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An aerobics instructor Khing Hnin Wai appeared unheedingly as a convoy of armoured vehicles drove by – accidentally captured Myanmar’s military coup-in-progress in a bizarre video. Myanmar moves back to military rule after exercising democracy for few years, Army Chief Min Aung Hlaing is now holding “legislative, judicial and executive powers” Aung San Suu Kyi who is considered as an icon of democracy was detained under house arrest on Monday hours before the new session of the parliament was about to set up.

Myanmar

Myanmar, also known as Burma, is in South East Asia and neighbours of India, China, Laos, Bangladesh and Thailand There are many ethnic groups including Rohingya Muslims, The name of the country has been a bone of contention, particularly in the early 21st century, focusing mainly on the political legitimacy of those using Myanmar versus Burma The ruling military changed its name in English to Myanmar in 1989, a year after thousands of people were killed in a crackdown on a popular uprising.

Aung San Suu Kyi

Aung San Suu Kyi served as State Counsellor of Myanmar and Minister of Foreign Affairs from 2016 to 2021. She has served as the president of the National League for Democracy (NLD) since 2011, having been the General Secretary from 1988 to 2011. She played a pivotal role in Myanmar’s transition from military junta to partial democracy in the 2010s, She was awarded the Nobel Peace Prize while under house arrest in 199Aung San Suu Kyi actively campaigned for the restoration of democracy in the 1990s which led to her widespread popularity and spent 15 years in detention for creating awareness regarding democratic reforms.

Background

November Elections result has led to an increase in tensions between NLD and military The military -backed party had claimed fraud in vote count demanding a rerun of votes, which the election -commission doesn’t approve of for the lack of any evidence. The political scenario of the junta-led Myanmar began transforming around 2010. In 2008, the military wrote a new Constitution ensuring Generals’ interests would be protected even in the transition. Than Shwe, who was the primary face of Myanmar’s politics from 1992, transformed the power structure, promoted his loyal young soldiers’ Elections, were conducted under the new Constitution. The NLD, denied to recognise the Constitution, and also boycotted the 2010 election, USDP won those elections and in the next five years, Army lost control over the government and society. Political prisoners, including Ms Suu Kyi, were released. Regulations on media, scrutiny over it and censorship fell. Then, U.S. President Barack Obama visited Myanmar in 2012, referring to the betterment of the relationship between Myanmar and the U.S. Ms Suu Kyi’s party also switched from its earlier stance as they embraced the Constitution which army framed in 2010. NLD stood successful at the 2015 elections, which was country’s first free and fair election ever held amongst the various political parties that participated, NLD was successful in making Government, This government brought the hope with them for the implicit transition, to a full-fledged democracy.
But the Constitution, framed in 2008 had enough clauses to prevent such a transformation. Constitution provided that the President must have served military, and the President’s spouse or children “shall not be subject of a foreign power or citizen of a foreign country”. Ms Suu Kyi has two sons, who are British citizens, hence she cannot become the President. The Constitution made it mandatory that the Defence and Interior Ministries would come under the control of the military. 25% of the total seats in Parliament (166 out of the 664-member house) are reserved for the military, giving military a veto power against any proceeding leading, regarding a change in the Constitution. Hence, even after military, allowed the transfer of power to an elected government, it made sure that it will run and drive integral affairs such as defence and internal security policies.

Before 2020 election were about to held, thousands of Rohingya Muslims were killed and many were forced to migrate or run away to neighbouring countries especially in Bangladesh when the army launched a brutal clampdown in Rakhine state over ethnic minorities (Rohingya) on the pretext that they are immigrants and citizenship is denied to them which resulted in the outright victory of NLD winning 396 seats while USDP landing up with only 33 seats.

Reported By – Anjali

The Parliament put an end to all the speculations as it announced that there will be no Winter session for the Parliament due to the outbreak of the Coronavirus pandemic. All political parties have favoured the scrapping down of the session in order to curb Covid spread and would straight away be jumping to the Budget session that takes place in January as per the information received by Parliamentary Affairs Minister Pralhad Joshi. 

The news was confirmed through the means of a letter on Monday which was in response to Congress leader Adhir Ranjan Chaudhary’s demand for a session so that the new farm laws could be discussed owing to its controversial nature as the massive farmer protests have taken over the highways near Delhi. Stress was laid on the need to amend these laws that have been forced through Parliament by the government. 

The justification provided in the letter for not holding the Winter session of the Parliament was said to be in support of the cases of coronavirus which have seen an increase in the winter months and therefore it was crucial to take steps in order to manage the pandemic.

“It would be appropriate to have the Budget Session, 2021 in January, keeping in mind the unprecedented circumstances created by COVID-19 pandemic (sic),” the letter said.

It was decided that since it was the middle of December and the vaccine is supposedly going to come very soon thus all the floor leaders of various political parties were expressing concerns over the increase of the pandemic and they were of the consensus that the Parliament should do away with the Pandemic. 

However, since the Parliament will be now meeting for its Budget session in 2021 which is expected to be held in the last week of January before the budget is announced on the first of February. 

The decision to scrap down the winter session also came forth after the Monsoon Session had to be cut down because many members of Parliament had contracted the Coronavirus disease. Since a large figure of the parliamentarians is elderly it naturally made them more prone to the coronavirus and this is also one of the reasons that had to be considered.

Was The Congress not consulted in making the decision? 

Though the Parliamentary Affairs Minister made it clear through a letter to the Congress that all political parties were in favour of not holding a winter session in order to avoid further Covid spread and would directly beholding the budget session in January however Congress has said that it was never consulted in the first place

Does the scrapping down of the Winter Session have anything to do with the controversial farm laws? 

The monsoon session was held in September after a long delay yet was considered to be one of the most productive sessions as there were 27 bills that were passed in the continuous sittings that were held by the parliament. 3 farm laws which have sparked the current protests were also passed during this session and though the justification given by Parliament for scrapping down the winter session was to curb the spread of the virus however in the opinion of Congress’s Lok Sabha leader Mr Chaudhary the letter addressed to him was actually a way of the government to get away with the mess that has been caused because of the current farmer protests.

Another senior Congress leader Mr Ramesh also tweeted that the government was actually “departing from the truth” and the Leader of Opposition in the Rajya Sabha, Congress Member Ghulam Nabi Azad had actually not been consulted before taking the decision of scrapping down the winter session this year.

Several Congress leaders have demanded that a session be held in the Parliament with necessary precautions at the earliest because they were various concerning issues involving the country that needed to be discussed with included the economy, the situation with China as well as the farmer protests.

Since 17 members of the Lok Sabha and 8 members of the Rajya Sabha had tested positive before the session started and many other members of Parliament who had tested negative initially later contracted the virus during the monsoon session is the reason why the Parliament was of the opinion that it was best to do away with the winter session for this year.

Not being able to hold the winter session owing to the pandemic situation in a time when there is a lot happening in the country that needs to be discussed and addressed can definitely be termed as a crisis that the country is dealing with due to the Covid-19.

Report By- Alifya

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Hina-Haneefa, a trans-woman files an affidavit in the Kerela High court, raising her voice against  Section 6 of the National Cadet Corps (NCC) 1948 Act which allows only males and females to enrol with the Corps.

WHAT IS CONTENTIOUS IN SECTION 6 OF NCC ACT?

This acts provides for the composition of a National Cadet Corps, which comes under the Ministry of Defence. 

Section 6 of the same lays out the enrolment criteria which are as follows:

Enrolment.—(1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over.

 (2) Any student of the female sex of any University or school may offer herself for enrolment as a cadet in the Girls Division: Provided that in the latter case she is of the prescribed age or over

Pertinently,  the act talks about the enrolment of only boys and girls, what is not to be ignored is the fact that this act came into existence in 1948, and the awareness regarding trans-genders identification as the third-gender and their rights came in somewhat later years, In the latest judgement, Navtej Singh Johar v. Union of India section 377 was classified as unconstitutional.

BACKGROUND

Hina-Haneefa, A student of Thiruvananthapuram University College, had gone threw two sex reassignment surgeries and procured a transgender identity card under the Kerala government’s Transgender Policy, 2015

She challenged NCC’s exclusion of transgender people from its programme in the college as she wanted to join NCC.

THE SUBMISSIONS MADE IN RESPONSE 

Kochi: In their submissions, The National Cadet Corps (NCC) informed the Kerala High Court that due to lack of any provision the transgender people cannot be allowed into NCC.

As per the existing policy, The divisions created in NCC as of now were only for girls and boys cadets, the NCC said.

The Central government told the Kerala High Court that

“There is no provision in the law allowing entry of Transgender persons to Armed Forces and National Cadet Corps (NCC) and it is the prerogative of the Central government to decide whether or not the same should be allowed”

In fact, before creating a new division for the third gender, the Central Government has to conduct a major exercise in terms of reviewing infrastructure facilities, modules and facilities that are binding to such divisions. Any induction of a candidate not from male or female gender without due deliberations by the authorities would have far-reaching ramifications. The issue of raising a new division is a policy decision.

In their submissions, they pointed out that Hina has registered herself as a trans-woman in the college and she can’t apply for the post of NCC cadet in the capacity of a female.

It was highlighted that one of the primary aims of NCC was to groom cadets for a future with the Armed forces whereas, there is no provision existing for the entry of transgender people (female/male) in the Indian Armed Forces.

THE COURT’S STANCE

In one of the prior hearings of the matter, the Kerala High Court rebuked the Central Government for failing to formulate a policy to enrol trans persons with the corps. It had commented that the world has developed and the government cannot afford to remain in the 19th century.

“Justice Devan Ramachandran, who was hearing the plea, had commented “Certainly there are three genders, male, female, and transgender. In this case the lady, the petitioner herein, has decided to assign to herself her gender as a woman and she has gone through surgery also. Nothing stops you from admitting her even under the NCC Act as a woman”

Isn’t it the government’s responsibility to protect the rights of the minorities be it trans-genders, religious or minorities in any other capacity, Judiciary has always come forward to play its role?

The High Court of Madras has recently granted relief to a lawyer by setting aside the order of a Principal District and Sessions Judge who had found him guilty of the usage of unparliamentary words in the virtual proceedings of the court. (G Samwell Rajendran v. The Principal District and Sessions Judge, Thoothukudi).

Facts of the case

Advocate G Samwell Rajendran was appearing before the Principal District and Sessions Judge virtually through a WhatsApp video call for an application of bail of his client when he suddenly started uttering certain unparliamentary words. This was observed by the learned Public Prosecutor, Stenographer, Protocol Officer and System Analyst. On this, the learned judge issued a show-cause notice under section 228 of IPC r/w section 345 of Cr.P.C. through email to the advocate concerned and the latter replied by email as well. The learned judge was not satisfied by the email received, and imposed s fine on the advocate of Rs. 200 and referred the matter to the Bar Council, against which the Advocate has filed for a revision this revision case. 

Arguments

The learned Principal District judge of Thootukudi reported that the advocate had during the virtual proceedings of the court had uttered the usage of some unparliamentary words which are unacceptable and cannot be brushed aside. Further, he noted that there is no dispute over the facts and the appellant was given the opportunity to file his reply through mail indicating sufficient time, which the court found unsatisfactory. 

On the other hand, the appellant had mentioned in his reply that because of poor signals he was attending the virtual proceedings in his car and someone had very rashly driven and caused scratches to his car. And in the spark of that moment, the appellant had abused the driver. The appellant had no intention to disrupt the proceedings of the court or insult the court of law. The appellant has further mentioned that he was not given the opportunity for a physical hearing and he, not being accustomed to the technology found a typographical error in his reply. Instead of writing, ‘this would not occur in future’, the judge mistakenly must have misunderstood ‘it would not occur in due course’. Moreover, he also submitted that even after paying the fine, the learned Principal District Judge had referred the matter to the Bar Council. 

Judgment

The high court mentioned in its judgment that considering the fact that the virtual courts have been introduced for the conduction of proceedings and that the appellant had extended his apology, the order of the district court must be set aside along with the fine being refunded to the appellant.

Report By Tanuj

The Supreme Court in its judgement recently held that it had now been made permissible to switch a charge that was under Section 149 of the Indian Penal Code into a charge that was under Section 34 of the Indian Penal Code if the facts prove that the crime was actually committed in the furtherance of an intention that was common.

[THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA & ORS.V. SHAJI POULOSE & ORS]

The bench comprised of Justices  SN V Ramana, Surya Khan and Aniruddha Bose and it observed that Sections 211 to 224 of criminal procedure code give significant flexibility to courts for altering or rectifying the charges as these sections deal in the framing of charges in criminal trials.

The bench while giving the judgement quoted the dictum laid down in the case of Karnail Singh v State of Punjab (1953). It had been held in this case that 

“…if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under section 34 then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to a formal matter.” 

The bench also made observations that even when the Sections 34 and 149 of the Indian Penal Code are both modes for apportioning vicarious liability on either individual members of a group there actually exists some important differences between the two provisions and Section 149 of the Indian Penal Code has been formulated to assign liability on the basis of membership of an unlawful assembly however Section 34 requires such active participation and a prior meeting of minds so that the section can be proved. Such common intention, however, is in reality usually referred to indirectly on the basis of the conduct of the individual and it is very rarely done with the help of direct evidence.

What do Sections 149 and 34 of the Indian Penal Code provide?

Section 149 of the Indian Penal Code provides for the vicarious liability of members who engage in an unlawful assembly for the crime committed by any member of the assembly for the furtherance of a common object and also makes such persons liable for the same punishment. The prerequisite required for invoking this section is that there should be more than 5 or at least 5 persons in the assembly.

Section 34 of the Indian Penal code, on the other hand, holds that whenever a criminal act is done by several persons in the furtherance of any common intention that is held by each one of them then each of such person is liable for that act in the same manner as if it was done by either of them alone.

In the present case, the Supreme Court was actually dealing with a situation where 3 out of a group of 7 persons who had been accused under section 307 of the Indian Penal Code which provides for an attempt to murder had been acquitted. Since the number of convicts under the assembly had now become less than 5 hence the application of Section 149 was not possible in the present case the issue, therefore, arose before the court as to whether it was lawful if the court could make the use of Section 34 of the Indian Penal Code that is the common intention in order to ascribe criminal liabilities to members of the group.

What the Supreme Court opined- 

With the reference made to various precedents, the Supreme Court came to the conclusion that Section 34 of the Indian Penal Code could be used in such a situation if the common intention had already been proved.

The Supreme Court was of the decision that the appellants  had not suffered any unfavourable effects when three of them had been held individually guilty for the offence by the Punjab and Haryana High Court for attempting murder without the aid of Section 149 of the Indian Penal Code thus on the said facts the Supreme Court was of the opinion that the requirements of Section 34 of the Indian Penal Code had been well established in the present case as the attack was apparently premeditated. 

Consequently, the conviction of the appellants under section 307 of the Indian Penal Code for the attempt of murder was thus upheld.

Report By-Alifya Kasimuddin

An interesting dauntless move made by the Principal Sessions Judge Abdul Rashid Malik in 

Sheikh Salman v. JKUT through SHO P/S Saddar, Srinagar

He stated that he gets a mobile call at 9:51 in the morning from the Secretary to Justice Javed Iqbal Wani of the Jammu and Kashmir high court when the bail plea moved by one Sheikh Salman was condemned to be heard. the contents of the call made by Tariq Ahmad Mota, Secretary to Justice Wani, were:

 “I have been directed by the Hon’ble Mr Justice Javed Iqbal Wani to convey you to make sure that no bail is granted to Sheikh Salman. If there is any Anticipatory bail pending, the direction is the same.”

 Ad rem, the president for Jammu and Kashmir High Court Bar Association (J&K HCBA)  Mian Abdul Qayoom is the father-in-law  Of Justice Javed Iqbal Wani.

Mr Qayoom was arrested during the clampdown launched last year, ahead of the Centre’s move to revoke J&K’s special status. Mr Qayoom was upheld in detention under the stringent Public Safety Act (PSA) and his release was opposed by Justice Wani, as government’s advocate.

The applicant in the case was alleged to be accused of being punishable for attempt to Murder, Wrongful restraint and Hurt which are covered under sections 307, 341 and 323 of the Penal code.

Mindfulness of a person’s right to liberty Abdul Rashid Malik took a courageous step

He directed in an order dated December 7 that the bail application be submitted to the Registrar Judicial of the High Court, and requested that the same may be placed before the High Court Chief Justice Gita Mittal 

 On 11th of December The bail application was further directed to Additional District and Session Court, The accused was granted the anticipatory bail in the same.

 Ad rem, In view of the retirement of the Chief justice Gita Mittal, Justice Rajesh Bindal has been appointed by the President as the Acting Chief Justice (CJ) of the Jammu and Kashmir Court

Report By Anjali Singh