practice is made.
      • The goal of the government order (GO) is to regulate activity part of pursuing education secular activity and not to interfere with religious freedom per se.
    • Senior Advocate Kirti Singh then sought to make submissions on behalf of the All India Democratic Women’s Association (AIDWA). However, asked whether the organisation was registered.
    • Chief Justice Awasthi said, “What is the constitution of the committee which has taken the decision (to move the High Court). The resolution does not say it. You have to annex the resolution and the proceedings which disclose the constitution of the committee and the authorization of the President to file the PIL.”
    • Even as Singh claimed that the AIDWA had members who were affected by the GO and that it was a genuine party to the matter,
    • the Chief Justice said, “The petition would not be maintainable when the aggrieved persons are already before the Court.”
    • Senior Advocate AM Dar then made arguments on behalf of a student in a private institution who was denied entry for wearing hijab. Citing verses from the Quran, he submitted:
      • Hijab is mandatory in Islam. It is the last commandment from Allah. It has come in fourth hijri. By that time Quran was almost complete.
      • We have to cover the chest, it is mandatory. It is a question of life and death for us. We do not want to destroy anything secular.
      • Receiving education is also an essential part of Islam.
      • We have protection under Article 25, and also the Preamble, which emphasizes on liberty of thought, expression, belief, faith and worship;
      • Scarf is a small issue for such a big country. Our heart should be open, it should be wide. Scarf enhances reputation of the lady, it purifies and gives modesty;
      • It does not cause public order issue. It is not causing any immorality;
      •  This is not a Hindu rashtra or an Islamic republic. It is a democratic sovereign secular republic where rule of law must prevail;
      • Interim order is unconstitutional as it suspends fundamental rights. This is a question of life and death. We will have to leave our education because we cannot compromise on these principles.
    • Next, Kamat made his rejoinder submissions on behalf of the petitioners. At the outset, he argued, “I have specifically pleaded that we have been using a headscarf right from our admission and till the GO came, and we were stopped thereafter. There is no reply or rebuttal to this averment.”
    • “AG has clearly said that the 3 judgments relied by GO on hijab is not the purport of the order. He said it might have been result of over-enthusiasm by drafters and it might not have been required…this part of the GO has to go.”
    • Referring to the State’s stand that it has given CDCs the power to prescribe uniform in colleges and would not interfere in the same,
    • Kamat said, “By this GO, the superior authority says to subordinate authority, ‘you do as you want, but hijab is not part of Article 25.’ That is not permissible.”
    • “They have argued that we have not challenged 2014 circular. I do not need to challenge it. As long as circular which prescribes CDC remains marga darshak mandal, I don’t have problem. Let the CDC guide the college, the MLA can be a guiding force. But the problem is when you invest CDC with statutory functions.”
    • CJ Awasthi then asked, “How can you insist on wearing hijab in institution which has a uniform? What is this fundamental right you have?”
    • “I would like to differ slightly in approach. Before Your Lordships question me on where is my right, I would ask myself, where is the restriction, because 25(2) is very clear on what can be restricted,” he replied, adding that the right to wear hijab stemmed from the Quran.
    • “ERP is not a restriction on my fundamental right. ERP is a restriction on State’s power to interfere with a religious practice. The question which would fall first for consideration is – where is the restriction?”
    • Kamat argued, “If this rule is leading to a situation that people cannot access education of the State, it is a challengeble under Article 21A.”
    • “There is no doubt that this is an ERP. But I am also saying that the GO which puts the restriction is illegal. In the absence of valid restriction it is strictly not necessary for the Court to go into ERP. But if Court does it, then I say it is ERP.”
    • Concluding his submissions, Kamat said, “The way State has implemented a good Constitution, it has been totally frustrated. But I am equally sure we are in the hands of a Constitutional court and we will make Constitution work and justice will prevail.”
    • The Court indicated during today’s hearing that it would finish hearing the parties by Friday, February 25.
  2. Today Justice A Muhammed Mustaque of the Kerala High Court remarked that the Court will resume hearing cases physically from Monday, February 28.
  3. Today the Bombay High Court at Goa dismissed petitions seeking disqualification of 12 Members of the Goa Legislative Assembly for alleged defection from Congress party and Maharashtrawadi Gomantak Party (MGP) to Bharatiya Janata Party in 2019.
  4. A lawyer has written to the Calcutta High Court Chief Justice Prakash Shrivastava seeking directions on the administrative side banning lawyers from wearing headgear, veils or other articles of faith in the premises of the High Court.
    • “The Rules are designed to implement constitutionalism and secularism in the day-to-day perception of our courts. They fulfil a legitimate aim of ensuring faith in the judicial system. They require the advocate to leave behind narrow and petty concerns to spiritually renovate himself and to take on the mantle of assisting in the delivery of justice and appear, act and behave in a manner that befits his/her status as an officer of the court. Hence, it stands to reason that the said Rules implicitly require the advocate to take off any religious head gear when engaging in the practice of law in the premises of the courts,” 
  5. Today the Delhi High Court ordered social media platform Twitter to take down five tweets put out by historian Audrey Truschke against historian Vikram Sampath in which Truschke had alleged plagiarism by Sampath in relation to his works on Vinayak Damodar Savarkar.  (Dr. Vikram Sampath v Dr. Audrey Truschke and Ors)
  6. Today the Supreme Court dismissed the petition seeking an injunction on the release of Alia-Bhatt starrer Gangubai Kathiawadi, filed by a person who claimed to be the adopted son of the protagonist.
    • he said, “Censor certificate has been given. So for a person to say that legal right should not be exercised, the person has to show a strong reason,” 
    • “I am not defending the book Mafia Queens in any way. This book is there since 11 years. This person who claims to be a son is not aware of this and now when film is coming out he becomes aware of it.”
    • This is not an ongoing trial and she is not a victim. She is someone who has died 42 years ago. she is not a victim. every house has a picture of her.”
    • “I had once came across a trafficked woman and I still get goosebumps. A 14-year-old girl who could not manage meals was with an aunt who could not feed her. Then she was called to Mumbai for a job in a restaurant. She agreed to go to Mumbai to eat four square meals. Clients wanted to have unprotected sex with her.
    • “Your Ladyship’s point is correct, but this story is about how a lady beat the odds and this is a motivating story. Gangubai statue is there in Kamathipura and she is treated as a Devta/Devi there.”
    • “Why is there a gap of 9 months is challenging the Bombay High Court judgment? Reason will be Covid, but we all are working in Covid. This plea comes before a day before the release of the film. Satellite and third party rights have been granted.”
    • “They say movie is on book and if the book is defamatory then movie is defamatory…the book says that she was having an affair and then she was pushed into a brothel in Kamathipura. The promo also depicts this…dialogue in movie is also defamatory to the victim.”
  7. The American e-commerce giant Amazon.com and Kishore Biyani owned Future Group have been locked in a bitter legal battle for nearly 18 months. Around a dozen suits, petitions and appeals have been filed by both sides seeking different reliefs before the Singapore International Arbitration Centre (SIAC), the Delhi High Court and the Supreme Court.
  8. Today A Delhi court noted that an atmosphere of “terror and trauma” prevailing in North East Delhi in the aftermath of the Delhi Riots dissuaded the general public from recording their statements with the police while framing rioting and other charges against an accused.  (State v. Javed)
  9. Today the Kerala High Court Advocates’ Association has written to the Registrar General of the Kerala High Court raising grievances regarding the practices of online hearings at the Chief Justice’s Courtroom.
    • The Association has raised 3 major issues in the letter:
      • Denying entry to advocates whose names are not shown on the causelist. As a result, advocates, especially junior advocates attached to many offices are unable to participate in VC proceedings.
      • Delay in granting admission to the VC which has resulted in many lawyers missing their item or major portions of arguments.
      • Advocates who want to mention cases and seek early hearing or make any submissions regarding listed cases are denied the opportunity to do the same.
  10. On Tuesday the Supreme Court held that if business-to-business disputes were construed as consumer disputes, it would defeat the very purpose of providing speedy and simple redressal as envisaged under the Consumer Protection Act.  (Shrikant G Mantri v Punjab National Bank)
  11. Today during the Gangubai Kathiawadi case Supreme Court judge Justice Indira Banerjee recalled her encounter with a sex trafficking survivor who was tricked into the flesh trade under the guise of employment, it is not everyday that recounts an emotional experience in open court to substantiate how they perceive a certain community.
  12. Today the National Investigation Agency (NIA) has opposed the plea filed by three accused in the Bhima Koregaon case before Bombay High Court the seeking review of the judgment refusing them default bail.  (P Varavara Rao & Ors. v. State of Maharashtra & Anr.)
  13. Today the Supreme Court held that condition imposed by a Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is discriminatory.  (Mukesh Kumar vs Union of India)
  14. Today the Supreme Court reiterated that in a tax-related statute, statutory provisions providing for exemption have to be interpreted strictly and in light of words employed in them and there cannot be any addition or subtraction from such provisions.  (Krishi Upaj Mandi Samiti, New Mandi Yard, Alwar v. Commissioner of Central Excise and Service Tax, Alwar)
  15. Yesterday the Meghalaya High Court took suo motu cognisance of a newspaper article highlighting the prevalence of rat-hole mining in the State’s West Khasi Hills district.  (In Re Suo Motu Illegal Mining of Coal in the State of Meghalaya)
    • “It is made clear that the matter complained of needs to be looked into, without any political interference; or else, the Court may be constrained to appoint a fact-finding committee or even put a special investigation team in place or take the assistance of some agency so that the matter is appropriately and thoroughly investigated in accordance with law and the persons involved are brought to book,”
  16. Former chief executive officer (CEO) of ICICI Bank, Chanda Kochhar has moved the Bombay High Court seeking specific performance of her former employer’s contractual obligations towards benefits due to her since her early retirement from the bank on October 4, 2018.  (Chanda Kochhar v. ICICI Bank Ltd.)
  17. On Monday the Patna High Court said that officers-in-charge of police stations who refuse to register First Information Reports (FIRs) on cyber crime complaints of telecom companies would be proceeded against for contempt of court. (Shiv Kumar v. State of Bihar)
    • “It is made clear that the Officer-in-Charge of the police stations who are not registering F.I.R.s on the complaint of the telecom companies shall be proceeded against for committing contempt of court,” 
    • The Court thus asked the telecom companies to submit details of police stations and officers-in-charge who refused to register the cases. Further, the Department of Telecommunications was directed to submit a specific affidavit as to whether FIRs were being registered by telecom companies in all states across the country or only Bihar.
    • “…when cognizable offence is committed and just because of the fact that petty amount is involved, the Police cannot refuse to register the F.I.R,”
  18. Today the survivor in the 2017 actress abduction and sexual assault case questioned why Malayalam cine actor Dileep was opposed to any further investigation being done in the case in which he is an accused.
    • Senior Advocate S Sreekumar, representing the survivor, “If he(Dileep) is so confident that there is no truth to the allegations, then why not let further investigation be conducted so that they can find out the truth? That is all that I want”
    • the DGP said, “Apart from making repeated allegations that there are mala fides and that too without any material, they have no case. That is my submission,”
  19. Today Justice SS Shinde of Bombay High Court has recused himself from hearing petitions arising from the Bhima Koregaon riots which took place in 2018 after the Elgar Parishad event.
  20. Yesterday the Calcutta High Court disposed of a plea filed by Bharatiya Janata Party (BJP) candidates seeking police protection in view of alleged threats to their lives ahead of the upcoming West Bengal municipal elections.  (Chandan Jana & Ors v. State of West Bengal)
  21. Today the Calcutta High Court directed a second post-mortem to be conducted in the alleged murder case of student leader Anis Khan.  (Salem Khan v. State of West Bengal)
  22. Yesterday a Mumbai Court observed while remanding Maharashtra Cabinet Minister Nawab Malik to Enforcement Directorate (ED) custody till March 3, 2022, Sufficient time would be required to investigate proceeds of crime which traversed over the last 20 years.

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