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SC PASSES INTERIM ORDER ALLOWING WOMEN TO APPEAR FOR NDA EXAM, SLAMS ‘GENDER DISCRIMINATION’

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SC Passes Interim Order Allowing Women to Appear for NDA Exam, Slams 'Gender Discrimination'

While issuing the order, the court criticised the Army for not permitting women to take part in the NDA exam.

The present public interest petition raises the issue of violation of Articles 14, 15, 16 and 19 of the Constitution of India by denying the opportunity to eligible and willing female candidates to join the National Defence Academy.

The Supreme Court on Wednesday passed an interim order to allow women to take the admission exam to National Defence Academy (NDA), even as the Centre said women cannot claim violation of any fundamental right for being denied entry as the male cadets trained there do not have any automatic advantage in future career advancement prospects over the women whose only route to enter the Army is by recruitment through short service commission.

The result would be subject to final adjudication of the petitions. A division bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy passed the interim order in a writ petition filed by Kush Kalra seeking permission for women candidates to appear for the NDA exam.

While issuing the order, the court criticised the Army for not permitting women to take part in the NDA exam. When the Army’s counsel submitted that it is a policy decision, the top court said that the said policy decision was based on “gender discrimination”.

The present public interest petition raises the issue of violation of Articles 14, 15, 16 and 19 of the Constitution of India by denying the opportunity to eligible and willing female candidates to join the National Defence Academy and afford them a chance to enrol, train and develop themselves in the National Defence Academy into future leaders of the Indian Armed Forces.

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Case Summary

Swapnil Tripathi & Ors VS Supreme Court Of India & Ors

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This Case Summary is written by Pragati Singh, a student at Law College, Lucknow

SYNOPSIS 

The present case brought a very prominent but undeterred issue in disseminating the judgements which bind the whole territory. Moreover, the advent of pandemics and recent changes in the functioning of Courts makes this judgement more cardinal. Though the judgement is highly praised, it still has some inadequacy. The petitioners approached the Supreme Court of India with the request of making court proceedings available to litigants, advocates, students of law and the general public keeping in mind the Right Of Access to Justice and heavily packed courtrooms on miscellaneous days. 

FACTS

The petitioners and interventionists under Article 32 have sought a declaration that the Supreme Court case proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live-streamed in a manner that is easily accessible or public viewing. 

Further, the petitioners sought a proper and balanced regulatory framework before the concept of live streaming of the Court proceedings. Further, guidelines to enable the determination of exceptional cases that qualify for live streaming. 

Petitioners, to corroborate their claim, have relied on a nine-judge bench of the Apex Court in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors. which held that Article 19(1)(a) included journalists’ right to publish a report of the proceedings which they had witnessed and heard in Court. 

In the abovementioned case, the Court emphasized about the efficacy of open trials for “upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support”. 

ISSUES 

Whether live dissemination of proceedings should be introduced with the aid of Information and Communication Technology (ICT) and if so, under what conditions and exceptions? 

CONTENTIONS 

The petitioners submitted that the Right Of Access To Justice under Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings. Live proceedings will educate public at large about the issues which come up for consideration before the Court on real time basis.

As no person can plead ignorance of law, there is corresponding obligation on the State to spread awareness about the law and the developments including the evolution of the law which may happen in the process of adjudication of cases before the Court. 

The right to know and receive information, is a facet of Article 19(1)(a) of the Constitution and the public is entitled to witness Court proceedings involving issues having an impact on the public at large or a section of the public.  

Litigants involved in large number of cases pending before the Courts throughout the country will be benefitted if access to Court proceedings is made possible by way of live streaming of Court proceedings. Hence, it will increase productivity and save time. 

Article 145(4) of the Constitution states that pronouncements of judgments by the Supreme Court shall be made in open Court. The concept of “open Court hearing” can be traced to Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC). 

Live streaming of Court proceedings with the use of technology is to “virtually” expand the court room area beyond the physical four walls of the court rooms. It will epitomize transparency, good governance and accountability, and will accommodate a large number of viewers to witness the live Court proceedings. 

Publication of court proceedings of the Supreme Court is a facet of the status of the Court as a Court of Record by virtue of Article 129 of the Constitution. 

JUDGEMENT 

Justice Khanwilkar delivered the majority judgement on behalf of himself and Chief Justice Dipak Misra. Justice Chandrachud delivered a concurring judgement. 

The Court admitted looking up to proposal of Advisory Council of the National Mission of Justice Delivery and Legal Reforms to initiate audio video recording on an experimental basis in the Courts. Policy and Action Plan Document for Phase II for the e-Courts Mission Mode Project proposed audio video recording of Court proceedings but was deferred as it required consultation with Hon’ble Judges of the Supreme Court and the High Courts. 

MAJORITY JUDGEMENT 

The Court agreed with the comprehensive guidelines for live streaming of Court proceedings suggested by the Attorney General Shri K.K. Venugopal. 

The project of live streaming on the “internet” and/or on radio and TV universally by an official agency, such as Doordarshan, will be implemented in phased manner, with safeguards such that it does not interfere with the administration of justice of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses. 

The project will be executed in phases, before the commencement of first phase formal rules will be framed by the Court to incorporate the recommendations made by the learned Attorney General. 

The Court laid down measures for efficient management of the project such as; (i) appointment of technical committee, (ii) specialist video operator(s), (iii) focus and direction of the camera(s), (iv) case management system, (v) copyright of the Court over broadcast material, (vi) reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification rights and its liabilities. 

The Court reiterated that the Supreme Court Rules, 2013 will be amended to provide for the regulatory framework. Therefore, accepted the PIL in larger public interest so as to uphold the constitutional rights of public and the litigants. 

CONCURRING JUDGEMENT 

The Court addressed the importance of “principle of open justice”. Drawing a link between open justice and democratic values, R (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs for Foreign and Commonwealth Affairs was cited. 

Open courts allow the public to view courtroom proceedings which is salient feature to maintaining public confidence in the administration of justice. Also, keeps a check on the process of adjudication in judicial proceedings.

Open courts foster public confidence by allowing litigants and public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner. To preserve the rule of law public confidence in the judiciary is crucial. 

All courts in India are open to the public except when the administration of justice requires public access to the court to be restricted. The concept of open court and access to justice was reinforced in majority decision of nine-judge bench in Naresh Shridhar Mirajkar v. State of Maharashtra. 

Again, in Olga Tellis v. Bombay Municipal Corporation value of hearing and principle that justice must also be seen to be done was reiterated. In Life Insurance Corporation of India v. Prof. Manubhai D. Shah Justice Ahmadi dwelt on the significance of disseminating information in a democracy. 

The essence of open courts is diminished as large segment of the society rarely witness court proceedings. This might be due to poverty, illiteracy, distance, cost and lack of awareness. Litigants depend on information provided by lawyers; others depend on the information provided about judicial decisions in newspapers. 

Taking technological developments into consideration the Court in Krishna Veni Nagam v. Harish Nagam put forward the use of video conferencing for certain cases. 

Further, means and ends of technology and its implementation to fulfil the objectives of e-Courts Project were widely elaborated. Functions and application of National Judicial Data Grid and platforms created for service delivery like, e-Courts Portal, e-Courts Services mobile app, SMS Push/Pull, Automated E-Mails, Touch Screen Kiosks and Service Centre, E-Payment and E- Filing database were detailed. 

Reasoning as to why live-streaming will be beneficial to the judicial system were distinctly laid down and compared with countries across globe. A pilot project of live-streaming of national and constitutional importance for about three-months was suggested. 

The Court comprehensively laid down kind of matters to be live-streamed as a form of Model Guidelines for broadcasting of the proceedings. It further laid down manner of live streaming, technical specifications for live-streaming, communications that shall not be filmed, archiving rights and facilities and broadcast room. 

ANALYSIS 

The judgement starts with submission by the petitioners, recommendations by the learned Attorney General for India, comparative study of Courts of countries across the globe and elaborative guidelines by the Court. By means of live proceedings in the absence of official transcription, recordings will serve as oral transcripts. Dissemination of live proceedings flows from Principle of Open Court, Right to Know and Right to Freedom of Speech and Expression. The judgement serves the means of transparency in Judiciary, it being the most trusted body which has been ascribed with the responsibility of keeping a check on other bodies. 

Appreciation Of The Judgement 

The judgement deems fit in taking cognizance of the matter of disseminating Right of Access to Justice which includes Right to Access Live Court Proceedings. Both majority and concurring judgement distinctively laid down guidelines, procedure, application, prevention and precautions to be taken during live proceedings. 

Criticism Of The Judgement 

  • TEST OF ALL TIMES

The advent of pandemic brought even Courts to a still but technology came as a rescue apparatus and aided the process of adjudication. After being restricted to judge, courtroom stakeholders and functionaries for a prolonged period in a very first move by Calcutta High Court, immediately after lockdown, the Kerala High Court live-streamed its proceedings. In June 2020, Delhi High Court in its highly appreciated move allowed public to witness live court proceedings. When the Supreme Court started hearing matters via video conferencing, even the Supreme Court Bar Association raised a demand for live-streaming the hearing. 

To further the ends of justice and legitimize the present case and Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Ors., live streaming of video conferences shall be done at earliest. 

Though, in a recent move, Chief Justice N. V. Ramana in a virtual address launched an official Supreme Court mobile application which would aid journalists to view the Supreme Court’s witness virtual proceedings. However, currently the application is temporary and “only” devices registered with the Public Relations Office would be able to access links through it. Thus, the judgement fails to pass the test of all time. The Court, abiding by its own judgement should make the virtual proceedings available to public also. The Chairman of e-Committee of the Supreme Court delivered the concurring judgement and therefore, it becomes more pertinent to take cognizance of the ‘Principle of Open Justice’ which seems to be missing in these extraordinary times. 

  • THE MISSING ELEMENT 

To further Right of Access to Justice, transparency under the ambit of Article 129 of the Constitution which allows Supreme Court to publish court proceedings so that “acts and proceedings are enrolled for perpetual memory and testimony”, along with live proceedings and its archives, written briefs by the Counsels can be uploaded on a database. 

The Court may decide the exceptions in case of written briefs in a similar manner like broadcasting of cases as live proceedings. Written briefs shall be voluntary in nature and subject to concerns of privacy, confidentiality of witnesses and litigants to preserve and protect the sentiments of public at large. Publication of written briefs on public domain will serve the purpose of comprehensive understanding of the case. Further, the Court may make publication of briefs compulsory for the cases at are of utmost public importance and concern.  

It is suggested with the idea of educating the general public at large about the cases going on in the Courts of Law that stand as precedent and affect lives of each citizen and non-citizen. Publication of written brief will assist understanding of subsequent cases and interpretation of law as per the needs of the society. Moreover, as judgements too present arguments in a concise manner and case files are not easily accessible, written briefs will serve as an aid for the practising litigants and students of law. 

CONCLUSION 

Such a technology can revolutionize Indian courts indeed; but we should be wary about the fundamental rights of every citizen and Indian constitutional framework. Even in the remotest of areas, the Supreme Court of India has triumphed in its duty to uphold the flag of Right of Access to Justice. In both majority and concurring judgement, the Court enacted elaborative guidelines over the kinds of matter to be live-streamed, manner of live-stream, technical specification, archiving and other miscellaneous broadcasting rules. Hence it becomes apparent from the judgement that even the Highest Court of Appeals of India, which shoulders the burden to keep a check on the other organs of the state, desires transparency and scrutinization for the benefit of every citizen. 

Case Summary

SHAYARA BANO V. UNION OF INDIA AND ORS (2017) 9 SCC 1

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This Case Summary is written by Lavanya Ajaykumar Panicker, a student at DY Patil Deemed To Be University School of  Law, Nerul, Navi Mumbai

SYNOPSIS

“The Triple Talaq Bill is not about politics but empowerment and justice for women. This bill is not about any specific religion and community. The bill is about humanity and justice” – Union Law Minister Ravi Shankar Prasad

The whole case commentary of Shayara Bano v. Union of India and Ors is a landmark case examines the case in which a constitutional court overturned a 1,400-year-old tradition with a 3:2 majority. The custom of triple talaq, which allowed a Muslim husband to give his wife an instant and irreparable divorce, was declared unlawful. The current decision takes into account a slew of earlier cases in which this problem has been challenged. However, the constitutional legitimacy of Triple Talaq has never been questioned before a Constitution Bench of five Supreme Court judges. Another unique feature of the whole case was that the minority ruling, in the interest of justice, enjoined the enjoyment of Art. 25 under Art. 142 of the Constitution. Even if the Court was divided on the law, it was adamant about ending the antiquated and disgusting practice that even Islam despises, even though the degree of transformation this ruling would bring about is unknown.

BACKGROUND

“Triple Talaq is not integral to religious practice and violates constitutional morality.”

The Supreme Court’s 5 Judge Bench issued its judgement in the Triple Talaq Case on August 22, 2017, ruling the practice unconstitutional by a 3:2 majority. Shayara Bano’s was Rizwan Ahmed’s wife for 15 years. He divorced her in 2016 by an instantaneous triple talaq called ‘talaq -e biddat’ and was subsequently given a ‘Talaqnama.’ She asked the Supreme Court to uphold three practises talaq-e-biddat, polygamy, and nikah-halala unconstitutional since they contradict Articles 14, 15, 21, and 25 of the Constitution. On February 16, 2017, the Court requested reasoned responses from Shayara Bano, the Union of India, different women’s equality organization, and the All-India Muslim Personal Law Board (AIMPLB) on the issues of talaq-e-bidat, nikah-halala, and polygamy.

FACTS OF THE CASE

“In the name of empowerment, you (the government) have given nothing but a criminal case to women…the aim of the bill is not to empower Muslim women but to penalise Muslim men” -Congress MP Sushmita Dev

Triple Talaq is not accepted by all Muslim schools of thought; only the Hanafi School of Sunni Islam considers it to be “permissible even if immoral.” Sarabai v. Rabaibai, a case decided five years before the Muslim Personal Legislation Sharait Act 1937, found that “it is a good law, but terrible is philosophy.” Justice Krishna Iyer, on the other hand, was the first to express worry about this habit.

Shayara Bano filed a petition with the Supreme Court, asking for a writ pronouncing the divorce void ab initio since it infringed on her constitutional freedoms. As a result, the constitutional legitimacy of Triple Talaq was brought into doubt before a Supreme Court Constitution bench of five judges comprising of Chief Justice JS Khehar, UU Lalit, RF Nariman, Justice Kurian Joseph, and Abdul Nazeer. In two Guwahati High Court judgments, Justice Baharul Islam dismissed the claim that triple talaq was legal even if it was logically sound. Various judgements in favour and against this tradition were issued during the next two decades. One of the most major matters was Shamin Aru v. State of Uttar Pradesh in 2002, which laid forth the requirements for a legitimate talaq. Although it did not explicitly address the triple talaq, it did engage in a discussion over what constitutes a lawful talaq. This case was eventually cited as a binding precedent to establish why triple talaq is unconstitutional.

Finally, in 2015, two supreme court judges acknowledged the need for it when addressing with Hindu women’s equality to coparcenary property and filed a Suo Moto writ suit.

ISSUES RAISED

“Irrespective of faith, women inherently do not want to divorce without a cause. Be it a Christian, Hindu, and Muslim, women mostly want to save their marriage. Men, on the other hand, have been seen to divorce women over most trivial cases. Men cannot be given supreme right to summarily divorce his wife and abandon her.” -BJP MP Meenakshi Lekhi

Here on matter, there are three judgments: Minority Judgments, written by CJI Khehar and J. Nazeer; two Majority Judgments, one written by Kurian J. and the other authored by Nariman Jon on behalf of himself and Lalit J. The issues in the case are laid out in a methodical manner on, but for the purpose of brevity and clarity, we’ll combine them and simplify them to the following:

  1. Whether the practice of talaq-e-bidat (specifically – instantaneous triple talaq) an essential practice of Islam?
  2. Whether the practice of Triple Talaq violates any fundamental right and is in accordance with part III of the constitution of India?
  3. Whether the practice of ‘Triple Talaq’ is protected bb the virtue of Article 25 of the Constitution of India?

FINDINGS AND REASONING

The court said the practice is “unconstitutional”, “arbitrary” and “not part of Islam”.

  • Talaq-e-biddat is an irrevocable way of declaring Talaq or divorce, by either saying it three times in a row or by saying it once and for all, that is I Talaq you irrevocably. This type of Talaq is distinguished by the fact that it takes effect instantly and is irreversible. Furthermore, Triple Talaq can only be used by a husband towards his wife, not the other way around. The Quran condemns the practise of Talaq, but it condemns even more the irreversible and arbitrary form of divorce in which the husband is not required to offer a cause for the divorce and in which the couple is not allowed to reconcile. Furthermore, Justice Kurian J relied on these cases: Shamim Ara, Masroor Ahmed, and Jiauddin Khan v. Anwara Begum by Najarul Islam J in determining that Triple Talaq is unIslamic. The essentiality test identifies if a behaviour is a necessary element of one’s religion. CJI Khehar and Justice Nariman each took a different approach.

CJI Khehar cited the Sardar Syedna Taher Saifuddin Saheb case, which stated that whether a practise is necessary or not must be determined from the perspective of the members of that community, while Nariman J. cited Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, which stated that whether a practise is essential or not must be determined from the perspective of the members of that community. According to this definition, an essential practise is one that is based on the religion’s basic ideas; it is a bedrock upon which the religion’s edifice is constructed, without which the religion’s intrinsic nature would alter. It is a permanent and necessary component of the religion that cannot be removed or added later. As a result, it would be ridiculous to claim that what is immoral in one group is equally important in another.

  • It was underlined that every citizen’s fundamental right to equality, guaranteed by Article 14 of the Constitution, must be construed to include equality among women of diverse religious groups. Gender equality, equity, and justice, it was argued, were ideals that were inherently entwined within the precedents incorporate to everyone. The conferral of socioeconomic status predicated on patriarchal structures, which places womenfolk at the vulnerability of men, cannot be supported within the ambit of Part III of the Constitution’s fundamental rights. Articles 14 and 15 of the Constitution, it was argued, ban sexual discrimination in addition to equality. Discrimination on the basis of sex was said to be specifically forbidden within Article 15. It was argued that a woman’s right to human dignity, social regard, and self-worth were essential aspects of Article 21’s right to life. Gender balance was argued to be a constitutional aim envisaged by the Constitution’s authors. In response to a question on Article 51A(e) of the Constitution, it was stressed out that one of the proclaimed fundamental tasks included in Part IV of the Constitution was to ensure that women were not exposed to disparaging behaviors that harmed their dignity. Gender parity and women’s dignity were emphasised as quasi. It had already been pointed out that women made up half of the country’s population, and that inequity against women must imply broad gender discrimination, and so the practise is in violation of Part III of the constitution.
  • In terms of religious characteristics, Justice Niraman did not agree that it would be protected by Article 25 since it only protects activities that are an important part of the religion, which many academics and commentators on Sharia have stated is not the case. Although analyzing triple talaq, particularly the religious side of the case, Justice Joseph, while agreeing with Justice Niraman, chose a different path to reach the same conclusion. It argued with Justice Niram that courts should not make religious decisions. In fact, Justice Joseph goes so far as to declare that where a private law is ambiguous on a specific subject, it is up to the court to determine what the legislation actually means. As a result, the court in this case must decide what the provided circumstance of the particular practice or custom is because no one else can. He examined the issue entirely from a cultural perspective, ignoring the constitutional component since he believed that only the legal sanity of triple talaq in Muslim personal law remained to be decided.

CONTENTIONS

After examining all of the official testimony, the Supreme Court divided them into two primary issues:

  1. Is instant Triple Talaq a significant holy practice of Islam? and Is instant Triple Talaq an essential religious practice of Islam?
  2. Is Triple Talaq infringing on the Indian Constitution’s Fundamental Rights?

The subject of whether the Triple Talaq is vital to religious practise arose because the Hon’ble Apex Court cannot dispute or modify any religious practise if it is a significant religious practise. So, if the contested activity is not a fundamental religious practise, the Supreme Court can rule on it and either repeal, amend, or construct it.

CRITICAL ANALYSIS

It is “manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”.

The Shayara Bano v. Union of India judicial decision has become a watershed moment in Indian judicial history. Therefore, with this decision, the Supreme Court of India recognised by a majority that, in the event of a disagreement, the basic rights enshrined in the Indian Constitution take precedence over the practices outlined in the Personal Laws. It is critical to understand that the practise of Instant Triple Talaq was not a traditional custom like the other forms of values that have been observed since Islam’s foundation. It was a later addition, resulting from a departure from the original procedures. As a result, the Apex Court’s Hon’ble Judges were correct in declaring this activity to be a non-essential religious practise under Shariat Law.

It is important to highlight that by ruling Talaq-e-Biddat to be illegal, the Hon’ble Apex Court has safeguarded Muslim women’s basic rights who have been subjected to the wrath of this practice. The country was able to rid itself of yet another societal problem as a result of this ruling.

However, the fact that cases of Triple Talaq have been reported even after this ruling demonstrates a lack of legal understanding among the general population. As a result, once a judgement is rendered, legal knowledge about it should be widely disseminated, and individuals should be made aware of the consequences of failing to comply with the decision. Everyone should be aware of their rights, as well as their obligations and duties.

FINAL VERDICT

Eventually, the Hon’ble Supreme Court, by a 3:2 majority, ruled the practise of Instant Triple Talaq to be unconstitutional and instructed the Parliament to adopt legislation in this respect. It cleared the path for the Muslim Women Protection of Rights on Marriage Act, 2019, to be passed in July of this year. It ruled Triple Talaq to be invalid and illegal, whether in writing or electronic form.

CONCLUSION

“Implementing the Triple Talaq Bill in its current form will be a disaster as many men, fearing criminal prosecution, may simply abandon their wives rather than divorcing them.” -BJD MP Rabindra Jena

This judgement is a watershed moment in the protection of women of minority religions in a country whose personal laws aren’t in line with core constitutional rights. The measure not only makes triple talaq illegal, but it also punishes men who seek to desert their spouses through it. The ruling is a real illustration of how democratic ideals like as equality, liberty, and endless others would not be stifled by any worldview, whether religious or not.

Legal News

“Can’t keep him in jail even for a day:” Supreme Court orders release of activist charged for FB post criticising use of Cow dung as COVID cure

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"Can't keep him in jail even for a day:" Supreme Court orders release of activist charged for FB post criticising use of Cow dung as COVID cure

Manipuri activist Erendro Leichombam was booked under the National Security Act and kept in preventive detention for a Facebook post criticising BJP leaders for advocating cow-dung and cow-urine as cures for COVID.

The Supreme Court on Monday ordered the release of Manipuri activist Erendro Leichombam, who was booked under the National Security Act (NSA) for a Facebook post criticising Bharatiya Janata Party leaders for advocating cow-dung and cow-urine as cures for COVID.

A Bench of Justices DY Chandrachud and MR Shah said that the person cannot be kept in jail even for a day for such an act.

“He cannot be kept in jail even for a day. We will order his release today,” said Justice Chandrachud.

Solicitor General Tushar Mehta, appearing for the government, told the Court that he will take instructions and requested that the matter be listed tomorrow but the Bench remained adamant that it will grant interim relief today.

The Court the proceeded to pass the order releasing him.

“We are of the view that continued detention of the petitioner would be a violation of right ti life and personal liberty under Article 21. We accordingly direct that the petitioner shall be released forthwith subject to interim directions of this court and subject to further orders and him filing a personal bond of Rs. 1,000,” the Court ordered.

The order has to be complied with on or before 5 pm today, the Court added.

Leichombam, who holds a postgraduate degree in public administration from Harvard University and is a former associate of activist Irom Sharmila, had for long spoken against state repression and militarisation, according to reports.

The plea filed in Supreme Court by his father, L Raghumani Singh through advocate Shadan Farasat stated that the detention of the activist is a reprisal for his criticism against Bharatiya Janata Party leaders for advocating cow-dung and cow-urine as cures for COVID.

“Erendro, a Manipuri political activist, has been preventively detained solely to punish him for his criticism of Bhartiya Janta Party (“BJP”) leaders for advocating cow-dung and cow-urine as cures for COVID,” the petition said.

It is a shocking instance of misuse of preventive detention law to stifle completely innocuous speech that is fully constitutionally protected and was made in public interest, the petition further stated.

It was also submitted that the detention of the activist was in contempt of the April 30, 2021 order of the Supreme Court in the suo motu case of COVID-19 in which a Bench headed by Justice DY Chandrachud had observed that no one should be punished for critiquing COVID policies over social media.

Legal News

Supreme Court Takes Note of UP Govt’s Decision to Allow Kanwar Yatra

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The Supreme Court on Wednesday took suo motu cognisance of news on Uttar Pradesh government’s decision to allow the Kanwar Yatra amidst the COVID-19 pandemic and sought responses from the state as well as the Centre on the matter.

The court took note of a report published in The Indian Express newspaper on Uttar Pradesh going ahead with the religious festival even though Uttarakhand had cancelled it.

“We read something disturbing in The Indian Express today that the state of UP has chosen to continue with the Kanwar Yatra, while the state of Uttarakhand with its hindsight of experience, has said that there will be no Yatra,” Justice R.F. Nariman, who was heading the bench, told the Solicitor General.

The “hindsight of experience” ostensibly referred to the Kumbh Mela held in March and April, in Uttarakhand, where millions gathered for dips in the river at a time when cases of COVID-19 were rapidly rising in the second wave of the pandemic.

Justice Nariman referred to a statement by Prime Minister Narendra Modi on the impermissibility of compromises on COVID-19 containment.

“The citizens of India are completely perplexed. They don’t know what is going on. And all this amid the Prime Minister, when asked about a third wave of COVID striking the nation, saying ‘we cannot compromise even one bit’,” the bench said.

It issued a notice to the Centre and the state governments of Uttar Pradesh and Uttarakhand and posted the matter for hearing on Friday.

“We wish to know what the stand of the respective governments is,” said the bench also comprising Justice B.R. Gavai.

“We want them to file an early response so that the matter can be heard on Friday,” the top court said.

The Adityanath government on Tuesday allowed the yatra from July 25 despite concerns raised from various quarters over the risk posed by such events in triggering a possible third wave of COVID-19.

The Indian Medical Association had expressed concern on July 12, over governments and people getting complacent and engaging in mass gatherings without following COVID-19 protocols, saying these events are potential super spreaders for a third wave of the pandemic.

The Uttar Pradesh chief minister has said that only a minimum number of people would be allowed to participate in the annual Kanwar Yatra and said that “strict implementation of COVID-19 protocol” will be implemented.

Every year, tens of thousands of ‘kanwariyas‘ (devotees of Lord Shiva) from northern states travel on foot or by other means to collect water from River Ganga at Haridwar to offer at Shiva temples in their areas as part of the yatra.

Uttarakhand Chief Minister Pushkar Singh Dhami said a day ago that though “Kanwar Yatra is part of sanatan culture, saving lives in the time of the pandemic was paramount.”

Legal News

Court has to command respect and not demand it: Supreme Court (again) deprecates practice of summoning government officers to court

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The Supreme Court has yet again deprecated the practice of summoning public officials to court, stating that “a practice has developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure.” (State of UP vs Manoj Kumar Sharma)

A Bench of Justices Sanjay Kishan Kaul and Hemant Gupta said that courts have to command respect and not demand it and respect towards the Court is not enhanced by calling government officers to the court.

“The dignity and majesty of the Court is not enhanced when an officer is called to court. Respect to the court has to be commanded and not demanded and the same is not enhanced by calling public officers,” the top court said in its judgment.

The Court further noted that the presence of public officer comes at the cost of other official engagement demanding their attention. Sometimes, the officers even have to travel long distance, it added.

The observations made in a judgment delivered on a plea by a medical officer who was posted from Uttarakhand to Uttar Pradesh. However, the person did not join the service at Badaun in Uttar Pradesh and instead insisted on being posted at Bijnore or Ghaziabad.

After a addressing a letter seeking to be posted somewhere else, he did not join service in Badaun in 2003. Thereafter the circle of litigation for back wages, contempt and non-joining of services began.

In one such plea before the High Court, when an action against the appellant was stayed, the authorities had initiated contempt action against him since he did not join duty.

The Allahabad High Court had then called Secretary, Medical Health and sought his attendance “in person.”

This, the top court, noted was “disturbing.”

It said that a practice has developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure.

“The line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers and in a way pressurizing them to pass an order as per the whims and fancies of the Court. The public officers of the Executive are also performing their duties as the third limbs of the governance,” the apex court said.

It further stated that the actions or decisions by the officers are not to benefit them, but as a custodian of public funds and in the interest of administration, some decisions are bound to be taken.

“It is always open to the High Court to set aside the decision which does not meet the test of judicial review but summoning of officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words,” the Bench said.

The Court, therefore, reiterated that public officers should not be called to court unnecessarily.

The Supreme Court also upheld the decision of the State to not pay him back wages since the medical officer “could not have dictated the place of posting without even joining the place where he was first posted.”

Opportunities

Research Assistantship With Supreme Court Committee: Apply Now!

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About the Research Assistantship with Supreme Court Committee

The opportunity of Research Assistantship with the Supreme Court Committee on Prison Reforms is a research-based position formed by justice Madan Lokur and headed by Justice Amitava Roy.

The TOR is quite extensive. Primarily the Committee is looking into reforms in the area of women prisoners and their children, problems of overcrowding in prisons, rehabilitation and reintegration of offenders, issues of staff and the juvenile justice system.

Vacancy

2

Eligibility

Law students and legal professionals are eligible for this research assistantship position.

Application Procedure

Interested Candidates are requested to mail their CVs to avnibahri@gmail.com

Contact

For any queries, you can DM Avni Bahri.

Legal News

Delhi High Court seeks response from Central govt, Facebook, Instagram on plea against objectionable Instagram posts on Hindu gods, goddesses

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A Bench of Justice Rekha Palli sought responses from the Central government, Instagram, and its owner Facebook in the petition preferred by Advocate Aditya Singh Deshwal.

As per the petitioner, the uploaded content not only had abusive language with respect to Hindu gods and goddesses. but also showed vulgar representations of them in the form of cartoons and graphics. The petitioner, however, submitted that the issue of compliance with the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 by Instagram was yet to be examined. He thus prayed for a direction to Instagram to ensure the implementation of the Rules in its true letter and spirit.

A direction was also sought to Instagram to preserve all the details associated with such objectionable accounts and place them before the Court for further action.

While Instagram stated that it has appointed a Grievance Officer in terms of the Rules and the same person was also the Grievance Officer for Facebook, the petitioner asserted that one person cannot act as Grievance Officer for two Significant Social Media Intermediaries having followers of more than 50 lakh.

The matter will be heard next on August 16.

Legal News

“Right of access to justice includes right to access live court proceedings”

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The e-Committee(chaired by Justice DY Chandrachud) of the Supreme Court has released its draft model rules for live streaming and recording of court Proceedings and has invited for suggestions and inputs from all stakeholders on or before 30th June 2021.

Press release states that the right to access to justice guaranteed under article 21 of the Constitution of India encompasses the right to access Live court proceedings.

It is further noted in the press release that the sub committee consisting of judges of Bombay, Delhi, Madras and Karnataka High Court was constituted to frame the rules. The sub-committee, after taking into account the principles enunciated in  Swapnil Tripathi v. The Supreme Court of India, including concerns of privacy and confidentiality, prohibition or restriction of access to proceedings or trials stipulated by central or state legislation and in some cases to preserve the larger Public Interest owing to sensitivity of the case, has provided a balanced regulatory framework for live streaming and recording of court proceedings.

Legal News

Citizen Has Right To Criticize Government As Long As He Does Not Incite People To Violence: Supreme Court In Vinod Dua Case

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A citizen has a right to criticize or comment upon the measures undertaken by the government and its functionaries so long as he does not incite people to violence against the government or with the intention of creating public disorder, the supreme court said while quashing a sedition case registered against journalist Vinod Dua. (Vinod Dua v. Union of India LL 2021 SC 266)

The bench( Justices Uday Umesh Lalit and Vineet Saran) however rejected the prayer that no FIR  be registered against a person belonging to the media with at least 10 years of standing unless cleared by the committee as suggested. This would amount to encroachment upon the field reserved for legislature.

Source: Live law