The Supreme Court rules on extended curfews in Kashmir
The Supreme Court on January 10th delivered the judgment on batch petitions challenging the strict lockdown imposed in Jammu and Kashmir in the wake of abrogation of the special status of the State in August 2019 in Anuradha Bhasin v. Union of India. The three-judge bench comprising Justices N V Ramana, Surya Kant and B R Gavai held that repeated curfew orders under Section 144 would amount to an abuse of power. Further, an indefinite suspension of the internet is not permissible.
The Court observed that the power under Section 144 of the Criminal Procedure could not become a tool to prevent the legitimate expression of opinion. The provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency. Although the judgment cautioned against the arbitrary use of Section 144 to curb dissent and recognised the right to the internet, it failed to provide satisfactory relief to the petitioners. It remained as a mere re-iteration of principle or law.
- Find the judgment here.
- Devdutta Mukhopadhyay & Apar Gupta, Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age, 9 INDIAN J. CONST. L 209 (2020).
- Gautam Bhatia, The Article 370 Amendments: Key Legal Issues (Aug. 5, 2019), https://indconlawphil.wordpress.com/2019/08/05/the-article-370-amendments-key-legal-issues/.
- Suhrith Parthasarathy, The Kashmir Internet Ban – What’s at Stake (Dec. 25, 2019), https://indconlawphil.wordpress.com/2019/12/25/guest-post-the-kashmir-internet-ban-whats-at-stake/
- Find the link to the NUALS Law Journal Blog Post here. (Rashi Rawat and Himanshu Kumar, Revisiting Internet Shutdowns and the Right to Freedom of Expression (July 24, 2020).)
Transgender Person (Protection of Rights) Act was brought into effect
The Transgender Persons (Protection of Rights) Act, 2019 came into force on January 10th. The Act intends to protect persons of transgender identity from discrimination. The Act is made enforceable against all establishments, which covers Government and private entities, including all companies, firms, Co-operative societies, trusts etc. The Act comes after the Supreme Court’s landmark decision in 2014, in NALSA v. Union of India, which gave recognition to fundamental rights of transgender persons and accorded them an equal constitutional status under Indian legal regime. It also recognises the right to self-perceived gender identity. It provides for certification from a District Magistrate if a transgender person has had a gender-change surgery. However, many in the community have raised concerns about a certificate from the district magistrate.
- Find the Act here.
- National Legal Services Authority (NALSA) v Union of India, AIR 2014 SC 1863.
- Almas Shaikh, What do the Transgender Persons (Protection of Rights) Rules, 2020 say? (Oct. 21, 2020), https://clpr.org.in/blog/what-do-the-transgender-persons-protection-of-rights-rules-2020-say/
- Dhruva Gandhi & Unnati Ghia, A Constitutional Challenge to the Transgender Persons Act in India (Dec.27,2019), http://www.iconnectblog.com/2019/12/a-constitutional-challenge-to-the-transgender-persons-act-in-india/.
- Dipika Jain & Kavya Kartik, Unjust Citizenship: The Law That Isn’t, 13 NUJS L. Rev. 3 (2020)
- Shagun Bhargava, The Inadequancy of the Transgender Persons Act to Tackle Workplace Discrimination (Oct 9, 2020), https://lawschoolpolicyreview.com/2020/10/09/the-inadequacy-of-the-transgender-persons-act-to-tackle-workplace-discrimination/.
The Supreme Court upholds the validity of SC & ST Act, 2018
The Supreme Court in 2018 in Dr Subhash Kashinath Mahajan vs The State of Maharashtra & Anr., diluted stringent provisions of the Act leading to widespread protests. In light of the protests, the Union Government brought out Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act of 2018 negating Dr Subhash Kashinath by inserting Section 18-A. The Constitutional validity of Amendment was challenged in Prithvi Raj Chauhan v. Union of India.
In Dr Subhash Kashinath Mahajan v. The State of Maharashtra & anr., the Court held that the provisions of Prevention of Atrocities Act were misused. The safeguards listed such as the conduct of preliminary inquiry before registration of FIR; investigating officer should receive approval before arrest; anticipatory bail to accused, notwithstanding any judgment or order or direction of any court was reversed by the Amendment Act.
The Court upheld the Constitutional validity of section 18-A and held that the directions given in Dr Subhash Kashinath Mahajan placed an unnecessary burden upon people of Scheduled Caste and Schedule Tribes.
- Find the judgment here.
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, No 47 Acts of Parliament (2018).
- Dr. Subhash Kashinath Mahajan v. The State Of Maharashtra, AIR 2018 SC 1498.
- Sandhya Fuchs, The myth of the false case: what the new Indian Supreme Court Order on the SC/ST Act gets wrong about caste-based violence and legal manipulation (April 10, 2018), https://blogs.lse.ac.uk/southasia/2018/04/10/the-myth-of-the-false-case-what-the-new-indian-supreme-court-order-on-the-scst-act-gets-wrong-about-caste-based-violence-and-legal-manipulation/
Permanent Commission to women in the Army allowed
The Supreme Court of India on the 17th February, 2020, in the case of The Secretary, Ministry of Defence v. Babita Puniya, allowed for the Female Army Officers (FAOs) to have equal entitlement as Male Army Officers (MAOs), for exercising the option to avail a Permanent Commission (“PC”) in the Army, on par with their male colleagues.
Section 12 of the Army Act prohibits the recruitment of “females” into the army. In 1992, the Union Government issued notifications allowing women to join certain cadres. These notifications were consequently updated by the Government. In 2008, the Ministry of Defence issued a Circular granting Permanent Commissions [PCs] to women to certain cadres. The Supreme Court held that Article 33 only allowed for restrictions in the Armed forces that were necessary to ensure the proper discharge of duties and the maintenance of discipline. The decision is a huge step in the gender equality jurisprudence of India.
- Find the decision here.
- Harshit Sharma, Equality in Armed Forces Comes with All Its Dues: Revisiting the Judgement of Apex (Aug. 4, 2020), www.indiandefencereview.com/equality-in-armed-forces-comes-with-all-its-dues-revisiting-the-judgement-of-apex-court/0/.
- Tania Saritova Rath, Breaking Armour-plated ceiling: Struggle for gender equality in Indian Armed Forces, 11 Journal of Case Research, https://www.xub.edu.in/jcr/cases/Case01-June2020_Breaking-Armour.pdf.
- Deba R Mohandi, The Role of Women in Indian Military: Why the Battle for Equality is Only Half Won (Dec. 24, 2020), https://www.sspconline.org/opinion-analysis/role-women-indian-military-why-battle-equality-only-half-won-mon-02242020.
Domestic Violence: Court has to be Prima Facie satisfied that there have been instances of violence before issuing notice in complaint
In Shyamlal Devda & Ors. v. Parimala, a three judge bench of the Supreme Court held that the court is supposed to be prima facie satisfied that there were instances of domestic violence before issuing a notice. A woman filed a petition seeking protection order under Section 18, residence order under Section 19 and monetary relief under Section 20 of the Protection of Women from Domestic Violence Act, 2005 before the Court of Metropolitan Magistrate at Bengaluru against her husband, her in-laws and other relatives of her husband who were residing in different states, claiming to be a victim of domestic violence. The Magistrate, Bengaluru issued notice to all persons. Aggrieved by this, the appellants filed a petition under s. 482 Cr.P.C, for quashing entire proceedings of the lower court. The High Court dismissed the petition, and the appellants filed an appeal to the Supreme Court.
The Court observed that there were no specific allegations to show that the relatives caused the acts of domestic violence and held that the criminal case against the relatives could not continue. The Court ordered the Magistrate at Bengaluru to proceed with the case against the Husband and the in-laws.
- Find the judgement here.
- Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament (2005).
- Mansi Gupta, Domestic Violence- Rise of Another Pandemic (April 9, 2020), https://lawschoolpolicyreview.com/2020/04/09/domestic-violence-rise-of-another-pandemic-amidst-an-ongoing-one/.
- Sandra L. Martin, Amy Ong Tsui, Kuhu Maitra, Ruth Marinshaw, Domestic Violence in Northern India, American Journal of Epidemiology, Volume 150, Issue 4, 15 August 1999, Pages 417–426
- Nimisha Jaiswal, Indian court rules that men need protection from women making unsubstantiated domestic harassment claims (Aug 15, 2017), https://www.pri.org/stories/2017-08-15/indian-court-rules-men-need-protection-women-making-unsubstantiated-domestic.
The Supreme Court rules that breakdown of marriage is not an end of parental responsibilities
The Supreme Court on February 20th, in Soumitra Kumar Nahar v. Parul Nahar ruled that in a child custody battle, the rights of the child need to be held in utmost regard as he/she is entitled to the love of both parents. It added that even if there is a breakdown in the marriage, it does not signify the end of parental responsibility, as it is the child who suffers the most in a matrimonial dispute. A two-judge bench of the SC opined that, “While deciding the matters of custody of the child, primary and paramount consideration is always the welfare of the child.”
The Court observed that in a custody battle, no matter which parent wins the child is always the loser and it is the children who pay the heaviest price as they are shattered when the judiciary asks them to accompany the parent he or she deems fit. The case was decided as the court heard a husband assailing the 2015 order of the Delhi High Court which partly allowed the appeal with the direction to the wife to comply with the consent terms, especially on the visitation rights of the husband to meet the son, who is now 11 years old. At the same time, visitation rights to meet the daughter, now 14 years old, were declined.
- Find the judgment here.
- Find a brief summary of the case here.
- Find the Hindu Marriage Act, 1955 here.
- Find the Guardians and Wards Act, 1890 here.
- Find the 217th Report of the Law Commission, 2009 here.
- Find the 71st Report of the Law Commission, 1978 here.
- Meera Emmanuel, Child always the loser in custody battles, no matter which parent wins: Supreme Court (Feb. 14, 2020), https://www.barandbench.com/news/litigation/child-always-the-loser-in-custody-battles-no-matter-which-parent-wins-supreme-court-read-judgment.
The Supreme Court on the parole and release of Prisoners during COVID-19
On April 7th, the Supreme Court, in Amit Sahni v. Union of India, refused to pass any blanket order directing the Centre and states to consider granting parole or interim bail to prisoners above 50 years of age as also to those suffering from diabetes, high blood pressure, respiratory problem and other life threatening diseases in view of coronavirus pandemic. Notice was brought to a previous order as a consequence of overcrowding of prisons. The Court stated that it does not know what the government thinks about the issue but in the court’s view it should be case by case. Noticing that the issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic , the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and Surya Kant, JJ, in the reference case, directed each State/Union Territory to constitute a High Powered Committee to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate.
- Amit Sahni v. Union of India, 2020 SCC OnLine SC 359
- In Re: Contagion of COVID-19 Virus in Prisons, 2020 SCC OnLine SC 344
- Prachi Bhardwaj, SC refuses to pass blanket order for release of prisoners above 50 years of age on parole (Apr. 08, 2020), https://www.scconline.com/blog/post/2020/04/08/covid-19-sc-refuses-to-pass-balnket-order-for-release-of-prisoners-above-50-years-of-age-on-parole/.
- Prachi Bhardwaj, Overcrowding of prisons is serious concern; Consider releasing prisoners on parole/bail: SC to States/UTs (Mar. 23, 2020), https://www.scconline.com/blog/post/2020/03/23/coronavirus-covid-19-overcrowding-of-prisons-is-serious-concern-consider-releasing-prisoners-on-parole-bail-sc-to-states-uts/.
- Ruchir Joshi & Esha Joshi, COVID-19: India’s Overcrowded Prisons Once Again Under the Spotlight (May 5, 2020), https://hrcessex.wordpress.com/2020/05/05/covid-19-indias-overcrowded-prisons-once-again-under-the-spotlight/.
- Ashna D, Do prisoners in India have a right to health? (Oct. 7, 2020), https://blogs.lse.ac.uk/socialpolicy/2020/10/07/do-prisoners-in-india-have-a-right-to-health/.
- Jared R. Dmello & Sheetal Ranjan, Lock Unlock: The Impact of COVID-19 on Health Security in Pakistani and Indian Prisons (Oct. 21, 2020), https://www.tandfonline.com/doi/full/10.1080/15564886.2020.1822973.
Right to Privacy – Concerns over Aarogya Setu app
To combat and curb the spread of COVID-19 the Union Government of India launched a contact tracing app called Aarogya Setu on April 2nd. Experts raised concerns over the legality and the ramifications on privacy vis-a-vis the app. The situation worsened when the Ministry of Home Affairs mandated using the app in public and private employment and imposed penal sanctions for non-compliance. It called for a need to resolve the conflict between the right to health and privacy.
In what came to be its seminal judgement on privacy, the Supreme Court recognised the right to privacy in KS Puttaswamy v. Union of India. Justice DY Chandrachud therein stated that the State preserves the anonymity of the individual. Still, it could legitimately assert a valid state interest in safeguarding public health and therefore can impose restrictions on this right. However, there must exist a governing law.
A lack of legal framework around data protection and blatant violation of the principles of data protection led to several petitions to be filed across the country against the Aarogya Setu app mandate.
- Justice K. S. Puttaswamy (Retd) & Anr v. Union of India & Ors, (2017) 10 SCC 1 (India).
- Is Aarogya Setu privacy-first? Nope, but it could be– If the government wanted. #SaveOurPrivacy, Internet Freedom Foundation (Last accessed Jan 1, 2021).
- Sidharth Deb, Privacy prescriptions for technology interventions on Covid-19 in India, IFF Working Paper No. 3/2020 (Apr. 11,2020).
- Ashi Mehta, Does India’s COVID-19 Contact Tracing App Violate Digital Rights? (May 11, 2020), https://ohrh.law.ox.ac.uk/does-indias-covid-19-contact-tracing-app-violate-digital-rights/.
- Find the link to TeLawgram Post on NUALS Law Journal Blog here.
The exodus of Migrant Labourers and the actions of the Government
The exodus of migrant workers following the 21-day nationwide lockdown announcement in March 2020 due to the ongoing COVID-19 pandemic threw the spotlight on daily wage workers’ plight.
The lockdown brought all business and economic activity to a virtual standstill, leaving migrant workers with no work or money. Many were stranded and were forced to leave for their homes on foot threatening to overturn the very object of a lockdown. It led to many unfortunate incidents. The workers faced mistreatment from the authorities and were ill-treated, a few lost their lives.
But the Supreme Court’s limited intervention in response to the humanitarian crisis set off by this mass exodus received public condemnation. It failed to concede to the Government’s failure for its lack of planning and coordination, which led to heightened panic and chaos. Instead, it uncritically accepted the official narrative that “fake news” about the lockdown duration caused a panic reaction from migrant workers across States.
- Ritanjan Das and Nilotpal Kumar, Chronic crisis: Migrant workers and India’s COVID-19 lockdown (Apr. 8, 2020), https://blogs.lse.ac.uk/southasia/2020/04/08/chronic-crisis-migrant-workers-and-indias-covid-19-lockdown/.
- Aparajita Kaul, Voluntary But Unlawfully Mandatory: Aarogya Setu App In Bail Orders (May 30, 2020), https://lawschoolpolicyreview.com/2020/05/30/voluntary-but-unlawfully-mandatory-aarogya-setu-app-in-bail-orders/ .
- Akshat Bhushan, Homeless And Hungry : Rights Of Migrant Workers In Times Of COVID-19 (May 28, 2020), https://jilsblognujs.wordpress.com/2020/05/28/homeless-and-hungry-rights-of-migrant-workers-in-times-of-covid-19/ .
- Arya Warrier & Naina Elizabeth Mathew, Migrant Workers Work for India. Will the Indian Government now Work for Them? (Aug. 2020), http://www.columbiapublicpolicyreview.org/2020/08/migrant-workers-work-for-india-will-the-indian-government-now-work-for-them/.
- Anusha Shekhawat and Vatsal Patel, The Crisis Of Migrant Labour In India During COVID-19 ( Jul. 1, 2020), https://blog.politics.ox.ac.uk/the-crisis-of-migrant-labour-in-india-during-covid-19/.
The Supreme Court rules that the Travancore Royal Family’s shebaitship of Sree Padmanabhaswamy Temple, is not affected by the King’s death
A two-judge bench of the Supreme Court on July 13th upheld the rights of the Travancore royal family in the administration of Sree Padmanabhaswamy Temple, in Thiruvananthapuram, Kerala. In allowing the Travancore Family’s Appeal, the Court stated that the death of the Maharaja of Travancore, who signed the covenant, does not affect the Travancore family’s rights of Shebaitship over the temple and that it will survive as per the customs. Referring to a number of decisions, the Court noted that when the idol is installed and consequently, the temple is constructed or an endowment is founded, the shebaitship is vested in the founder and unless the founder has disposed of administrative rights in a particular manner or there is some usage or custom that evidence a different mode of devolution, the shebaitship like any other heritable property follows the line of inheritance from the founder. The Court concluded that it is not open to it to give rise to a new rule of succession or modify the rule of succession.
- Pratyush Kumar Jena & Vishal Choudhury, Can the Padmanabhaswamy verdict free Hindu temples? (Aug. 20, 2020), https://nualslawjournal.com/2020/08/20/can-the-padmanabhaswamy-verdict-free-hindu-temples/.
- Vinod Rai, The Sree Padmanabhaswamy Temple Case: Landmark Ruling by the Indian Supreme Court (Aug. 5, 2020), https://www.isas.nus.edu.sg/papers/the-sree-padmanabhaswamy-temple-case-landmark-ruling-by-the-indian-supreme-court/.
- Udisha Mishra, Freeing the Hindu Temples: A Critical Analysis of the SC’s Decision in the Padmanabhaswamy Issue (Oct. 3, 2020), https://www.iralr.in/post/freeing-the-hindu-temples-a-critical-analysis-of-the-sc-s-decision-in-padmanabhaswamy-temple-issue.
- Pratap Bhanu Mehta, PB Mehta writes: Padmanabhaswamy case turns on specific facts, but there are wider political ramifications (Jul. 21, 2020), https://indianexpress.com/article/opinion/%20columns/padmanabhaswamy-case-kerala-pb-mehta-6515406/.
- Prachi Bhardwaj, SC upholds Travancore royal family’s right in administration of Sree Padmanabhaswamy Temple in Kerala (Jul. 13, 2020), https://www.scconline.com/blog/post/2020/07/13/sc-upholds-travancore-royal-familys-right-in-administration-of-sree-padmanabhaswamy-temple-in-kerala/.
- Rajeev Dhawan, The Supreme Court and Hindu Religious Endowments 1950-1975, 20 I.L.I 53 (1978).
- Vinod Rai, “Temple Administration”, in Rethinking Good Governance – Holding to Account India’s Public Institutions (2019).
The upward revision in the definition of MSMEs was notified
The Ministry of Micro, Small and Medium Enterprises (“the Ministry”), subsequent to an approval from the Cabinet Committee notified a revision in the definition of MSMEs with effect from July 1st. The change in the definition is expected to result in new classification and reclassification of MSMEs. India will hence use ‘investment and annual turnover’ as classification criteria. The Reserve Bank of India’s Expert Committee referred to a study by the International Finance Corporation which analysed 267 definitions used by different institutions in 155 countries. According to the study, countries have used a combination of criteria to classify MSMEs, predominantly, the number of employees. As the Ministry provides for various schemes for: (i) modernisation and upgradation in technology, (ii) flow of credit to MSMEs, (iii) skill development, and (iv) cluster-wise measures to promote capacity-building and empowerment of MSME units. It is anticipated that the re-classification may require a significant increase in budgetary allocation for the MSME sector.
- Find the notification here.
- “Cabinet approves Upward revision of MSME definition and modalities/ road map for implementing remaining two Packages for MSMEs (a)Rs 20000 crore package for Distressed MSMEs and (b) Rs 50,000 crore equity infusion through Fund of Funds”, Press Information Bureau, Cabinet Committee on Economic Affairs, June 1, 2020.
- Anurag Vaishnav and Saket Surya, Definition of MSMEs (Jun. 8, 2020), https://www.prsindia.org/theprsblog/definition-msmes.
- Find the Micro, Small and Medium Enterprises Development Act, 2006 here .
- The 2015 and 2018 Amendment Bills.
- Report of the Expert Committee on Micro, Small and Medium Enterprises, The Reserve Bank of India, 2019.
- MSME Country Indicators 2014, International Finance Corporation, December 2014
SC holds Prashant Bhushan guilty of contempt of court
A three-judge bench of the Supreme Court, on August 14th, found activist lawyer Prashant Bhushan guilty of contempt of court for two of his tweets and observed that they shook public confidence in the judiciary. In his first tweet, Bhushan criticized the CJI and the functioning of the Supreme Court during the lockdown. The second tweet criticized the last 4 Chief Justices for their role in “the destruction of democracy.” Bhushan argued that the tweets were bona fide expressions of his opinion on the state of affairs in the country and the functioning of the Supreme Court. The Court found that Bhushan’s first tweet was false as the Supreme Court was functioning during the lockdown and Bhushan’s statements indicated to the contrary. On the tweet concerning the “destruction of democracy”, the Court observed that the criticism was aimed at the Court, and not a particular judge and therefore, scandalized the reputation of the Court. The Court sentenced Bhushan to a fine of Re.1, failing which he would be imprisoned for three months and debarred from practicing.
- Find the sentencing order here.
- Find the judgement here.
- Find a brief analysis of the judgement here.
- Swaraj Abhiyan, Who Blemished the Virtue of the Court? Bhushan or the Court Itself? (Sept. 16, 2020), https://nualslawjournal.com/2020/09/16/who-blemished-the-virtue-of-the-court-bhushan-or-the-court-itself/.
- See our previous update pertaining to Yatin Oza’s contempt trial here.
- Nihal Sahu, The Trial of Prashant Bhushan: narrative flexibility at the Indian Supreme Court (Nov. 11, 2020), https://www.pulj.org/the-roundtable/the-trial-of-prashant-bhushan-narrative-flexibility-at-the-indian-supreme-court.
- Gautam Bhatia, Contempt of Court and Freedom of Speech: An Analysis of the Prashant Bhushan Judgment (Aug. 14, 2020), https://indconlawphil.wordpress.com/2020/08/14/contempt-of-court-and-freedom-of-speech-an-analysis-of-the-prashant-bhushan-judgment/.
Supreme Court to re-examine constitutional validity of sub-classification of Scheduled Castes
A five-judge bench of the Supreme Court in State of Punjab v. Dalvinder Singh opined that the ratio laid down in E.V. Chinnaiah v. State of Andhra Pradesh, regarding the sub-classification of Scheduled Castes, must be revisited by a seven-judge bench. In E.V. Chinnaiah, the Supreme Court held that sub-classification of Scheduled Castes was ultra vires the Constitution as it would amount to differential treatment of individuals in a homogenous class (Scheduled Castes), thereby violating Article 14. In Dalvinder Singh, the Court examined the validity of Section 4(5) of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act of 2005, which provided for fifty percent of the reserved seats to be reserved for Balmikis and Mazhabi Sikhs. Justice Arun Mishra, in his opinion for the bench observed that reservations create inequalities within the Scheduled Castes and emphasized on the need for the concept of reservation to evolve with the Constitution.
- State of Punjab v. Dalvinder Singh, Civil Appeal No. 2317 of 2011 (Supreme Court of India).
- E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394.
- Chitranksha Kumari, Sub-Classification within Reserved Seats (Oct. 13, 2020), https://lawandotherthings.com/2020/10/sub-classification-within-reserved-seats/.
- Anuna Tiwari, Sub-Classification in Reservations (Sept. 3, 2020), https://indconlawphil.wordpress.com/2020/09/03/guest-post-sub-classification-in-reservations/.
- Abhinav Chandrachud, Sub-Classifications in Reservations – II (Sept. 14, 2020), https://indconlawphil.wordpress.com/2020/09/04/guest-post-sub-classification-in-reservations-ii/.
- Anup Surendranath, Judicial Discourse on India’s Affirmative Action Policies: The Challenge and Potential of Sub-Classification (2013) (D.Phil Thesis, Balliol College).
The CBI files a charge sheet in the Hathras Case
The Hathras case involves the rape and murder of a 19 year old Dalit woman in the Hathras District of Uttar Pradesh. After almost two weeks in a hospital, she succumbed to her injuries on September 29th. In her dying declaration, she accused four upper-caste men. Due to allegations of a compromised investigation by the police, the National Human Rights Commission took suo motu cognisance on October 1st. The next day, the Allahabad High Court ordered the registration of a suo motu PIL. Later, on account of increasing pressure from the print and press media and the public and a recommendation from the Uttar Pradesh Government, the Central Government handed the case to the Central Bureau of Investigation (CBI). The CBI registered an FIR and took over the investigation into the alleged gang rape and assault. The case was earlier registered at Chandpa Police Station, in Hathras district of Uttar Pradesh, on a complaint by the victim’s brother.
The CBI, on December 17th, filed a chargesheet against the four accused under the SC/ST Act before special judge BD Bharti. The Supreme Court has requested that the Allahabad High Court monitor the CBI probe.
- Supreme Court judgement – Satyama Dubey v. Union of India, 2020 SCC OnLine SC 874.
- Devika, “Shocked by reports of events that led to victim’s cremation”, All HC orders registration of Suo Motu PIL (Oct. 2, 2020), https://www.scconline.com/blog/post/2020/10/02/hathras-gang-rape-alleged-shocked-by-reports-of-events-that-led-to-victims-cremation-all-hc-orders-registration-of-suo-motu-pil/.
- Devika, Gang Rape & brutality of 19-year-old women belonging to Scheduled Caste in Hathras district, UP: NHRC takes suo motu cognizance (Oct. 1, 2020), https://www.scconline.com/blog/post/2020/10/01/gang-rape-brutality-of-19-year-old-women-belonging-to-scheduled-caste-in-hathras-district-up-nhrc-takes-suo-motu-cognizance/.
- CBI begins probe into Hathras gangrape case (Oct. 11, 2020), https://www.asianage.com/india/crime/111020/cbi-begins-probe-into-hathras-gangrape-case.html.
- Manu Sebastian, Hathras Case: How Victim’s Oral Evidence Demolishes Forensic Report? (Oct. 7, 2020), https://www.livelaw.in/columns/hathras-case-how-victims-oral-evidence-demolishes-forensic-report-164092 .
- Satvik Verma, Legality of Dying Declarations (Oct. 15, 2020), https://www.barandbench.com/columns/legality-of-dying-declarations.
- Satvik Verma, Our Repeated Failure (Oct. 01, 2020), https://www.barandbench.com/columns/our-repeated-failure.
- Hathras case: CBI files chargesheet against four accused on counts of gangrape, murder (Dec. 18, 2020), https://www.firstpost.com/india/hathras-case-cbi-files-chargesheet-against-four-accused-on-counts-of-gangrape-murder-9122621.html.
CBI Special Court acquitted 32 accused in the Babri Masjid demolition case
In a 2,300-page verdict, the Central Bureau of Investigation (CBI) special Court, acquitted 32 persons accused of conspiring to demolish the Babri Masjid in 1992. The Court ruled that the demolition of the Babri Masjid was a spontaneous act by anti-national ‘elements’. It acquitted all 32 accused and ruled out criminal conspiracy due to “lack of (any) conclusive evidence”.
The Court was reluctant to accept newspaper reports, as originals had not been produced before it. The photographs were not accepted because there were no negatives, although the person who shot those images testified from the witness box. The court also said that the video footage was not acceptable because the filming was not clear and none of it had been produced in sealed envelopes. The Special CBI Court’s ruling marks the next step in the complex series of litigations following the demolition of the Babri Masjid in 1992.
- Click here for the Order.
- K. Goyal & K. Gupta, Analysing the exactitude of the acquittal in the Babri-Masjid demolition case, (Oct. 12, 2020), https://criminallawstudiesnluj.wordpress.com/2020/10/12/analysing-the-exactitude-of-the-acquittal-in-the-babri-masjid-demolition-case/.
- Ratna Kapur, The “Ayodhya” Case: Hindu Majoritarianism and the Right to Religious Liberty, 29 Md. J. Int’l L. 305 (2014).
- Satish Misra, Looking at the pros and cons of #Ayodhya judgement (Nov. 11, 2019), https://www.orfonline.org/expert-speak/looking-at-the-pros-and-cons-of-ayodhya-judgement-57681/.
- Lokshani Hakk Sanghatana, The Ram Janmabhoomi – Babri Masjid Dispute: A Secular Perspective, March 1991.
- Saif Ahmad Khan, The Ayodhya Verdict Dissected, (Feb. 07, 2020), https://www.theindiaforum.in/article/ayodhya-verdict-dissected.
Madhya Pradesh High Court judgment on Unlimited Undertrial Time Periods
The Madhya Pradesh High Court while hearing a bail application noted that an undertrial cannot be kept in jail for an unlimited period at the mercy of the prosecution. The Court noted that the applicant was incarcerated in 2016 and that the Court had no other option, but to allow the application for grant of bail. The court held the officers to be negligent, while reprimanding them for justifying their actions by challenging the order sheets of the respective Trial Court. Further, the Court rejected the plea that the delay was because of the nationwide lockdown. The High Court’s decision has caused the revival of the discussion on the fundamental right of any accused to a speedy trial under Article 21 of the Constitution. This also brings to the forefront a lapse in criminal procedure which has persisted for decades causing an upward spiral in the number of undertrial cases in the country.
- The MPHC decision can be found here.
- Supreme Court Order – In Re: Speedy Trial of Undertrial Prisoners, W.P. (C) 749/2018
- Orissa High Court decision – CRLA/174/2009
- N. Sahoo & V. Jain, Justice System in Crisis: The Case of India’s Undertrial Prisoners (August 2015).
- Amnesty International, Justice Under Trial: A study of Pre-trial detention in India (2017).
Bombay HC heard petitions against media trials & the SC directs Centre to give guidelines against biased media reporting
The Bombay HC in October of this year heard a PIL that sought restraint on parallel investigations being conducted by media portals. The petitioners argued that media trials interfere and obstruct the administration of justice and is, therefore, contempt of Court under S. 2(c) of the Contempt of Courts Act. The HC questioned the Centre on whether any mechanism exists to prevent such media trials from occurring.
In November, the Supreme Court heard arguments from petitioners that alleged biased media reporting of a gathering at Tablighi Jamaat. The three-judge bench consisting of Chief Justice S. A. Bobde, Justice A. S. Bopanna and Justice V. Ramasubramanian expressed disapproval and directed the Centre to ensure a proper and efficient mechanism to address complaints against the media if such mechanism did not already exist.
- Click here and here for the previous TeLawgram updates on these decisions.
- Law Commission of India, Trial by Media (Law Commission Report No. 200), https://lawcommissionofindia.nic.in/reports/rep200.pdf .
- Simran, Regulation of media in India – A brief overview (Nov. 16, 2011), https://www.prsindia.org/theprsblog/regulation-media-india-brief-overview .
Kerala HC holds Ss. 29 and 30 of the POCSO Act constitutional
In November, a single-judge bench of Justice Sunil Thomas upheld the constitutional validity of Sections 29 and 30 of the Protection of Children from Sexual Offences Act (POCSO). These Sections were called into question as they imposed a reverse burden of proof on the accused overriding the presumption of innocence.
The HC held that the provisions were in line with Articles 14, 20(3) and 21 of the Constitution. According to the Court, the Act passes the test of intelligible differentia and is, therefore, not violative of Art. 14.
The Delhi HC, in October, elaborated on the various factors that must be taken into consideration while determining bail of an accused under S. 29 of the POCSO Act. The Court suggested that the presumption of guilt must not be the sole ground for rejection of bail.
The Court reiterated that although POCSO offences are extremely serious in nature, it is also imperative to maintain the rules and principles of criminal justice.
- Click here and here for previous TeLawgram updates on these decisions.
- Pooja Garg, Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee Report, 17 Student Bar Review 38 (2005).
- Amnesty International India, The (Malimath) Committee on Reforms of Criminal Justice System: Premises, Politics and Implications for Human Rights (2003).
Sci-Hub and Libgen face copyright infringement suit
Three academic publishers, Elsevier Ltd., Wiley India Pvt. Ltd. and American Chemical Society, have filed a suit before the Delhi High Court seeking to ban on the online repositories – SciHub and Libgen – claiming copyright infringement.
On December 24th, the Delhi HC restrained both SciHub and Libgen from uploading, publishing or making available any article till January 6th. All the three publishers, which charge a subscription fee for accessing their content, have accused the two websites of infringing on their copyrights. The three publishers have proceeded with litigation against these websites in other countries such as France, Belgium and the United States of America as well.
- Nikhil Purohit, Sci-Hub and Libgen Up against Academic Publishers: A Death Knell for Access to Research? – Part I (December 28, 2020), https://spicyip.com/2020/12/sci-hub-and-libgen-up-against-academic-publishers-a-death-knell-for-access-to-research-part-i.html ; see also Nikhil Purohit, Sci-Hub and Libgen Up against Academic Publishers: A Death Knell for Access to Research? – Part II (December 28, 2020), https://spicyip.com/2020/12/sci-hub-and-libgen-up-against-academic-publishers-a-death-knell-for-access-to-research-part-ii.html ; see also Nikhil Purohit, Sci-Hub and Libgen Up against Academic Publishers: A Death Knell for Access to Research? – Part III (Dec. 28, 2020), https://spicyip.com/2020/12/sci-hub-and-libgen-up-against-academic-publishers-a-death-knell-for-access-to-research-part-iii.html.
- Chris Sweet, An Introduction to SciHub and its Ethical Dilemmas, 45 LOEX Quarterly (2018).
CBI court gives guilty verdict in Sister Abhaya murder case
On December 21st, a special CBI Court in Thiruvananthapuram found Father Thomas Kottoor and Sister Sephy, a priest and nun of the Catholic Church, guilty of Sister Abhaya’s murder 28 years after the incident.
During the course of the trial, which started in August of 2019, nine witnesses had turned hostile. The case, which was initially being handled by the state crime branch and local police, was handed over to the Central Bureau of Investigation (CBI) in 1993. The CBI filed its first report in 1996. This closure report was rejected by the Chief Judicial Magistrate. A second report was filed in 1999 which concluded that the death was a homicide. The CJM refused this report as well and directed further investigation. Another report was filed in 2005 which ruled out any one else’s involvement in the perpetration of the crime.
In 2009, the Kochi unit of the CBI filed a charge-sheet arraying Father Thomas Kottoor, Sister Sephy and Father Jose Poothrukkayil as accused for offences of murder and destruction of evidence.
- Click here to view the judgement.
- Manish Yadav & Anidhya Tiwari, Forensic toxicology and its relevance with criminal justice delivery system in India, 4 Forensic Research & Criminology International Journal 122 (2017).
- What happened in the sensational Sister Abhaya murder case? Timeline of the incidents (Dec. 22, 2020) https://www.theweek.in/news/india/2020/12/22/what-happened-in-the-sensational-sister-abhaya-murder-case-timeline-of-the-incidents.html.