Today’s Legal Updates

Saturday & Sunday, 26th&27th February 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Right to Freedom of Religion

Article – 28 Freedom as to attendance at religious instruction or religious worship in certain educational institutions

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State
funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

Saturday Legal Updates :-

  1. Today the Bombay High Court rejected three public interest litigation (PIL) petitions challenging the permission granted to Lake City Corporation Ltd. to purchase lands for Lavasa Hill Station Project.  (Nanasaheb Vasantrao Jadhav v. State of Maharashtra & Ors. with connected PILs)
  2. Today the Bombay High Court said that Right to livelihood under Article 21 includes the right to live in safe buildings and houses, a statement which came in light of building collapses in Mumbai and other parts of Maharashtra.  (High Court on its own motion v. Bhiwandi Nizampur Municipal Corporation & Ors.)
    • “People losing their lives in building collapses is required to be completely obliterated. Right to livelihood includes the right to live in safe buildings and houses. …in these matters of dilapidated and ruinous buildings there is no scope whatsoever to accept the situation that the occupants live in uncertainty and risk their lives,” 
    • “In the scheme of constitutional governance, it is not possible for us to assume that a public official howsoever high or mighty or low, can remain without public accountability to people,” 
    • “This would certainly require the Court to strictly deal with such officials as the law would mandate the Court to deal with them. They ought not to be under any impression that they can evade law with impunity,” 
    • “The famous quote of Lord Atkin “power corrupts and absolute power corrupts absolutely” – ought to be realised to be untrue and something of the past in its applicability in public governance,” 
    • “Experience has shown that there are buildings of recent origin which were constructed with sub-standard material and on account of such construction were hazardous for occupation and ultimately collapsed,” 
  3. Today A Mumbai court denied bail to Akash Suyal, one of the accused in a case filed by the Mumbai Police for posting insulting statements about women on the Clubhouse smartphone app.  (Akash Rakeshkumar Suyal vs The State of Maharashtra & Ors.)
  4. The Jaipur Bench of the Rajasthan High Court quashed a first information report (FIR) against a rape-accused, finding that there was a consensual relationship between the parties. (Radhakrishan Meena v. State of Rajasthan)
    • An FIR was lodged against the petitioner for the offence of rape with a false promise of marriage.
    • The petitioner sought quashing of the FIR alleging it was “exaggerated”
    • The prosecutrix stated that she was threatened and seduced into intercourse by the petitioner on the false pretext that he will marry her.
    • The Court found that the prosecutrix was an educated woman who knew the consequences of intercourse before marriage.
    • The FIR was quashed as the Court believed this was a case of a boy and a girl having an affair, indulging into a sexual relationship and ultimately ending into a breakup.
    • Justice Farjand Ali while holding that no offence of rape was made out, took note of the fact that the prosecutrix continued to engage in a sexual relationship with the petitioner for a long period of two years.
    • This is an unfortunate but routine case of a boy and a girl having an affair, indulging in sexual relationship and ultimately ending in breakup.
  5. The Supreme Court has imposed costs of ₹5,000 on a petitioner who filed a writ petition before the top court under Article 32 challenging an order passed by the Magistrate granting bail to an accused.  (Balakram @ Bhura vs State of UP)
    • “This writ petition has been filed under Article 32 of the Constitution of India challenging the order of the Magistrate granting bail to respondent nos. 2 to 5. Firstly, we see no reason why the petitioner should have filed this writ petition challenging the order of the Magistrate directly in this Court,”
    • “Further, we also fail to understand why the judge granting bail has been impleaded by name as respondent no.6 and also the Additional District Judge, who has refused to interfere with the order passed by the Magistrate has been impleaded by name as respondent no.7,” 
  6. Yesterday the Supreme Court held that an accused is entitled to obtain copies of statements of those who are declared ‘protected witnesses’ under Section 173(6) of the Code of Criminal Procedure (CrPC) read with Section 44 of the Unlawful Activities (Prevention) Act after redaction of identities of such witnesses.  (Waheed-Ur-Rehman Parra vs UT of J&K)
    • “The objective of Section 44, UAPA, Section 17, NIA Act, and Section 173(6) is to safeguard witnesses. They are in the nature of a statutory witness protection. On the court being satisfied that the disclosure of the address and name of the witness could endanger the family and the witness, such an order can be passed. They are also in the context of special provisions made for offences under special statutes,”
    • “The occasion for the appellant/accused to come in and seek redacted statements under Section 207 of the Cr.P.C. arose when the trial was to commence and the appellant was of the view that in order to plead an appropriate defence there should be full disclosure minus the redacted portion so that the testimonies of those witnesses could be utilised without disclosing their identities or their place of residence. This is not, in our view, an exercise of the power of review but the exercise of powers at two different stages of proceedings under two different provisions,”
  7. Supreme Court judge Justice MR Shah encouraged citizens to approach payment of taxes as a duty towards the society and country rather than a compulsion. The Supreme Court Judge was speaking at the TIOL Awards and Tax Congress 2021 where he advised citizens to have an alternative perspective on payment of tax.
  8. Today the Chief Justice of India CJI) NV Ramana lamented the lack of adequate support from the government in improving judicial infrastructure in the country. mere allocation of funds will not be enough for the same and an institutional mechanism needs to be put in place for coordinating and overseeing improvement of judicial infrastructure.
  9. Today A public interest litigation (PIL) has been filed in the Delhi High Court seeking a direction to the Delhi government to prohibit the production, distribution and consumption of intoxicating drinks and drugs in the national capital.  (Ashwini Kumar Upadhyay v. Union of Indian and Ors)
    • “Petitioner submits that Delhi has a total 280 municipal wards and until 2015, there were only 250 liquor shops i.e. on an average, one liquor shop in every municipal ward and 30 wards without a single liquor shop. However, under the New Liquor Policy, State government is planning to drastically increase the number of liquor shops and it would be around three liquor shops in every municipal ward, which is not only arbitrary and irrational but also brazenly offends rule of law as well as right to health guaranteed under Article 14 and 21 of the Constitution,” 
    • “Article 47 is nevertheless fundamental and State is obligated to prohibit consumption of liquor-drugs but rather than advertising about health hazards of intoxicating drinks and drugs, State is promoting liquor consumption.”
  10. On Wednesday the Punjab and Haryana High Court observed that the government hospitals cannot deny medical treatment to individuals on the ground that they are not a resident of the area where the hospital is located.  (Arti Devi v. UT Chandigarh and Others)
    • “Petitioner cannot be subjected to discrimination only on the ground of her place of residence. That, in fact, is a direct violation of the fundamental right of the petitioner. Denying her treatment on the above said ground also violates her the right to life and liberty without there being any justifiable reason,” 
  11. The Supreme Court observed that in a recruitment process, a candidate cannot be permitted to seek redressal of grievance beyond a certain period of time howsoever genuine the issue may be, as there has to be a closure to the process.  (Sankar Mondal v. State of West Bengal and Others)
    • “In case of an advertisement dated 1999, the appellant cannot be permitted to plead that he was waiting for seven long years for getting an appointment letter and then woke up to file the OA before the State Administrative Tribunal,” 
  12. Today the Telangana High Court allowed an appeal by Alt Balaji against an injunction restraining the release of Kangana Ranaut-hosted Lock Upp in a copyright suit filed by Pride Media. (Alt Digital Media Entertainment Limited v. Pride Media)
  13. Yesterday the Supreme Court observed that in a claim for motor accident, the amount of compensation to be awarded under the heads of pain, suffering, loss of amenities and happiness cannot be calculated based on a straitjacket formula.  (Sri Benson George v. Reliance General Insurance Company Limited and Another)

Sunday Legal Updates :-

  1. The Bombay High Court Chief Justice (CJ) Dipankar Datta might have captured the emotions and plight of lakhs of people in Mumbai, when in a succinct 3-page concurring judgment, the CJ recounted the plight of and difficulties faced by people when it comes to housing and basic living amenities in India’s financial capital.  (High Court on its own motion v. Bhiwandi Nizampur Municipal Corporation & Ors.)
    • “While the affluent enjoy lavish life-styles and show-off their new expensive acquisitions, the whole lot struggling day long for securing their daily share of meal lack proper housing facilities and even the basic of civic amenities,”
    •  the judgment said, “The gap between the ‘haves’ and the ‘have nots’ is so pronounced that no matter whatever welfare measures are thought of by social, political and economic reforms, it may not be possible in the near future to achieve even a token equality,”
    • “No wonder, as far back as in 1956, a melodious duet of two extremely popular voices of Bollywood cautioned that it was difficult (mushkil) to live in (erstwhile) Bombay and that one would have to try hard to find a heart (dil) here,” 
    • “Alice would have certainly exclaimed “curiouser, curiouser”, had she descended in this wonder city, Mumbai, and noticed the stark urban inequalities resulting from the exceedingly sharp contrast between the wealthy and the poor, the opulent and the frugal,”
    • “In the garb of legislation, in a novel manner, a fraction of the population including holders of public offices have continued to prosper by achieving their goals through impure means which are nothing short of betrayal of the trust that the people of this region have reposed in those responsible for an able governance,”
    • CJ Datta said concluding his opinion, “We part with the hope and trust that respondents remaining alive to the duty cast upon them by law would not precipitate any further cause of action and thereby necessitate the intervention of this Court with more stringent directions,” 
  2. Solicitor General (SG) Tushar Mehta began his submissions before the Supreme Court on February 23 in a batch of petitions challenging provisions of the Prevention of Money Laundering Act (PMLA).
    • As per his submissions, 4,700 cases are currently being investigated by Directorate of Enforcement (ED).
    • “981 cases registered in 2021. This is a very small number of cases when compared to other developing countries such as USA, UK, China, Austria, Belgium etc.,” 
    • A total of 2,086 cases were registered in the last 5 years by the ED, when compared to 33 lakh predicate offences in the country making it only 0.06 percent of all cases.
    • “FATF gives recommendations as to how money laundering has to be stopped.There is a rating and assessment. As part of this assessment, our legal regime and our administrative regime is graded. There are 3 gradings of FATF – non-compliant, compliant and partially compliant. This grading affects credit rating, capability to raise debt from World Bank and ADB,” 
    • “So far, an amount of ₹67,000 crores is held up by the courts by granting protection against coercive actions,”
  3. In 2019, Joe Biden promised he would nominate a black woman to the Supreme Court of the United States. On Friday, President Biden fulfilled that promise, nominating the 51-year old Judge Ketanji Brown Jackson to the Supreme Court.
    • Judge Jackson currently serves as a judge on the U.S. Court of Appeals for the D.C. Circuit. She is a graduate of Harvard College and Harvard Law School and served as a law clerk to Justice Stephen Breyer, the retiring justice she has been nominated to replace. If confirmed, she would be the first black woman to serve on the Supreme Court, but in many other ways, she also has much in common with the eight justices currently on the bench. Like three of the serving justices, she attended Harvard Law School; like five of the serving justices, she clerked for a Supreme Court judge; and like seven of the serving justices, she spent time in private practice working for a major law firm. (She would also be the third Jackson to serve on the Supreme Court.) If Judge Jackson’s nomination is a break with the past in one sense, it also represents continuity in many others.
  4. The hearing before the Karnataka High Court in the hijab case concluded on February 25.

Chief Justice Ritu Raj Awasthi

To the petitioners

  1. “You people should not insist for wearing all these religious things which are not conducive. We will restrain everyone (in the interim) from adopting all these practices,”
  2. “Whether by this GO, is there any restriction on fundamental rights,” he asked Senior Advocate Devadatt Kamat who was representing one of the petitioners.
  3. “How can you insist on wearing hijab in an institution which has a uniform. What is this fundamental right you have is what we want to understand,” 
  4. “You are insisting on wearing a particular headdress in an institution which has a uniform. You have to establish what fundamental right is being infringed. Forget about what the State has said. Show right under Article 25(1),” he told Kamat during the rejoinder arguments.
  5. “You say it need not be ERP. We want to know what right has been infringed,” 
  6. “The GO does not say about hijab. It only speaks about the uniform. That is provided under the (Karnataka Education) Act,”
  7. “Can’t the college prescribe uniforms to maintain academic standards? Why can’t it be for maintaining uniformity, discipline, uniforms are necessary? It can be a part of academic standards. Why can’t it be construed as maintaining discipline and uniformity which are essential to maintain academic standards,” 
  8. “You say Article 15 prohibits discrimination on the grounds of religion. But the rule prohibits headdress to everyone, not only to one particular section,” 

To the State, respondents

  1. “What is the sanctity of College Development Committee under the scheme of the Act,” 
  2. “What is the background of the GO? What was the necessity of all this?”
  3. “The GO is innocuous. But come to the earlier part of this GO where you have said consider these judgments about hijab. We want to know the necessity of placing these judgments (in the GO)… What was the necessity to say all this?” 
  4. “So, if the College Development Committee permits students to wear hijab, you have no objection?” 
  5. “What is its import? What is your stand? Can hijab be permitted in institutions? If institutions permit, then you don’t have any objection?” 
  6. “We will take a decision as and when such a situation comes up,” 
  7. “You have to take a stand. It was argued by them to permit hijab of same colour of uniform. They have also argued that dupatta which is part of uniform be permitted to be worn above their heads? So can that be permitted?” 
  8. “The stand of the State is that anything which introduces religious aspect should not be there.. My submission is to leave it to the institution,”
  9. “So your stand is State has not said anything but has left it to the institution… So should Court now go into Article 25 violation etc if that is the stand of the State govt… You are saying college committee will decide. So are we supposed to see what they have done,”
  10. “Since they are not statutory bodies, can they be regulated by court order,” 
  11. “There was one argument by Sr. Adv Yusuf that even if it not essential religious practice, then also stopping hijab would violate Article 25(1) as it is also freedom of conscience.”

Justice Krishna S Dixit

To the petitioners

  1. “Is essential religious practice absolute or susceptible to regulation by law,” he asked Senior Advocate Devadatt Kamat.
  2. “Are not MLAs aware of Constitutional provisions? They will function according to it,”
  3. “Please kindly read, kindly do not assume so many things. It says X,Y,Z shall be members. Where is power to MLA (alone),” 
  4. “Can you give one judgment of High Courts or the Supreme Court that popular representative cannot be part of such committee,” Justice Dixit told Senior Counsel Kamat.
  5. “You can’t read GO translations like statutes of Westminster. Common sense has to be applied…We are interpreting a GO. We cannot interpret a term in GO based on what is used in Constitution,”
  6. “What is this police powers. In police and military, I can understand calling it police powers. Prescribing it in educational institutions cannot be termed as police power. It is parental power. Judicial opinion is also contrary to what you are saying,” 
  7.  “If a girl belonging to another community suffers from alopecia, and if she wears a headscarf she will not be permitted.”

To the State

  1. “Their (petitioners’) argument was that MLA is a political character. Should that character be involved in the administration of an institution,” he asked AG.
  2. “If the MLA and his nominee are holding president and vice president positions in the CDC, what role do the others have to play,” 
  3. “How to ascertain conscience? I say saluting a symbol is contrary to my conscience?”
  4. “KT Shah and KM Munshi were against inclusion of conscience. Then Dr. BR Ambedkar suggested it because he said there are persons who do not believe in the existence of God or religion like Charvakas,” 
  5. “The secularism which the makers of our Constitution envisaged is not akin to the American Constitution. It is not a wall between church and government. We oscillates between ‘Sarva Dharma Samabhava’ on one hand and ‘Dharma nirapekshata’ on the other,” 
  6. “Our Constitution has not enacted what Karl Marx said, ‘that religion is the opium of the masses“
  7. “If in Hindu marriage, we hold tying of Mangalsutra is essential, it does not mean all Hindus in country should compulsorily wear Mangalsutra. We declare legal position and leave it there,” 

Justice JM Khazi

Justice Khazi was largely silent through the hearing.

  1. Is Essential Religious Practice also applicable to freedom of conscience,”
  2. “Is this an all-girls institution or a co-ed school,” she asked to which Poovayya replied that it is an all-girls institution.

Legal Prudent Fraternity