Month: June 2021

Arbitral Tribunal Cannot Apply Public Law Principles or Article 14 Against Public Body: Bombay High Court

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While putting apart the arbitration award towards the BCCI over the termination of Deccan Chargers from IPL, the Bombay High Court determined that an arbitral tribunal can not observe public regulation ideas on equity and reasonableness.

In attraction towards the arbitration award beneath neath Section 34 of the Arbitration and Conciliation Act, the High Court bench comprising Justice Gautam Patel determined that it turned into immaterial whether or not BCCI turned into a ‘State’ or whether or not it turned into performing ‘public functions’, as public regulation responsibility can not be enforced in a non-public agreement.

“This always method that no arbitral tribunal can go back a locating that something contravenes public coverage until the agreement lets in this kind of route of action. To challenge into this is once more to challenge impermissibly into the area of public regulation. An arbitrator can not, for instance, go back a locating that a selected rule of law is ‘awful in regulation’. That is solely the area of a court. An arbitrator has to use the regulation because it stands”, the judges determined.

“Under Section 28(2), Arbitral Tribunal is needed to determine ex aequo et bono or as amiable compositeur handiest if the events expressly authorize it to do so. The Arbitrator is sure to put in force the contractual clauses and can not move opposite to them. He can not determine primarily based totally on his notions of fairness and equity until the agreement lets in it”.

The High Court cited SC precedents in Associate Builders (2015) three SCC 49, Ssangyong Engineering, Assistant Excise Commissioner v Issac Peter, etc. Justice Patel stated there had been 3 fundamental defaults through DCHL in their contractual obligation – failing to pay gamers and several others, growing prices on belongings (mortgaging belongings to exceptional banks), and insolvency court cases towards the company.

He delivered that during doing so, the arbitrator “disregarded objections approximately inadequate pleadings.” and granted reliefs that had been now no longer even sought.

-Report by Manaswa Sharma

The Allegation Against Punjab Police for Jaipal Bhullar Encounter

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The Father of Jaipal Bhullar who is Bhupinder Singh had filed a petition in Supreme Court constructing allegations against Punjab and Haryana Police stating that his son’s death is not a case of the encounter instead it is a case of custodial death.

Jaipal Singh Bhinder was one of the most wanted drug smugglers and gangsters in Punjab. There have been more than 50 criminal cases filed against him and after killing two police officers in Ludhiana in May Punjab police have been eyeing him. According to Punjab police they got the news that he and his partner Jaspreet is hiding in Kolkata in a flat and when police got into the flat the gangsters started firing and in that firing, he was shot to death. But according to Jaipal Bhullar father’s this version of the story is fabricated by Punjab police and it’s not the true version.

According to his father, it’s a case of custodial death as when the dead body of his son was handed to him he had noticed various injuries caused on the body which may not occur in case of an encounter. He also accused that the postmortem report has been influenced by police. In the petition, he also requested to conduct another postmortem.

Punjab and Haryana High Court had dismissed the petition and so the petitioner moved to Supreme Court. Because of this serious contention of Petitioner Supreme Court bench comprising Justice Indira Banerjee and MR Shah have ordered Calcutta High Court to take up the matter and conduct the second autopsy as demanded by the Petitioner.

-Report by Riddhi Dubey

Constitutional Morality: Critical Analysis

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INTRODUCTION

The Constitution of India, which is the world’s longest written Constitution, contains more or less all the notions which are relevant in representing the aims of India as a developing nation. However, there are certain concepts that have not been incorporated in the Constitution but are in practice. Constitutional Morality is one such principle. 

Meaning of Constitutional Morality

Constitutional morality can be defined as acting in accordance with the principles enshrined in the Constitution to maintain the rule of law in a democracy. Right to freedom, rule of law, freedom of choice, equality, due process of law and freedom of expression are some of the main elements of constitutional morality. However, it is to be noted that the term “constitutional morality” has not been expressly used in the Constitution.

The main sources of origin of constitutional morality are:

  1. The debates and deliberations that took place in the Constituent Assembly during the framing of the Constitution.
  2. The provisions given in the Constitution such as the Preamble, the Fundamental Duties, the Directive Principles of State Policy, etc.
  3. The precedents derived from various cases.
  4. The events that occurred when the Constitution was being framed.

The History of Constitutional Morality

Grote, a 19th century British historian, had given one of the first definitions of constitutional morality. According to him, it meant utmost devotion and compliance towards the principles of the Constitution. In India, the concept of constitutional morality was mentioned for the first time by Dr Ambedkar during his speech about the draft of the Constitution. He stated that the provisions for the administration of the government were incorporated in the Constitution instead of being framed by the legislature because India lacked constitutional morality. 

In Ambedkar’s opinion, constitutional morality meant effective cooperation between the citizens and the administration for resolving any conflict of interests without any confrontation.

However, post-1950, the doctrine of constitutional morality was rarely used. It was mentioned in passing in the case of Kesavananda Bharati v. State of Kerala when the Apex Court gave the doctrine of Basic Structure of the Constitution. Later on, in SP Gupta v. Union of India, also known as the first judge’s case, the term was again mentioned. In this case, it was stated that infringement of any convention, which is a constitutional practice but not a part of any legislation or even enforceable by the courts, should be regarded as a violation of constitutional morality.

Again, in NCT Delhi v. Union of India, the Court observed that constitutional morality means strict adherence to the constitutional principles. It also stated that the existence of a Constitution itself assured that both the citizens as well as the State will be bound by constitutional principles.

Recent Developments

Some of the recent landmark cases wherein the doctrine of constitutional morality was applied are:- 

  1. Navtej Singh Johar v. Union of India:- In this case Section 377 of the Indian Penal Code was partially struck down by the Supreme Court thereby decriminalising homosexuality. Former CJI Dipak Misra observed that instead of being influenced by popular opinion, the Court should follow the principles of constitutional morality, whose main aim is to make the society more inclusive. Moreover, while pointing out the difference between constitutional morality and public morality, Justice DY Chandrachud stated that the ideal of justice always prevails. In other words, constitutional morality outweighs public morality. The right to privacy, liberty and dignity were some of the grounds based on which the case was decided.
  2. Joseph Shine v. Union of India:- In this case, Section 497 of the Indian Penal Code was struck down by the Supreme Court. This section provided punishment only for men in cases of adultery and thus, the Apex Court held that the non-prosecution of women was violative of the fundamental rights given in the Constitution. The concept that women were owned by men or were belongings of men was held to be against the ideals of the Constitution. Here the respondents contended that adultery was derogatory to the institution of marriage. However, the Court was of the opinion that such arguments represented popular molarity, which is inconsistent with constitutional morality and has no role in determining the constitutionality of criminal laws.
  3. Indian Young Lawyers Association v. Union of India: In this case, the prohibition on the entry of women between the ages of 10 to 50 in the Sabrimala Temple was challenged. It was held that the Temple has no denominational character and thus the practice of banning the entry of women was not an essential religious practise under Article 25 of the Constitution. It was also stated that the word “morality” in Article 25 refers to constitutional morality and not public or popular morality.

Significance of Constitutional Morality

The significance of constitutional morality is as described below:-

  • Constitutional morality ensures the enforcement of the rule of law in the country and at the same time it also keeps up with the changing times and demands of the society.
  • It encourages greater unity and cooperation among the people in order to preserve the institution of democracy and achieve its ideals.
  • Constitutional morality helps change the perception of society by abolishing the laws and practices which are inconsistent with the present time. For example, a law banning the practice of Sati was passed and after this law was enacted, there has been a significant change in the mind set of the public towards widows.
  • Constitutional morality makes society more inclusive by recognising the diversity that exists in the society and providing the opportunity for reforms. For example, in Navtej Singh Johar v. Union of India, homosexuality was decriminalised which ensured equal rights for the LGBTQ community.

Criticism

There are some concerns regarding constitutional morality which are discussed below:-

  • There is no clear definition of the term constitutional morality and this has led to varied interpretation based on the individual’s perceptions.
  • Constitutional morality promotes judicial supremacy which results in the Judiciary intervening in the functioning of the legislature thereby violating the rule of separation of power.
  • This concept has granted unrestrained power to the judiciary, as a result contradicting opinions are being given by the judges in the same case, with both of them declaring constitutional morality as the reasoning. For example, in Indian Young Lawyers Association v. Union of India, one of the Judges was of the opinion that the ban on the entry of women was constitutional and on the other hand, the other judges were supporting the entry of women in the Sabrimala Temple.

CONCLUSION

Even though there are differences of opinion regarding the various aspects of constitutional morality, still it has been a significant guiding principle for achieving the ideals of the Constitution. However, proper definition and mechanism regarding constitutional morality are needed to avoid any misinterpretations and misuses.  

This article is written by Muskan Harlalka, a 2nd year law student from School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

BIBLIOGRAPHY

  1. Divya Aswani, Unveiling Constitutional Morality in India, Legal Bites (May 8, 2020), https://www.legalbites.in/unveiling-constitutional-morality-in-india/.
  2. Is ‘Constitutional Morality’ A Dangerous Doctrine?, Bloomberg | Quint (Dec. 19,  2019), https://www.bloombergquint.com/opinion/indian-judiciary-is-constitutional-morality-a-dangerous-doctrine-by-abhinav-chandrachud.
  3. J. Sai Deepak, Dr Ambedkar on constitutional morality, The Daily Guardian (Aug. 14, 2020), https://thedailyguardian.com/dr-ambedkar-on-constitutional-morality/.
  4. Md. Zeeshan Ahmad, The challenge of Constitutional Morality before the Supreme Court, The Leaflet (Mar. 26, 2020), https://migrate.theleaflet.in/the-challenge-of-constitutional-morality-before-the-supreme-court/.
  5. MK Narayan, Safeguarding Constitutional Morality, The Hindu (Dec. 23, 2019), https://www.thehindu.com/opinion/lead/safeguarding-constitutional-morality/article30383084.ece. 
  6. Ram Madhav, Cultivating Constitutional Morality, Open (Nov. 26, 2019), https://openthemagazine.com/essay/cultivating-constitutional-morality/.
  7. Surabhi Shukla,  Constitutional Morality in the Indian Constitution, University of Oxford (Mar. 12, 2018), https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2018/03-0.

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The Uniform Civil Code: An Overview

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INTRODUCTION

India is a diverse country, where citizens practice different religions. The Uniform Civil Code in such a country is a debatable topic. Article 44 of the Indian Constitution empowers the state to formulate a single law that will govern all religious communities regarding inheritance, divorce, marriage, and adoption.

The Uniform Civil Code intends to replace personal law, which presently governs interpersonal relationships or related matters within different religious communities.

Background of Uniform Civil Code

The background of the Uniform Civil Code dates back to colonial India when the British government in 1835 submitted a report stressing the need for uniformity in the codification of Indian laws. This report recommended keeping the Muslim and Hindu personal laws outside such codification. British rule compelled the government to set up the B. N. Rau Committee to codify Hindu law in 1941. The Hindu Succession Act was adopted in 1956 to amend and codify the laws regarding intestate or unwilled succession among Hindus, Buddhists, Sikhs and Jains. However, for Christians, Parsis and Muslim separate law were made. 

Status in Goa

The State of Goa has adopted the Portuguese Civil Code after Independence. It led to the implementation of the Uniform Civil Code in Goa for its residents. Under this, the married couple holds joint proprietorship in all advantages claimed and obtained by every mate. Parents can’t exclude their children. At any rate, half of the property must be given to them by the parents. Polygamy prohibited for Muslims who have enlisted their marriage in Goa. There, every individual is obliged to the same laws relating to marriage, succession, and divorce. The communities are not under their personal laws.

Implications of Uniform Civil Code

  1. Protection to Vulnerable Section of Society – The implication of the Uniform Civil Code will protect the vulnerable sections of the society, women and religious minorities as envisaged by Dr B. R. Ambedkar. It will also help in promoting nationalistic fervour through unity. 
  2. Gender Justice – Enactment of the Uniform Civil Code will cease all personal laws and the gender biases in the Hindu law, Christian Law and Muslim Law that had challenged the ground of violation of the right to equality by women. 
  3. Adhering to the Ideal of Secularism – The Preamble enshrines the objective of Secularism. There is a need for Common law for all the citizens rather than different law based on religious practices.
  4. Supporting National Integration – Implication of the Uniform Civil Code will lead all the citizens to share the same set of personal law. It will end the politicization of matters associated with discrimination, special privileges and concessions enjoyed by a particular community based on their personal law.[iii]

Challenges to Uniform Civil Code

  1. Constitutional Hurdle – The freedom to practise and propagate any religion under Article 25 of the Indian Constitution conflicts with the concept of equality under Article 14 of the Indian Constitution. 
  2. Sensitive and Tough Task – The enactment of the Uniform Civil Code will be demanding human resources and tie wisely. The government should be unbiased and sensitive while dealing with the majority and minority communities, or it might take the form of disastrous communal violence.
  3. Communal Politics – The demand for the Uniform Civil Code had formulated in the context of communal politics. It is seen as majoritarianism under the grab of social reform by a large section of society. 
  4. Practical Difficulties – Practically, it is not feasible to implement the Uniform Civil Code due to the cultural diversity for personal matters such as marriage. Furthermore, it would be hard to convince each community to replace their old tradition with a new law. 

Recommendations of Law Commissions

The commission emphasizes initiatives to appease the nation’s diversity with a universal argument on human right. Law Commission recommended the codification of all the personal law to test against the anvil of the fundamental rights in the constitution; to remove religious prejudices and stereotypes. Furthermore, it can help reach certain universal principles and facilitate prioritizing equality rather than an imposition of the Uniform Civil Code.

Landmark Cases

  • Mohd. Ahmad Khan v. Shah Bano Begum  

In this case, Mohd. Ahmed Khan v. Shah Bano Begum, Chief Justice Y.V Chandrachud held that a Common Civil Code could remove discrimination among the people of a different religion. It would also help in the loyalty towards law.

  • Sarla Mudgal, President, Kalyani v. Union of India

In the case, Sarla Mudgal, President, Kalyani v. Union of India, a woman filed a petition against her husband who married a second woman without divorce. Also, he converted his religion from Hindu to Islam. 

The court held that the second marriage is void concerning Section 494 of IPC without resolving the first marriage. For better justice raised the need for the Uniform Civil Code.

  • Shayara Bano v. Union of India

This recent case challenged the constitutionality of triple talaq in Muslim personal law. In this case, the husband divorced his wife by saying talaq three times.

The five-judge bench of the Supreme Court held that the practice of triple talaq is unconstitutional as well as un-Islamic. To stop such personal law practices raised the question of the Uniform Civil Code. 

Way Forward

  1. Efforts should be made by the government and society to build trust and to unite with social reformers rather than religious conservatives. 
  2. Emphasis should put on women empowerment for all women of all religion.
  3. Present institutions should be modernized, strengthened and democratized to bring this change.

CONCLUSION

The idea behind the enactment of the Uniform Civil Code is broad and should be understood well. The Uniform Civil Code is a secular code for personal laws that a country like India needs. It deals with the personal laws and the changing scenario of the society. Change is required in our social structures, full of disparities, separations and different things which struggle with our Fundamental Rights. With developing times, the need has appeared for having a uniform civil code for all citizens, independent of religion, guaranteeing that their vital and constitutional rights are secured. Presenting the Uniform Civil Code can also reinforce Secularism and National Integration.

This article is written by Gracy Singh, a student of 2nd year, pursuing BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

BIBLIOGRAPHY 

  1. Krishnadas Rajagopal, What is the debate on uniform civil code all about? The Hindu, Sep 18, 2018, https://www.thehindu.com/news/national/what-is-debate-on-uniform-civil-code-all-about/article24903560.ece.
  2. Scope of Uniform Civil Code in India, Indian Institute of Legal Studies, https://www.iilsindia.com/blogs/scope-of-uniform-civil-code-in-india/.
  3. Uniform Civil Code, Oct 30, 2020, https://www.drishtiias.com/daily-updates/daily-news-editorials/uniform-civil-code-1.
  4. Viraj Gaur, Uniform Civil Code: What It Is & Why It Matters, the quint, Nov 23, 2019, https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-it-matters#read-more.

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Job Opportunity: Associate at Vaish Associates Advocate, New Delhi: Apply Now!

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Our New Delhi office is on the lookout for Lawyers with 2/3 years of PQE in Corporate matters with a reputed law firm. The incumbents would be expected to be team players from a good law school having a good academic record with good drafting and oral communication skills.  

Designation: Associate
Team: General Corporate

Education and Experience:

1 – Essential Requirement: Law graduate from a premier Law School.
2 – Non-essential Requirement: A qualified Company Secretary from the Institute of Company Secretaries of India is desirable, but not a pre-requisite.
3 – Experience: Should have PQE of 2 to 3 years with a reputed corporate law firm.

Essential Functions and Responsibilities:

1 – Drafting opinions on legal matters, including under SEBI and Corporate Laws, Foreign Exchange Management Act, 1999, labor laws, etc.;
2 – Conducting legal due diligence and preparation of relevant reports;
3 – Drafting and vetting of agreements which inter alia include, share purchase agreements, share subscription agreements, shareholders agreements, business transfer agreements, asset purchase agreements, joint venture agreement, employment contracts, consultants contracts, distributorship agreements, NDA, etc.;
4 – Attending negotiation meetings/conferences with seniors and revising the agreements based on the discussion;
5 – Conducting comprehensive legal research and analysis;
6 – General legal/transactional advisory;
7 – Liaison with governmental/ regulatory authorities/ ministries etc.

How to Apply?

Desirous candidates may e-mail their applications to hr@vaishlaw.com (with a subject line: Corporate/Associate/Delhi.

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Concept of Legal Personlity and Subjects of International Law

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INTRODUCTION

“Public International Law is that system of law which is primarily concerned with the relations between States.” It is the body of rules binding on States and international organisations in their interactions with other States, international organisations and individuals. It includes law relating to the functioning of these organisations, their diplomatic relations, conducting of war, trade etc.

Originally, it included law for regulating interactions between the state only. For example: -International Law sets out the legal obligations, responsibilities, and rights of one State against another based on sovereign equality.  But, with time International Law developed to regulate relations between States and non-State actors; for example, individuals, international organizations, and multinational companies. Thus, making it an evolving branch of Law.

Concept of Legal Personality

Personality involves the examinations of certain concepts within the law such as status, capacity, competence as well as nature and extent of particular rights and duties. In any legal system, certain entities are regarded as possessing rights and duties enforceable by law. For example- an individual may prosecute or be prosecuted for assault or a company can sue for breach of contract. All of this is possible because law recognises them as legal persons, possessing certain rights and subject to certain specific duties. But not everybody or everything can be regarded as a legal person, it depends upon the scope and character of law. 

Subjects of International Law

“A subject of International Law can be defined as an entity capable of possessing international rights and duties and having the capacity to protect its rights by bringing international claims”. In other words, it refers to entities endowed with legal personality. It is not necessary for an entity to become a subject of International Law to possess all rights and duties of it. Even if it is competent to perform a few acts or a single act provided by the rules of International Law, it is regarded to have possessed the capacity to become a subject of International Law. 

Theories Regarding Subjects of International Law

As mentioned earlier, International Law is not stagnant and keeps on evolving with time. With the increasing scope of International Law, many other entities have been given international personality. This led to an intriguing question- whether they be treated as subjects of International Law or not? And also, if they were given the international personality then what shall be the qualification of their being the subjects of International Law. So, there are different theories addressing this debate. The most prominent theories are explained below:

States alone are subjects of International Law (REALIST THEORY)

This theory emphasises on the traditional and rather a narrow view that States alone, as sovereign political entities, irrespective of the individuals composing them, are bearers of rights and duties under International Law. They rely upon that International Law came into existence for reforming conduct of only nation States and nobody else.

Prof. Oppenheim’s believes line up with this theory, “The law of nations is primarily a law of international conduct of States and not of their citizens”.

The jurists of this school believe that States are subjects, while individuals who compose these States are objects of International Law. Individuals do not have the procedural capacity to enforce their claims in International Law and if any, it is only through the medium of the States.

Criticism: – This theory underwent severe criticism and is no longer valid with the evolution of International Law as it does not talk about certain rights bestowed upon individuals and the offences for which they can be punished under International Law. Example-Rights bestowed upon slaves, punishment to pirates etc.

In Reparation for injuries suffered in the service of the UN, the Court by implication rejected the theory that only States are subject of International Law. It was held that the UN has the capacity to bring an international claim against the State for obtaining reparation when its agent suffers injury in the performance of his duties involving responsibility of States. 

Individuals alone are subjects of International Law (FICTIONAL THEORY)

Contrary to the traditional view, supporters of this theory believe that on ultimate analysis of International Law, it will be evident that only individuals are the subjects of International Law. The reason given to support this theory is that a State is an abstract concept & does not have the ability to manifest its will. A State is nothing except the aggregate of the individuals. Though the rules of International Law relate expressly to the Nation States but actually the States are the fiction for the individuals composing them.

The chief exponent of this theory, Prof. Kelson held the view that the notion of State is purely a technical legal concept serving to embrace the totality of legal rules applying to a group of persons living in a defined territorial area. He concluded that the difference between state laws and International Law stood dissolved as both laws apply to the individuals and they are for them alone. The former is binding on them directly whereas the latter bind indirectly, through States. 

Prof. Westlake, “The rights and duties of the States are only the rights and duties of men who compose them.”  Ultimately making individuals as subjects of International Law.

Criticism: – This theory labelled State as fiction but in practice, International Law for its major part still deals with the rights and duties of the States. Also, even though individuals possess several rights under International Law, in most cases claim on his behalf can only be brought by the States whose national he is. Thus, making the procedural capacity of the individual to enforce the observance of these rights grossly deficient. 

Hence, it would not be correct to altogether exclude States from being subjects of International Law. 

  • States, individuals and certain non-State entities are subjects of International Law (FUNCTIONAL THEORY)

This theory broadened the scope of International Law and criticised the extreme and narrow views given by the other two theories. This theory not only clubbed the other two theories but also went a step ahead to include international organisations and certain other non-state entities as subjects of International Law. The current position of International Law, therefore, is that besides States, individuals, public international organisations and some non-state entities are subjects of International Law.

1. STATES 

States being original subjects, their primacy in International Law is beyond any doubt.  Modern International Law is created by States, primary sources being treaties and customs. Under Art 34 of the Statute of the ICJ, only States may be parties to cases before the court. 

States enjoy full international personality with all its attendant rights and duties. They have that personality ab initio and ipso jure – from the moment of their birth and by virtue of law.

Oppenheim stated 4 conditions for the existence of States- People, territory, government and sovereignty.

In the Reparations Opinion (1949), the International Court stated that “A State possesses the totality of international rights and duties recognized by International Law”. Thus, highlighting the important elements that went into international personality: treaty-making power, privileges and immunities and the capacity to bring an international claim.

2. INDIVIDUALS

Individuals travelled a long way from being objects to subjects of International Law. It is a matter of fact that they have limited rights under International Law, and even more limited procedural capacity, accorded to them by States. In its development, some rights are conferred upon individuals even against States. Example- European Convention on Human Rights,1950.

3. INTERNATIONAL INSTITUTIONS/ORGANIZATIONS

International organizations are of fairly recent origin, the first probably being the Rhine Commission established after the 1815 Congress of Vienna among the riparian States to regulate navigation on the river in their common interests. 

International organisations are defined as organizations developed by a treaty or other instrument governed by International Law possessing its own legal personality. Examples- World Trade Centre, United Nations etc.

Some of the rights conferred on international organizations are- Treaty making power, privileges and immunities, right to bring an international claim, protection for its agents acting in official capacity etc.

4. NON-STATE ENTITIES

Non-State entities are those types of entities that are not registered as an independent state and also not have a legal status like the States have. The non-State entities have a special type of personality in International Law. Their functions and powers are limited because they exist for a specific function. These entities fall into different categories i.e., Member of the Composed States or federal States, Insurgents and Belligerents, National Liberation movements, international territories. Minorities and indigenous people also come under this category.

CONCLUSION

The developing character of International Law now addresses certain non-state entities, individuals and international organizations besides States as subjects of International Law, though endowed with limited rights. The interest of individuals, their fundamental rights and freedom, etc. have become a primary concern of International Law. Thus, drawing the conclusion that the use of State as a medium and screen for the application of International Law cannot now do justice to all the far-reaching aims of modern system.

This article is written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

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The Hon’ble High Court of Allahabad Denies Providing Custody of ‘Minor’ Husband to his ‘Major’ Wife, as it would amount to an Illicit Relationship between them

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-Report by Saksham Srivastava

The Hon’ble High Court of Judicature, Allahabad, refuses to grant custody of a ‘minor’ husband to his wedded ‘major’ wife. The Hon’ble Court says that such an act would amount to an offence under the POCSO Act. The bench headed by Justice J.J Muneer, is of the view, that the marriage between a minor and major is voidable at the option of the party, as given under the POCSO Act and if allowed to stay together, it would result in sanctioning cohabitation between a minor and major.

Petitioner’s Contention

The petitioner, named as Haushila Devi, is the mother of Manish, age 16 years and who is also made as to the petitioner number one by her mother, alleges in hon’ble court that the respondents, namely, Jyoti and her family members forced her son into procuring matrimonial ties with Jyoti, who is a major and is also the respondent number one in the aforesaid case. The learned counsel on behalf of Haushila Devi, claims that her son, Manish has been illegally confined in the house of the respondents, and the conspiracy of the said offence is carried by Jyoti, her mother Pamila Devi, and her two brothers. The petitioner has filed a writ of habeas corpus (to produce the body) in the Hon’ble High Court of Allahabad under Article 226 of the Constitution of India, to retain the care and custody of the minor child, Manish, back to her mother who is also the natural guardian of Manish, as claimed by the petitioner number two, Haushila Devi. The learned counsel argues further, that, Manish being a minor of age 16 years is under no competence to enter into any such life-long holy agreements like marriage. They claim that the marriage so performed is void under the provisions laid down in the Hindu Marriage Act, 1955 and the Prohibition of Child Marriage Act, 2006. The petitioner further claims that since Manish is a minor as per the law, hence, he cannot be entrusted with the decision-making choice of residing with the strangers, thereby the care and custody should be handed over to the natural guardian, i.e.- her mother, Haushila Devi, also the petitioner number two in the said case.

Respondent’ Contention

The learned counsel on behalf of the respondents, i.e.- Jyoti and her family members, contends that the legislature did not outlay any such provisions of the aftermath about the marriage being solemnized in breach of section 5 (3) of the Hindu Marriage Act, 1955. He argues that the marriage is neither void nor voidable, but valid. As per the law, the penal punishment would be inflicted upon the party who was a major at the time of the commission of such foul act. The learned counsel is of the view that if both the party is minor at the time of such acts, then their parents upon whom the responsibility was bestowed, would be dealt as per the law. He further argues that no matter who suffers the penal consequences, the marriage cannot be solemnized being void or voidable. The learned counsel says that holding a marriage to be void under the Prohibition of Child Marriage Act, it should strictly adhere to the stipulations laid down under section 12 of the said Act, else the marriage could be declared as voidable at the option of the party who was minor at the time of marriage. The respondents argued through their learned counsel that Manish who is a minor of 16 years, is about to attain majority and hence, should be bestowed upon with the responsibility of residing with whomsoever he chooses. Section 17 of the Wards Act, 1890 lays down the provision for the minor to chose his/her natural guardian through their own. Therefore since Manish does not want to stay wither mother, he cannot be compelled by the hon’ble court to do so.

Judgment

The bench of Hon’ble High Court of Allahabad, led by Justice J.J Muneer, in the aforesaid case of Manish and Anr v. State of U.P. and 7 others, that the marriage in the said case is voidable at the option of the party who is a minor, i.e.- Manish of age 16 years. The Hon’ble court said it loud and clear that they cannot allow the care and custody of the Manish to be entrusted with his wife as it would originate an event that could facilitate the cohabitation between the minor and the major, regarded as an offence under the POCSO Act, 2006. The court even considered the essential fact of the POCSO Act, that it prevents any sort of cohabitation between the major and the minor. The Lordship also highlighted the sections under the POCSO Act, which defines the offence and also inlays the penal consequences, under sections 3 & 4 respectively, irrespective of the age or sex of the offender. The Hon’ble court ordered to send the minor into the state facilities like ‘Child Home’ to reside till he attains the age of 18 years and thereby he can choose with whom to reside after completion of his age as major. If he still chooses to stay with her mother during the said period, he would have to apply the Child Welfare Committee Act, 2012. The order should comply immediately.

The Hon’ble Supreme Court denies any sort of Relief to Actress Munmun Dutta over her Abrupt Remarks on the Scheduled Caste Community

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The Tarak Mehta fame actress Munmun Dutta’s FIR for her alleged remarks hurting the sentiments of the SC community was ordered to be stayed by the Supreme Court.

A division bench led by Justices Hemant Gupta and V. Ramasubramanian issued a notice against a plea filed by Dutta against the FIR under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In the petition filed by Dutta, she sought a stay on the FIRs against her while clubbing and consolidating the FIRs registered in various states. Puneet Bali, a senior advocate, represented Dutta and submitted that since Dutta is Bengali, she was unaware of the real meaning of the said word. To which the bench contended, “That is not true. You may not be informed. Everyone knows the meaning. The same word is used in Bangla.”

The Bench directed a stay on 5 FIRs registered on her in different states along with issuing a notice in the petition. The matter has been listed in court after 6 weeks.

-Report by Saksham Srivastava

The Hon’ble High Court of Delhi Adjourns the Plea of Gulfisha Fatima, Involved in the Delhi Riots, Seeking Relief from Judicial Custody

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On Friday, a hearing on plea on habeas corpus filed by Gulfisha Fatima, an accused of offences under UAPA, was adjourned which sought release from Judicial custody by Delhi HC. It was adjourned by a division bench of Justices Naveen Chawla and Asha Menon. It is adjourned to July 5, instead of the court being burdened with heavy load and lack of time for the said plea. The plea will be looked into by the roster bench after vacation.

Fatima was charged under various sections of UAPA for being involved in the riots that happened in North East Delhi from 22.02.2020 to 26.02.2020. She is also accused that she was part of a larger conspiracy behind inciting the Northeast Delhi Riots that took place in February 2020. Fatima also involved Natasha Narwa, Devangana Kalita, and Asif Iqbal who were released from Tihar jail on Thursday by the bail order by Delhi HC on 15 June’20. They are allegedly the masterminds of the conspiracy of the North-East Delhi violence in Feb2020, they are accused of wanting to disturb law and order to National Capital as a reaction to the Citizenship Amendment Act enacted last year.

The Supreme Court of Friday issued a notice in an appeal filed by Delhi Police which challenged the verdict of HC. It said that the impugned judgment shall not be relied on as a precedent by any of the parties before any court. “It is clarified that release of the respondents (Asif Iqbal Tanha, Devangana Kalita & Natasha Narwal) at this stage not interfered with,” it added.

-Report by Saksham Srivastava

HC: Private Institutions/Authorities Discharging the Public Duty to be Thought of ‘State’ Underneath Article 12 of the Constitution

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-Report by Manaswa Sharma

INTRODUCTION

On 01.06.2021 the Calcutta High Court in its bench which includes Justice Shekhar B. Sharaf, withinside the case of Bineeta Patnaik Padhi Vs. Union of India & Ors. held that one Army Public School, Panagarh, is held to be a State below Article 12 of the Constitution because it turned into discharging public responsibility. It, in addition, said that if the petitioner has felt that she stands violated of her valuable essential proper or any felony proper for that matter, it’s miles this Court’s bounden responsibility to look at the propriety of the identical.

FACTS OF THE CASE

The gift Writ petition below Article 226 of the Constitution has been filed with the aid of using the petitioner claiming that at the same time as she turned into discharging her obligations because the Principal of Army Public School at Panagarh and at the same time as serving in her tenure as a prolonged probationer, she turned into terminated with the aid of using the chairman of the identical faculty from such published in violation of each her essential rights in addition to positive statutory rights.

ARGUMENTS ON BEHALF OF THE PETITIONER

Ms. Sonal Sinha found out suggest performing on behalf of the petitioner argued on the subsequent grounds:

  • The suggest at the same time as concluding prayed earlier than the courtroom docket to invoke the writ of mandamus to implement provider situations of instructors serving in non-public unaided instructional establishments.
  • Reliance turned into additionally located upon the choice of the Apex Court at the same time as analyzing the problem of termination of an Assistant Teacher in a non-public unaided group, in which it turned into held that a writ utility is certainly maintainable in such instances whilst opposition to the non-public unaided instructional establishments.
  • It turned into emphasized that although the connection between the petitioner and the respondent turned into taken into consideration to have emanated out of a settlement, it’d now no longer close the doorways of this Court in invoking the writ jurisdiction below Article 226 of the Constitution.
  • It turned into contended that primarily based totally on diverse choices of the Supreme Court the Right to Education is an essential proper below Article 21 of the charter and consequently denial of the identical might bring about the violation of one’s essential proper.
  • It turned into submitted that those non-public establishments supplying training to college students from the age of six years and onwards, along with better training carry out a public responsibility and as a consequence falls below the purview of Article 12.

ARGUMENTS ON BEHALF OF THE RESPONDENT

Mr. Y.J. Dastoor, found out Additional Solicitor General, performing on behalf of the contesting Respondents argued on the subsequent grounds:

  • Mr. Dastoor additionally argued that for the reason that stated faculty turned into a non-public unaided faculty and the AWES that is dealing with it, isn’t a public body, because of the mandate of Article 12 of the Constitution of India consequently the affairs of the stated faculty might be amenable to the writ jurisdiction of this Court.
  • It turned into additionally contended that the jurisdiction below Article 226 should handiest be exercised with the aid of using a constitutional courtroom docket handiest if, an detail of public regulation is worried that is the sine qua non for the invocation of this Court’s powers below Article 226 of the Constitution and such electricity isn’t to be trifled with simple to implement non-public contracts of provider/ or provider associated contracts entered into among aware and ready parties.
  • He additionally submitted that there’s neither a contravention of any statutory proper nor any essential proper assured below Part III of the Constitution of India, as alleged with the aid of using the petitioner.
  • It turned into argued that such writ utility turned into now no longer maintainable for the cause that the stated faculty is a non-public unaided instructional group operated with the aid of using the Army Welfare Education Society.
  • It turned into in addition submitted that the reality that the petitioner turned into serving below a length of prolonged probation and it turned into legally permissible for each the AWES or the stated faculty to assess the petitioner’s overall performance with the aid of using a distinctive feature of her popularity as a probationer, making her eligible for both an affirmation or a discharge from such provider and within side the occasion of a discharge, such settlement couldn’t be enforced thru writ utility below Article 226 of the Constitution of India.

OBSERVATION AND JUDGEMENT OF THE CASE

The following remark has been made with the aid of using the Hon’ble bench of Calcutta High Court:

  • If the petitioner has felt that she stands violated of her valuable essential proper or any felony proper for that matter, it’s miles this Court’s bounden responsibility to look at the propriety of the identical.
  • In the case of Article 226, similarly to the enforcement of an essential proper, a petitioner also can are searching for the enforcement of any felony proper.
  • The stated faculty that is run with the aid of using AWES had come to discharge a public responsibility which stands imposed in phrases of each Article 21A of the Constitution of India in addition to the RTE Act which gave impact to the essential proper in unequivocal phrases.
  • A writ of mandamus may be issued to a non-public body/authority which discharges ‘public function’ below Article 226 of the Constitution of India.

On thinking about the above the objection at the floor of maintainability of the petition turned into rejected. Further, the stated faculty, Army Public School, Panagarh, is held to be a State’ below Article 12 of the Constitution because it turned into discharging public responsibility.