29, Dec 2020 | CJP Team
As 2020 draws to a close, here is an annual round up of orders and judgements from India’s constitutional courts — High Courts and the Supreme Court of India. In a month by month look, CJP brings you a calendar of the year gone by, an overview of verdicts that raised some eyebrows, resulting in disappointment to the ongoing battle for the realisation of constitutional rights.
SC issues contempt notices to Kunal Kamra & Rachita Taneja
Supreme Court has decided to go ahead with legal proceedings against the two, who have been accused of ‘scandalising’ the court with their tweets against the Supreme Court and the judiciary. They were also directed to respond to the notice within six weeks. This brings into focus the much criticised Contempt of Courts Act that
Counselling for bail condition on anti CAA WhatsApp status: Madhya Pradesh HC
The high court directed the petitioner to attend “counselling” sessions in the first week of February, March and April 2021 with an advocate-social worker. The petitioner had merely made a cheeky reference in support of the anti-CAA/NPR/NRC protests. The prosecution under the Shivraj Singh Chauhan govt had however alleged that his WhatsApp status was found to be prejudicial to the maintenance of religious harmony and could have adversely affected public tranquillity.
Anticipatory bail to rape accused for marrying prosecutrix: Delhi HC
The Delhi High Court granted anticipatory bail to a rape accused government accused after the survivor’s mother expressed that she has no objection to the same.
Equating term “Gomatha” to meat is hurtful: Kerala HC
The Kerala High Court held that the use of the term ‘Gomatha’ in a cookery show can wound the religious sentiments of lakhs of Hindus who worship cows as God and subsequently directed the accused to take the video down. The court said that the choice of the word ‘Gomatha Ularth’ (beef roast) prime facie appeared to be ill motivated and purposefully made and that uploading of such highly objectionable video for public viewing may affect the Fundamental Right of devotees.
We are trying to discourage Article 32 petitions: CJI
While hearing a habeas corpus petition to release Siddique Kappan from Jail, the Chief Justice SA Bobde remarked, “We are trying to discourage Article 32 petitions”. He questioned the petitioners as to why they could not approach the High Court for the same. It was submitted that they could not as they were not being allowed to meet Kappan inside the jail.
All insults not an offence under SC/ST Act: SC
The Supreme Court held that an offence under the Scheduled Caste or Scheduled Tribe (Prevention of Atrocities) Act is not made out unless such insult or intimidation is by virtue of the person belonging to the SC/ST community or there is a clear intention to humiliate a member of the SC/ST. The top court said that the accuser being a SC/ST member is not enough to establish a SC/ST Act offence.
POCSO Accused asked to marry survivor for bail: Madras HC
In a bizarre order, the Madurai Bench of the Madras High Court granted bail to a man accused of raping and impregnating a 17-year-old girl under the Protection of Children from Sexual Offences (POCSO) Act on a condition that he marries he after she attains the majority age of 18.(Tamil Nadu)
Death Penalty for corruption: Madras HC
In another controversial statement, that the country needs stringent penalties to curb the menace of corruption in the country, a division bench said that the Central Government may consider imposing punishment, such as, “hanging” or “death penalty”, for corrupt practices or for demanding and accepting bribes, like in China, North Korea, Indonesia, Thailand and Morocco.The Bench also observed that people are compelled to accept corruption as normal and it has become deep rooted that has spread like Cancer. Hence the court believed that the punishment needed to be enhanced. (Tamil Nadu)
Rape FIR quashed as parties marry: Allahabad HC
The Single Bench invoked its inherent powers under section 482 of the CrPC to secure the ends of justice and quashed the rape and kidnapping proceedings against the alleged accused after an amicable settlement between him and the survivor. This is in contravention of the Supreme Court ruling that has ruled that any settlement/compromise is not acceptable in sexual violence cases. (Uttar Pradesh)
Right to protest, not an absolute law: SC
Deciding the fate of Shaheen Bagh protestors, the apex court held that although the Right to protest was a fundamental right, it was no absolute. The court said that while dissent and democracy go hand in hand, protests must be carried out in designated areas.It also saidthat public places cannot be occupied for protests and it is the authorities’ responsibility to ensure removal of occupation of public places. The court failed to see the constant dedicated voice of protestors engaged in peaceful non-violent protests for days against the discriminatory citizenship laws.
Father Stan Swamy’s bail rejected: NIA court
Special court rejected the interim bail plea of activist-priest Fr. Stan Swamy who was arrested from Ranchi by the National Investigation Agency (NIA) despite cooperating with the police and spending hours being questioned in connection with an alleged conspiracy to instigate caste violence in the Bhima Koregaon village near Pune in 2018. His bail was sought on medical grounds as he is 83 years old and suffers from Parkinson’s disease.
CBI court acquits all in Babri Masjid case
A special CBI Court in Lucknow acquitted all the accused in the criminal conspiracy case surrounding the demolition of the 16th century Babri mosque in Ayodhya on December 6, 1992. Special CBI judge SK Yadav delivered the judgment that ran into over 2,000 pages and held that there was no criminal conspiracy behind the demolition. The court further held that the demolition wasn’t planned and that the accused persons were trying to stop the mob, and not inciting violence. This verdict apart from giving weight to the maxim justice delayed is justice denied has made a mockery of reams of evidence available for scrutiny under the Indian Evidence Act and more over is a blow to the Rule of Law as senior leaders of the Bharatiya Janata Party (BJP) have been eye-witnessed urging on the demolition which is a clear criminal act. (Uttar Pradesh)
SC denies bail to Sudha Bharadwaj
The Supreme Court rejected Bhima-Koregaon-accused Sudha Bharadwaj’s medical bail on September 24 on grounds that the medical officer considered her health “stable and satisfactory.” This disappointing order came despite post-prison fungal infection and heart problem that put her in the ‘high-risk’ category for Covid-19. She also suffers from diabetes and arthritis.The medical reports produced by the jail authorities clearly showed that her health significantly worsened behind bars with new diseases and ailments developing but her bail was still rejected based on one officer’s statement.
CMM dismisses Karat’s plea against Anurag Thakur
Additional Chief Metropolitan Magistrate dismissed the application on the technicality, that prior Govt sanction is needed for prosecution of the respondents, who are MPs. Karat had filed a complaint against the hate speeches made by BJP leaders Anurag Thakur and Parvesh Verma and asked Delhi police for filing a First Information Report (FIR) under relevant sections, including Sec 153 of the IPC. After the Police refused to respond, an application was filed in the appropriate Magistrate’s Court, as per procedure. Karat also called the order surprising and disappointing. (Delhi)
48,000 shanties along railway lines ordered to be removed: SC
The Supreme Court directed the removal of nearly 48,000 shanties along the 140-km railway tracks of New Delhi to prevent piling up of waste garbage along railway tracks. However, the order did not seem to draw any connection between failure of Railways in implementing waste management and the unauthorised slums along the railway tracks.
SC fines Prashant Bhushan Re. 1 in contempt case
The Supreme Court held senior advocate and human rights defender Prashant Bhushan guilty of contempt of court and levied Re.1 fine on him. The Bench said that the Indian judiciary is considered as a last hope when a citizen fails to get justice anywhere. “The Supreme Court is the epitome of the Indian judiciary”. An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges in the country in its highest court. This was sharply criticised as it limits a person’s freedom to speech and does not set a metric to judge what can and cannot scandalise the court.
SC dismisses plea to transfer PM care funds to NDRF
A Public Interest litigation (PIL) filed by Centre for Public Interest Litigation (CPIL) in the Supreme Court sought directions that the Centre transfers all contributions against the COVID-19 fight to be credited towards the NDRF in tandem with section 46(1)(b) of the Disaster Management Act and to formulate a National Plan as per the Disaster Management Act. But the Supreme Court dismissed the petitionholding that there was no need for a fresh national disaster relief plan for Covid-19 and the standards of relief issued under the Disaster Management Act before Covid-19, were adequate. It further stated that funds collected in PM CARES were for a charitable trust and there was no need to transfer the same to NDRF.
Madras HC acquits person for Dalit’s murder
In a case of honour killing, the Madras High Court acquitted Kowsalya Shankar’s (social activist government employee) father Chinnasamy for murdering her former husband. The sessions court-imposed death sentence on him on charges of co conspirators and 5 other assailants who attacked the couple with a knife at a bus station. The High court held that the prosecution could not prove the charge of conspiracy beyond any reasonable doubt. The high court also absolved him of charges under the SC/ST Act, shockingly. (Tamil Nadu)
Sleeping after “being ravished” very unbecoming of a woman: Karnataka HC
Granting pre arrest bail to a rape accused, Karnataka High Court took sexual violence jurisprudence back by decades.The court speculated why the complainant did not approach the court earlier when the accused was allegedly asking her for sexual favours. The court also questioned why the complainant went to her office late night and did not object to consumption of alcohol. The court said that the complainant’s explanation that she fell asleep after the alleged crime is “unbecoming of a woman; that is not the way our women react when they are ravished”.
Delhi HC adjourns plea for transparent arrests in Delhi riots
Brinda Karat’s petition urging transparency in arrests and detentions in the north east Delhi riots case was pushed to June 16 when matters were argued in May itself and the first hearing took place in March, 2020. The matter remains pending. (Delhi)
Migrants denied Justice: SC
In a plea to stop the migrants from walking long miles and seeking urgent directions to all District Magistrates to identify the walking labourers and to ensure that they reach their homes, free of cost and in a dignified manner, the Supreme court lashed out at the petitioners and said, “Every advocate reads something suddenly and then you want us to decide issued under Article 32 of the Constitution of India based on your knowledge of newspapers? Will you go and implement government directives? We will give you a special pass and you go and check.” The prayers seemed very valid and the verdict of the Bench has been widely criticised for it’s absolute apathy.
In another petition filed by civil liberties activists Harsh Mander and Anjali Bharadwaj seeking payment of wages to migrant labourers and daily wage earners, the SC bench, led by CJI SA Bobde, during a brief hearing said, “If they are being provided meals, then why do they need money for meals?” In one of the hearings regarding this migrant exodus, the Supreme Court refused to interfere in the Government working and stated, “everyone is trying to do their best in these unusual circumstances”. When pregnant women, starved children all walked for miles and miles, the
SC refuses to intervene in 4G restoration in J&K
The Supreme Court, while not passing any orders for restoration of 4G in Jammu and Kashmir, instead set up a Committee to review the situation and consider the alternatives suggested by the petitioners. This committee was led by the Secretary of Ministry of Home Affairs. This apex court order was ironical as the administrative committee comprises the same officers who have been aggressively implementing 2G internet restrictions there so the same officers who are pushing for 2G restrictions will now review if 4G can be restored in the UT.
100% reservation for ST teacher’s illegal: SC
A 5-judge Constitution Bench headed by Justice Arun Mishra quashed the Andhra Pradesh government order which provided 100% reservation to the Scheduled Tribe candidates for the post of teachers in the schools in the scheduled areas.It held that by providing 100% reservation to the scheduled tribes it will deprive the scheduled castes and other backward classes also of their due representation. It also impinges upon the right of open category and scheduled tribes who have settled in the area after January 26, 1950. By providing 100 percent reservation in the scheduled area, the rights of the tribals, who are not residents of the scheduled areas, shall also be adversely affected. However, in July a review petition was filed stating that the general rights of tribal communities in India will be compromised if the state cannot provide adequate reservation in appropriate cases, something likely to occur as a result of the top court’s judgment.
Land acquisition wont lapse if compensation already paid: SC
A five-judge bench of the apex court had delivered a verdict where it ruled that landowners who refuse to accept compensation for land belonging to them that was acquired cannot subsequently seek cancellation of such acquisition, that proceedings under the old Act will lapse only if possession has not been taken and compensation has not been paid. But if possession has been taken and compensation not paid, there will be no lapse. This raised eyebrows 6 months later by a new Bench that the verdict created some confusion. In February, 2018, a three-Judge Bench of the Supreme Court (Justices Madan B Lokur, Kurian Joseph and Deepak Gupta) reviewed the February 8, 2018 verdict that proved advantageous to the Government, and stayed its operation. This Bench issued directions to all High Courts to not follow the February 8 ruling and held that under common law, the same Bench strength cannot override each other’s ruling. Finally, this was heard by a five-Judge bench headed by Justice Mishra in October 2019 even though he would have a direct conflict of interest in deciding the case as he authored the 2018 judgment but it yielded no positive outcome as he refused to recuse himself
Remove Adivasi ‘encroachers’: Guwahati HC
The Guwahati High Court dismissed a PIL through which seven Scheduled Tribe petitioners sought the recognition of forest dwellers’ rights for themselves and other villagers who have been residing in ‘forest villages’ inside Chariduar Reserved Forest (RF) for 35-40 years since early 1980s. The court directed the Chief Secretary to the Government of Assam and other top officials of the Environment and Forest Department/Ministryto ensure that the “encroachers” are removed from all forest lands after following due process provided under the Act of 2006 and other related legislations. The FRA 2006 has no provisions for “evacuation” at all. (Assam)
UP’s ‘Name and shame’ ordinance needs more consideration: SC
In the matter of the hoardings put up by the Uttar Pradesh government of the alleged anti-Citizenship Amendment Act protestors demanding compensation for damage to property, the Supreme Court said there was no law to support that the government could put up such hoardings with the names, photographs and addresses of such persons. However, not quashing the ill-conceived Ordinance the Court referred the matter to a three-judge regular bench instead of quashing it. Justice Lalit even questioned whether the State has the power to put up such hoardings as it is a clear violation of privacy but the matter is now pending before the top court with a threat of people getting lynched and assaulted.
Delhi HC seeks Centre & Police stand on compensation for Jamia violence victim
Several students, who were victims of brute police violence on the JamiaMiliaIslamia University in December 2019, have approached the Delhi High Court for reliefs in compensation as also prosecution of the guilty police officers. There are several petitions pending. In one such, As the petitioner sought Rs.2 crore compensation for suffering fractures in both his legs due to the violence, the Delhi High Court issued notices to the Centre and the Delhi Police while hearing the victim’s plea. The two problematic issues with the order was that the victim stated in his plea that he injured himself because of the police brutality which were sufficiently video recorded and that the court gave the Central government and the Delhi Police time till May 27 to file their responses. Several hearings of the case thereafter have simply met with repeated adjournments.
SC grants bail to 14 convicted in Sardarpura massacre
The Supreme Court granted bail to all 14 convicts in the Sardarpura massacre that took place in wake of the Godhra train burning incident in 2002 and directed them to perform social and spiritual service.
(Compiled by SanchitaKadam and Adeeti Singh)